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EXHIBIT 4.8
TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT ("Agreement") is made as of
December 11, 2000, by and between PINNACLE PRODUCTS, INC., a Wisconsin
corporation ("Grantor"), and ABN AMRO BANK N.V., as contractual representative
(the "Administrative Agent") for its benefit and the benefit of the "Holders of
Secured Obligations" (as such term is defined in the "Credit Agreement" defined
below).
WITNESSETH:
WHEREAS, Sybron Dental Management, Inc., the Subsidiary Swing
Line Borrowers from time to time party thereto, Xxxx Corporation and Ormco
Corporation, as the "Borrowers", Sybron Dental Specialties, Inc., as the
"Parent", the institutions from time to time party thereto as "Lenders", the
Administrative Agent, The Chase Manhattan Bank, as "Syndication Agent and First
Union National Bank, as "Documentation Agent" are parties to that certain Credit
Agreement dated as of November 28, 2000 (as the same may hereafter be modified,
amended, restated or supplemented from time to time, the "Credit Agreement"),
pursuant to which the Lenders may, from time to time, extend credit to
Borrowers; and
WHEREAS, Grantor and the Administrative Agent are parties to
that certain Security Agreement dated as of December 11, 2000 (as the same may
hereafter be modified, amended, restated or supplemented from time to time, the
"Security Agreement"), pursuant to which Grantor has granted a security interest
in certain of its assets to the Administrative Agent for the benefit of the
Administrative Agent and the Holders of Secured Obligations; and
WHEREAS, the Lenders have required Grantor to execute and
deliver this Agreement (i) in order to secure the prompt and complete payment,
observance and performance of all of the "Secured Obligations" (as defined in
the Credit Agreement) and (ii) as a condition precedent to any extension of
credit to the Borrowers under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor agrees as follows:
SECTION 1. Defined Terms.
(a) Unless otherwise defined herein, each capitalized term used herein
that is defined in the Credit Agreement shall have the meaning specified for
such term in the Credit Agreement. Unless otherwise defined herein or in the
Credit Agreement, each capitalized term used herein that is defined in the
Security Agreement shall have the meaning specified for such term in the
Security Agreement.
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(b) The words "hereof," "herein" and "hereunder" and words of like
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 references are to
this Agreement unless otherwise specified.
(c) All terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural, and vice versa, unless otherwise
specified.
SECTION 2. Incorporation of Premises. The premises set forth above are
incorporated into this Agreement by this reference thereto and are made a part
hereof.
SECTION 3. Incorporation of the Credit Agreement. The Credit Agreement
and the terms and provisions thereof are hereby incorporated herein in their
entirety by this reference thereto.
SECTION 4. Security Interest in Trademarks. To secure the complete and
timely payment, performance and satisfaction of all of the Secured Obligations,
Grantor hereby grants to the Administrative Agent, for the benefit of the
Holders of Secured Obligations, a security interest in, as and by way of a first
mortgage and security interest having priority over all other security interests
(other than Permitted Existing Liens), with power of sale to the extent
permitted by applicable law, all of Grantor's now owned or existing and
hereafter acquired or arising:
(a) domestic trademarks, registered trademarks, trademark applications,
service marks, registered service marks and service xxxx applications,
including, without limitation, the trademarks, registered trademarks, trademark
applications, service marks, registered service marks and service xxxx
applications listed on Schedule A attached hereto and made a part hereof, and
(i) all renewals thereof, (ii) all income, royalties, damages and payments now
and hereafter due and/or payable under and with respect thereto, including,
without limitation, payments under all licenses entered into in connection
therewith and damages and payments for past or future infringements or dilutions
thereof, (iii) the right to xxx for past, present and future infringements and
dilutions thereof, (iv) the goodwill of Grantor's business symbolized by the
foregoing and connected therewith, and (v) all of Grantor's rights corresponding
thereto throughout the world (all of the foregoing trademarks, registered
trademarks and trademark applications, and service marks, registered service
marks and service xxxx applications, together with the items described in
clauses (i)-(v) in this Section 4(a), are sometimes hereinafter individually
and/or collectively referred to as the "Trademarks"); and
(b) rights under or interest in any trademark license agreements or
service xxxx license agreements with any other party, whether Grantor is a
licensee or licensor under any such license agreement, including, without
limitation, those trademark license agreements and service xxxx license
agreements listed on Schedule B attached hereto and made a part hereof, together
with any goodwill connected with and symbolized by any such trademark license
agreements or service xxxx license agreements, and the right to prepare for sale
and sell any and all Inventory now or hereafter owned by Grantor and now or
hereafter covered by such licenses (all of the foregoing are hereinafter
referred to collectively as the "Licenses").
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SECTION 5. Restrictions on Future Agreements. Grantor will not, after
the date hereof, without the Administrative Agent's prior written consent, enter
into any agreement, including, without limitation, any license agreement, which
is inconsistent with this Agreement, and Grantor further agrees that it will not
take any action, and will use its reasonable commercial efforts not to permit
any action to be taken by others, including, without limitation, licensees, or
fail to take any action, which would in any respect affect the validity or
enforcement of the rights transferred to the Administrative Agent under this
Agreement or the rights associated with the Trademarks or Licenses.
SECTION 6. New Trademarks and Licenses. Grantor represents and warrants
that, from and after the Closing Date, (a) the Trademarks listed on Schedule A
include all of the domestic trademarks, registered trademarks, trademark
applications, service marks, registered service marks and service xxxx
applications now owned or held by Grantor, (b) the Licenses listed on Schedule B
include all of the trademark license agreements and service xxxx license
agreements under which Grantor is the licensee or licensor and (c) no liens,
claims or security interests in such Trademarks and Licenses have been granted
by Grantor to any Person other than the Administrative Agent or to holders of
Permitted Existing Liens. If, prior to the termination of this Agreement,
Grantor shall (i) obtain rights to any new domestic trademarks, registered
trademarks, trademark applications, service marks, registered service marks or
service xxxx applications, (ii) become entitled to the benefit of any domestic
trademarks, registered trademarks, trademark applications, trademark licenses,
trademark license renewals, service marks, registered service marks, service
xxxx applications, service xxxx licenses or service xxxx license renewals
whether as licensee or licensor, or (iii) enter into any new trademark license
agreement or service xxxx license agreement, the provisions of Section 4 above
shall automatically apply thereto. Grantor shall give to the Administrative
Agent written notice of events described in clauses (i), (ii) and (iii) of the
preceding sentence promptly after the occurrence thereof, but in any event not
less frequently than on a quarterly basis. Grantor hereby authorizes the
Administrative Agent to modify this Agreement unilaterally (i) by amending
Schedule A to include any future domestic trademarks, registered trademarks,
trademark applications, service marks, registered service marks and service xxxx
applications and by amending Schedule B to include any future trademark license
agreements and service xxxx license agreements, which are Trademarks or Licenses
under Section 4 above or under this Section 6, and (ii) by filing, in addition
to and not in substitution for this Agreement, a duplicate original of this
Agreement containing on Schedule A or B thereto, as the case may be, such future
trademarks, registered trademarks, trademark applications, service marks,
registered service marks and service xxxx applications, and trademark license
agreements and service xxxx license agreements.
SECTION 7. Royalties. Grantor hereby agrees that the use by the
Administrative Agent of the Trademarks and Licenses as authorized hereunder in
connection with the Administrative Agent's exercise of its rights and remedies
under Section 15 or pursuant to Section 17 of the Security Agreement shall be
coextensive with Grantor's rights thereunder and with respect thereto and
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without any liability for royalties or other related charges from the
Administrative Agent or the other Holders of Secured Obligations to Grantor.
SECTION 8. Right to Inspect; Further Assignments and Security
Interests. The Administrative Agent may at all reasonable times (and at any time
when an Unmatured Default or Default exists) have access to, examine, audit,
make copies (at Grantor's expense) and extracts from and inspect Grantor's
premises and examine Grantor's books, records and operations relating to the
Trademarks and Licenses; provided, that in conducting such inspections and
examinations, the Administrative Agent shall use reasonable efforts not to
disturb unnecessarily the conduct of Grantor's ordinary business operations.
From and during the continuance of a Default, Grantor agrees that the
Administrative Agent, or a conservator appointed by the Administrative Agent,
shall have the right to establish such reasonable additional product quality
controls as the Administrative Agent or such conservator, in its sole and
absolute judgment, may deem necessary to assure maintenance of the quality of
products sold by Grantor under the Trademarks and the Licenses or in connection
with which such Trademarks and Licenses are used. Grantor agrees (i) not to sell
or assign its respective interests in, or grant any license under, the
Trademarks or the Licenses without the prior and express written consent of the
Administrative Agent (which consent, prior to the occurrence and continuance of
a Default, shall not be unreasonably withheld), (ii) to maintain the quality of
such products as of the date hereof, and (iii) not to reduce the quality of such
products in any material respect without the Administrative Agent's prior and
express written consent.
SECTION 9. Nature and Continuation of the Administrative Agent's
Security Interest; Termination of the Administrative Agent's Security Interest.
This Agreement is made for collateral security purposes only. This Agreement
shall create a continuing security interest in the Trademarks and Licenses and
shall terminate only when the Secured Obligations have been paid in full in cash
and the Credit Agreement and the Security Agreement have been terminated. When
this Agreement has terminated, the Administrative Agent shall promptly execute
and deliver to Grantor, at Grantor's expense, all termination statements and
other instruments as may be necessary or proper to terminate the Administrative
Agent's security interest in the Trademarks and the Licenses, subject to any
disposition thereof which may have been made by the Administrative Agent
pursuant to this Agreement or the Security Agreement.
SECTION 10. Duties of Grantor. Grantor shall have the duty, to the
extent desirable in the normal conduct of Grantor's business and consistent with
the exercise of its reasonable business judgment, to: (i) prosecute diligently
any trademark application or service xxxx application that is part of the
Trademarks pending as of the date hereof or hereafter until the termination of
this Agreement, and (ii) make application for trademarks or service marks.
Grantor further agrees (i) not to abandon any Trademark or License unless the
Grantor reasonably determines that it is in its best interests to do so and such
abandonment will not materially impair Grantor's ability to maintain its
business in the ordinary course, and (ii) to use its reasonable commercial
efforts to maintain in full force and effect the Trademarks and the Licenses
that are or shall be necessary or economically desirable in the operation of
Grantor's business. Any expenses incurred in
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connection with the foregoing shall be borne by Grantor. Neither the
Administrative Agent nor any of the Holders of Secured Obligations shall have
any duty with respect to the Trademarks and Licenses. Without limiting the
generality of the foregoing, neither the Administrative Agent nor any of the
Holders of Secured Obligations shall be under any obligation to take any steps
necessary to preserve rights in the Trademarks or Licenses against any other
parties, but the Administrative Agent may do so at its option from and after the
occurrence of a Default, and all expenses incurred in connection therewith shall
be for the sole account of Grantor and shall be added to the Secured Obligations
secured hereby.
SECTION 11. The Administrative Agent's Right to Xxx. From and after the
occurrence of a Default, the Administrative Agent shall have the right, but
shall not be obligated, to bring suit in its own name to enforce the Trademarks
and the Licenses and, if the Administrative Agent shall commence any such suit,
Grantor shall, at the request of the Administrative Agent, do any and all lawful
acts and execute any and all proper documents required by the Administrative
Agent in aid of such enforcement. Grantor shall, upon demand, promptly reimburse
the Administrative Agent for all costs and expenses incurred by the
Administrative Agent in the exercise of its rights under this Section 11
(including, without limitation, reasonable fees and expenses of attorneys and
paralegals for the Administrative Agent).
SECTION 12. Waivers. The Administrative Agent's failure, at any time or
times hereafter, to require strict performance by Grantor of any provision of
this Agreement shall not waive, affect or diminish any right of the
Administrative Agent thereafter to demand strict compliance and performance
therewith nor shall any course of dealing between Grantor and the Administrative
Agent have such effect. No single or partial exercise of any right hereunder
shall preclude any other or further exercise thereof or the exercise of any
other right. None of the undertakings, agreements, warranties, covenants and
representations of Grantor contained in this Agreement shall be deemed to have
been suspended or waived by the Administrative Agent unless such suspension or
waiver is in writing signed by an officer of the Administrative Agent and
directed to Grantor specifying such suspension or waiver.
SECTION 13. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but the provisions of this Agreement are severable, and if any
clause or provision shall be held invalid and unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part hereof, in such jurisdiction, and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
SECTION 14. Modification. This Agreement cannot be altered, amended or
modified in any way, except as specifically provided in Section 6 hereof or by a
writing signed by the parties hereto.
SECTION 15. Cumulative Remedies; Power of Attorney. Grantor hereby
irrevocably designates, constitutes and appoints the Administrative Agent (and
all Persons designated by the
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Administrative Agent in its sole and absolute discretion) as Grantor's true and
lawful attorney-in-fact, and authorizes the Administrative Agent and any of the
Administrative Agent's designees, in Grantor's or the Administrative Agent's
name, to take any action and execute any instrument which the Administrative
Agent may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, from and during the continuance of a
Default and the giving by the Administrative Agent of notice to Grantor of the
Administrative Agent's intention to enforce its rights and claims against
Grantor, to (i) endorse Grantor's name on all applications, documents, papers
and instruments necessary or desirable for the Administrative Agent in the use
of the Trademarks or the Licenses, (ii) assign, pledge, convey or otherwise
transfer title in or dispose of the Trademarks or the Licenses to anyone on
commercially reasonable terms, (iii) grant or issue any exclusive or
nonexclusive license under the Trademarks or, to the extent permitted, under the
Licenses, to anyone on commercially reasonable terms, and (iv) take any other
actions with respect to the Trademarks or the Licenses as the Administrative
Agent deems in its own or the Holders of Secured Obligations' best interest.
Grantor hereby ratifies all that such attorney shall lawfully do or cause to be
done by virtue hereof. This power of attorney is coupled with an interest and
shall be irrevocable until all of the Obligations shall have been paid in full
in cash and the Credit Agreement shall have been terminated. Grantor
acknowledges and agrees that this Agreement is not intended to limit or restrict
in any way the rights and remedies of the Administrative Agent or the other
Holders of Secured Obligations under the Security Agreement, but rather is
intended to facilitate the exercise of such rights and remedies.
The Administrative Agent shall have, in addition to all other
rights and remedies given it by the terms of this Agreement, all rights and
remedies allowed by law and the rights and remedies of a secured party under the
Uniform Commercial Code as enacted in any jurisdiction in which the Trademarks
or the Licenses may be located or deemed located. Upon the occurrence and during
the continuance of a Default and the election by the Administrative Agent to
exercise any of its remedies under Section 9-504 or Section 9-505 of the Uniform
Commercial Code with respect to the Trademarks and Licenses, Grantor agrees to
assign, convey and otherwise transfer title in and to the Trademarks and the
Licenses to the Administrative Agent or any transferee of the Administrative
Agent and to execute and deliver to the Administrative Agent or any such
transferee all such agreements, documents and instruments as may be necessary,
in the Administrative Agent's sole discretion, to effect such assignment,
conveyance and transfer. All of the Administrative Agent's rights and remedies
with respect to the Trademarks and the Licenses, whether established hereby, by
the Security Agreement, by any other agreements or by law, shall be cumulative
and may be exercised separately or concurrently. Notwithstanding anything set
forth herein to the contrary, it is hereby expressly agreed that upon the
occurrence and during the continuance of a Default, the Administrative Agent may
exercise any of the rights and remedies provided in this Agreement, the Security
Agreement and any of the other Loan Documents. Grantor agrees that any
notification of intended disposition of any of the Trademarks and Licenses
required by law shall be deemed reasonably and properly given if given at least
ten (10) days before such disposition.
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SECTION 16. Successors and Assigns. This Agreement shall be binding
upon Grantor and its successors and assigns, and shall inure to the benefit of
each of the Holders of Secured Obligations and its nominees, successors and
assigns. Grantor's successors and assigns shall include, without limitation, a
receiver, trustee or debtor-in-possession of or for Grantor; provided, however,
that Grantor shall not voluntarily assign or transfer its rights or obligations
hereunder without the Administrative Agent's prior written consent.
SECTION 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION
735 ILCS SECTION 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT
OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS. ANY DISPUTE BETWEEN THE PLEDGOR AND THE
ADMINISTRATIVE AGENT OR ANY LENDER, OR ANY OTHER HOLDER OF SECURED OBLIGATIONS
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT, AND WHETHER ARISING
IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET
SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
SECTION 18. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(a) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (b), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (a) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(b) OTHER JURISDICTIONS. THE GRANTOR AGREES THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF SECURED OBLIGATIONS SHALL HAVE THE
RIGHT TO PROCEED AGAINST THE GRANTOR OR ITS RESPECTIVE PROPERTY IN A COURT IN
ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER SUCH
GRANTOR OR (2) REALIZE ON THE COLLATERAL GRANTED IN CONNECTION HEREWITH, OR (3)
IN
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ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH
PERSON. THE GRANTOR AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS
IN ANY PROCEEDING BROUGHT BY SUCH PERSON IN A LOCATION OUTSIDE OF ILLINOIS TO
REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF SUCH PERSON; PROVIDED THAT THE GRANTOR'S RIGHT TO ASSERT
PERMISSIVE COUNTERCLAIMS IN STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS
SHALL BE PRESERVED. THE GRANTOR WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (b).
(c) VENUE. EACH OF THE LENDERS AND THE GRANTOR IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(d) THE GRANTOR WAIVES PERSONAL SERVICE OF ANY PROCESS UPON IT AND
IRREVOCABLY APPOINTS CT CORPORATION, WITH OFFICES AT 000 XXXXX XXXXXXX XXXXXX,
XXXXXXX, XXXXXXXX 00000, AS THE GRANTOR'S AGENT FOR THE PURPOSE OF ACCEPTING
SERVICE OF PROCESS ISSUED BY ANY COURT. NOTHING HEREIN SHALL IN ANY WAY BE
DEEMED TO LIMIT THE ABILITY OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE
ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.
(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(f) WAIVER OF BOND. THE GRANTOR WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO REALIZE ON THE COLLATERAL, ENFORCE
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ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE
BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT
INJUNCTION, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
(g) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 18, WITH ITS COUNSEL.
SECTION 19. Notices. All notices or other communications hereunder
shall be given in the manner and to the address of the Parent Borrowers, in the
case of the Grantor, and to the address of the Administrative Agent, in each
case, as set forth in the Credit Agreement.
SECTION 20. Section Titles. The section titles herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
SECTION 21. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 22. Merger. This Agreement represents the final agreement of
the Grantor and the Administrative Agent with respect to the matters contained
herein and may not be contradicted by evidence of prior or contemporaneous
agreements, or subsequent oral agreements, between the Grantor and the
Administrative Agent or any Holder of Secured Obligations
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
PINNACLE PRODUCTS, INC.
By:
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Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Representative
ATTEST:
By:
-----------------------------
Title:
Accepted and agreed to as of the
day and year first above written.
ABN AMRO BANK N.V., as
Administrative Agent
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
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SCHEDULE A
to
Trademark Security Agreement
Dated as of December 11, 2000
See attached
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SCHEDULE B
to
Trademark Security Agreement
Dated as of December 11, 2000
See attached
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STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing Trademark Security Agreement was acknowledged
before me this 7th day of December, 2000, by Xxxxxxx X. Xxxxxxx, an Authorized
Representative of Pinnacle Products, Inc., a Wisconsin corporation, on behalf of
such corporation.
-------------------------------
Notary Public
Xxxx County, Illinois
My commission expires: 12/15/02
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STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing Trademark Security Agreement was acknowledged
before me this ____ day of December, 2000, by _________________________, a
_________________________ and ________________________________, a
____________________________of ABN AMRO Bank N.V., on behalf of such
institution.
-----------------------------
Notary Public
Xxxx County, Illinois
My commission expires:_______
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TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT ("Agreement") is made as of
December 11, 2000, by and between XXXX CORPORATION, a Delaware corporation
("Grantor"), and ABN AMRO BANK N.V., as contractual representative (the
"Administrative Agent") for its benefit and the benefit of the "Holders of
Secured Obligations" (as such term is defined in the "Credit Agreement" defined
below).
WITNESSETH:
WHEREAS, Sybron Dental Management, Inc., the Subsidiary Swing
Line Borrowers from time to time party thereto, Xxxx Corporation and Ormco
Corporation, as the "Borrowers", Sybron Dental Specialties, Inc., as the
"Parent", the institutions from time to time party thereto as "Lenders", the
Administrative Agent, The Chase Manhattan Bank, as "Syndication Agent and First
Union National Bank, as "Documentation Agent" are parties to that certain Credit
Agreement dated as of November 28, 2000 (as the same may hereafter be modified,
amended, restated or supplemented from time to time, the "Credit Agreement"),
pursuant to which the Lenders may, from time to time, extend credit to
Borrowers; and
WHEREAS, Grantor and the Administrative Agent are parties to
that certain Security Agreement dated as of December 11, 2000 (as the same may
hereafter be modified, amended, restated or supplemented from time to time, the
"Security Agreement"), pursuant to which Grantor has granted a security interest
in certain of its assets to the Administrative Agent for the benefit of the
Administrative Agent and the Holders of Secured Obligations; and
WHEREAS, the Lenders have required Grantor to execute and
deliver this Agreement (i) in order to secure the prompt and complete payment,
observance and performance of all of the "Secured Obligations" (as defined in
the Credit Agreement) and (ii) as a condition precedent to any extension of
credit to the Borrowers under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor agrees as follows:
SECTION 1. Defined Terms.
(a) Unless otherwise defined herein, each capitalized term used herein
that is defined in the Credit Agreement shall have the meaning specified for
such term in the Credit Agreement. Unless otherwise defined herein or in the
Credit Agreement, each capitalized term used herein that is defined in the
Security Agreement shall have the meaning specified for such term in the
Security Agreement.
SIDLEY & AUSTIN
2081398
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(b) The words "hereof," "herein" and "hereunder" and words of like
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 references are to
this Agreement unless otherwise specified.
(c) All terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural, and vice versa, unless otherwise
specified.
SECTION 2. Incorporation of Premises. The premises set forth above are
incorporated into this Agreement by this reference thereto and are made a part
hereof.
SECTION 3. Incorporation of the Credit Agreement. The Credit Agreement
and the terms and provisions thereof are hereby incorporated herein in their
entirety by this reference thereto.
SECTION 4. Security Interest in Trademarks. To secure the complete and
timely payment, performance and satisfaction of all of the Secured Obligations,
Grantor hereby grants to the Administrative Agent, for the benefit of the
Holders of Secured Obligations, a security interest in, as and by way of a first
mortgage and security interest having priority over all other security interests
(other than Permitted Existing Liens), with power of sale to the extent
permitted by applicable law, all of Grantor's now owned or existing and
hereafter acquired or arising:
(a) domestic trademarks, registered trademarks, trademark applications,
service marks, registered service marks and service xxxx applications,
including, without limitation, the trademarks, registered trademarks, trademark
applications, service marks, registered service marks and service xxxx
applications listed on Schedule A attached hereto and made a part hereof, and
(i) all renewals thereof, (ii) all income, royalties, damages and payments now
and hereafter due and/or payable under and with respect thereto, including,
without limitation, payments under all licenses entered into in connection
therewith and damages and payments for past or future infringements or dilutions
thereof, (iii) the right to xxx for past, present and future infringements and
dilutions thereof, (iv) the goodwill of Grantor's business symbolized by the
foregoing and connected therewith, and (v) all of Grantor's rights corresponding
thereto throughout the world (all of the foregoing trademarks, registered
trademarks and trademark applications, and service marks, registered service
marks and service xxxx applications, together with the items described in
clauses (i)-(v) in this Section 4(a), are sometimes hereinafter individually
and/or collectively referred to as the "Trademarks"); and
(b) rights under or interest in any trademark license agreements or
service xxxx license agreements with any other party, whether Grantor is a
licensee or licensor under any such license agreement, including, without
limitation, those trademark license agreements and service xxxx license
agreements listed on Schedule B attached hereto and made a part hereof, together
with any goodwill connected with and symbolized by any such trademark license
agreements or service xxxx license agreements, and the right to prepare for sale
and sell any and all Inventory now or hereafter owned by Grantor and now or
hereafter covered by such licenses (all of the foregoing are hereinafter
referred to collectively as the "Licenses").
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SECTION 5. Restrictions on Future Agreements. Grantor will not, after
the date hereof, without the Administrative Agent's prior written consent, enter
into any agreement, including, without limitation, any license agreement, which
is inconsistent with this Agreement, and Grantor further agrees that it will not
take any action, and will use its reasonable commercial efforts not to permit
any action to be taken by others, including, without limitation, licensees, or
fail to take any action, which would in any respect affect the validity or
enforcement of the rights transferred to the Administrative Agent under this
Agreement or the rights associated with the Trademarks or Licenses.
SECTION 6. New Trademarks and Licenses. Grantor represents and warrants
that, from and after the Closing Date, (a) the Trademarks listed on Schedule A
include all of the domestic trademarks, registered trademarks, trademark
applications, service marks, registered service marks and service xxxx
applications now owned or held by Grantor, (b) the Licenses listed on Schedule B
include all of the trademark license agreements and service xxxx license
agreements under which Grantor is the licensee or licensor and (c) no liens,
claims or security interests in such Trademarks and Licenses have been granted
by Grantor to any Person other than the Administrative Agent or to holders of
Permitted Existing Liens. If, prior to the termination of this Agreement,
Grantor shall (i) obtain rights to any new domestic trademarks, registered
trademarks, trademark applications, service marks, registered service marks or
service xxxx applications, (ii) become entitled to the benefit of any domestic
trademarks, registered trademarks, trademark applications, trademark licenses,
trademark license renewals, service marks, registered service marks, service
xxxx applications, service xxxx licenses or service xxxx license renewals
whether as licensee or licensor, or (iii) enter into any new trademark license
agreement or service xxxx license agreement, the provisions of Section 4 above
shall automatically apply thereto. Grantor shall give to the Administrative
Agent written notice of events described in clauses (i), (ii) and (iii) of the
preceding sentence promptly after the occurrence thereof, but in any event not
less frequently than on a quarterly basis. Grantor hereby authorizes the
Administrative Agent to modify this Agreement unilaterally (i) by amending
Schedule A to include any future domestic trademarks, registered trademarks,
trademark applications, service marks, registered service marks and service xxxx
applications and by amending Schedule B to include any future trademark license
agreements and service xxxx license agreements, which are Trademarks or Licenses
under Section 4 above or under this Section 6, and (ii) by filing, in addition
to and not in substitution for this Agreement, a duplicate original of this
Agreement containing on Schedule A or B thereto, as the case may be, such future
trademarks, registered trademarks, trademark applications, service marks,
registered service marks and service xxxx applications, and trademark license
agreements and service xxxx license agreements.
SECTION 7. Royalties. Grantor hereby agrees that the use by the
Administrative Agent of the Trademarks and Licenses as authorized hereunder in
connection with the Administrative Agent's exercise of its rights and remedies
under Section 15 or pursuant to Section 17 of the Security Agreement shall be
coextensive with Grantor's rights thereunder and with respect thereto and
without any liability for royalties or other related charges from the
Administrative Agent or the other Holders of Secured Obligations to Grantor.
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SECTION 8. Right to Inspect; Further Assignments and Security
Interests. The Administrative Agent may at all reasonable times (and at any time
when an Unmatured Default or Default exists) have access to, examine, audit,
make copies (at Grantor's expense) and extracts from and inspect Grantor's
premises and examine Grantor's books, records and operations relating to the
Trademarks and Licenses; provided, that in conducting such inspections and
examinations, the Administrative Agent shall use reasonable efforts not to
disturb unnecessarily the conduct of Grantor's ordinary business operations.
From and during the continuance of a Default, Grantor agrees that the
Administrative Agent, or a conservator appointed by the Administrative Agent,
shall have the right to establish such reasonable additional product quality
controls as the Administrative Agent or such conservator, in its sole and
absolute judgment, may deem necessary to assure maintenance of the quality of
products sold by Grantor under the Trademarks and the Licenses or in connection
with which such Trademarks and Licenses are used. Grantor agrees (i) not to sell
or assign its respective interests in, or grant any license under, the
Trademarks or the Licenses without the prior and express written consent of the
Administrative Agent (which consent, prior to the occurrence and continuance of
a Default, shall not be unreasonably withheld), (ii) to maintain the quality of
such products as of the date hereof, and (iii) not to reduce the quality of such
products in any material respect without the Administrative Agent's prior and
express written consent.
SECTION 9. Nature and Continuation of the Administrative Agent's
Security Interest; Termination of the Administrative Agent's Security Interest.
This Agreement is made for collateral security purposes only. This Agreement
shall create a continuing security interest in the Trademarks and Licenses and
shall terminate only when the Secured Obligations have been paid in full in cash
and the Credit Agreement and the Security Agreement have been terminated. When
this Agreement has terminated, the Administrative Agent shall promptly execute
and deliver to Grantor, at Grantor's expense, all termination statements and
other instruments as may be necessary or proper to terminate the Administrative
Agent's security interest in the Trademarks and the Licenses, subject to any
disposition thereof which may have been made by the Administrative Agent
pursuant to this Agreement or the Security Agreement.
SECTION 10. Duties of Grantor. Grantor shall have the duty, to the
extent desirable in the normal conduct of Grantor's business and consistent with
the exercise of its reasonable business judgment, to: (i) prosecute diligently
any trademark application or service xxxx application that is part of the
Trademarks pending as of the date hereof or hereafter until the termination of
this Agreement, and (ii) make application for trademarks or service marks.
Grantor further agrees (i) not to abandon any Trademark or License unless the
Grantor reasonably determines that it is in its best interests to do so and such
abandonment will not materially impair Grantor's ability to maintain its
business in the ordinary course, and (ii) to use its reasonable commercial
efforts to maintain in full force and effect the Trademarks and the Licenses
that are or shall be necessary or economically desirable in the operation of
Grantor's business. Any expenses incurred in connection with the foregoing shall
be borne by Grantor. Neither the Administrative Agent nor any of the Holders of
Secured Obligations shall have any duty with respect to the Trademarks and
Licenses. Without limiting the generality of the foregoing, neither the
Administrative Agent nor any of the Holders of Secured Obligations shall be
under any obligation to take any steps
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necessary to preserve rights in the Trademarks or Licenses against any other
parties, but the Administrative Agent may do so at its option from and after the
occurrence of a Default, and all expenses incurred in connection therewith shall
be for the sole account of Grantor and shall be added to the Secured Obligations
secured hereby.
SECTION 11. The Administrative Agent's Right to Xxx. From and after the
occurrence of a Default, the Administrative Agent shall have the right, but
shall not be obligated, to bring suit in its own name to enforce the Trademarks
and the Licenses and, if the Administrative Agent shall commence any such suit,
Grantor shall, at the request of the Administrative Agent, do any and all lawful
acts and execute any and all proper documents required by the Administrative
Agent in aid of such enforcement. Grantor shall, upon demand, promptly reimburse
the Administrative Agent for all costs and expenses incurred by the
Administrative Agent in the exercise of its rights under this Section 11
(including, without limitation, reasonable fees and expenses of attorneys and
paralegals for the Administrative Agent).
SECTION 12. Waivers. The Administrative Agent's failure, at any time or
times hereafter, to require strict performance by Grantor of any provision of
this Agreement shall not waive, affect or diminish any right of the
Administrative Agent thereafter to demand strict compliance and performance
therewith nor shall any course of dealing between Grantor and the Administrative
Agent have such effect. No single or partial exercise of any right hereunder
shall preclude any other or further exercise thereof or the exercise of any
other right. None of the undertakings, agreements, warranties, covenants and
representations of Grantor contained in this Agreement shall be deemed to have
been suspended or waived by the Administrative Agent unless such suspension or
waiver is in writing signed by an officer of the Administrative Agent and
directed to Grantor specifying such suspension or waiver.
SECTION 13. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but the provisions of this Agreement are severable, and if any
clause or provision shall be held invalid and unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part hereof, in such jurisdiction, and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
SECTION 14. Modification. This Agreement cannot be altered, amended or
modified in any way, except as specifically provided in Section 6 hereof or by a
writing signed by the parties hereto.
SECTION 15. Cumulative Remedies; Power of Attorney. Grantor hereby
irrevocably designates, constitutes and appoints the Administrative Agent (and
all Persons designated by the Administrative Agent in its sole and absolute
discretion) as Grantor's true and lawful attorney-in-fact, and authorizes the
Administrative Agent and any of the Administrative Agent's designees, in
Grantor's or the Administrative Agent's name, to take any action and execute any
instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation, from
and during the continuance of a
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20
Default and the giving by the Administrative Agent of notice to Grantor of the
Administrative Agent's intention to enforce its rights and claims against
Grantor, to (i) endorse Grantor's name on all applications, documents, papers
and instruments necessary or desirable for the Administrative Agent in the use
of the Trademarks or the Licenses, (ii) assign, pledge, convey or otherwise
transfer title in or dispose of the Trademarks or the Licenses to anyone on
commercially reasonable terms, (iii) grant or issue any exclusive or
nonexclusive license under the Trademarks or, to the extent permitted, under the
Licenses, to anyone on commercially reasonable terms, and (iv) take any other
actions with respect to the Trademarks or the Licenses as the Administrative
Agent deems in its own or the Holders of Secured Obligations' best interest.
Grantor hereby ratifies all that such attorney shall lawfully do or cause to be
done by virtue hereof. This power of attorney is coupled with an interest and
shall be irrevocable until all of the Obligations shall have been paid in full
in cash and the Credit Agreement shall have been terminated. Grantor
acknowledges and agrees that this Agreement is not intended to limit or restrict
in any way the rights and remedies of the Administrative Agent or the other
Holders of Secured Obligations under the Security Agreement, but rather is
intended to facilitate the exercise of such rights and remedies.
The Administrative Agent shall have, in addition to all other
rights and remedies given it by the terms of this Agreement, all rights and
remedies allowed by law and the rights and remedies of a secured party under the
Uniform Commercial Code as enacted in any jurisdiction in which the Trademarks
or the Licenses may be located or deemed located. Upon the occurrence and during
the continuance of a Default and the election by the Administrative Agent to
exercise any of its remedies under Section 9-504 or Section 9-505 of the Uniform
Commercial Code with respect to the Trademarks and Licenses, Grantor agrees to
assign, convey and otherwise transfer title in and to the Trademarks and the
Licenses to the Administrative Agent or any transferee of the Administrative
Agent and to execute and deliver to the Administrative Agent or any such
transferee all such agreements, documents and instruments as may be necessary,
in the Administrative Agent's sole discretion, to effect such assignment,
conveyance and transfer. All of the Administrative Agent's rights and remedies
with respect to the Trademarks and the Licenses, whether established hereby, by
the Security Agreement, by any other agreements or by law, shall be cumulative
and may be exercised separately or concurrently. Notwithstanding anything set
forth herein to the contrary, it is hereby expressly agreed that upon the
occurrence and during the continuance of a Default, the Administrative Agent may
exercise any of the rights and remedies provided in this Agreement, the Security
Agreement and any of the other Loan Documents. Grantor agrees that any
notification of intended disposition of any of the Trademarks and Licenses
required by law shall be deemed reasonably and properly given if given at least
ten (10) days before such disposition.
SECTION 16. Successors and Assigns. This Agreement shall be binding
upon Grantor and its successors and assigns, and shall inure to the benefit of
each of the Holders of Secured Obligations and its nominees, successors and
assigns. Grantor's successors and assigns shall include, without limitation, a
receiver, trustee or debtor-in-possession of or for Grantor; provided, however,
that Grantor shall not voluntarily assign or transfer its rights or obligations
hereunder without the Administrative Agent's prior written consent.
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21
SECTION 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION
735 ILCS SECTION 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT
OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS. ANY DISPUTE BETWEEN THE PLEDGOR AND THE
ADMINISTRATIVE AGENT OR ANY LENDER, OR ANY OTHER HOLDER OF SECURED OBLIGATIONS
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT, AND WHETHER ARISING
IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET
SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
SECTION 18. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(a) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (b), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (a) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(b) OTHER JURISDICTIONS. THE GRANTOR AGREES THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF SECURED OBLIGATIONS SHALL HAVE THE
RIGHT TO PROCEED AGAINST THE GRANTOR OR ITS RESPECTIVE PROPERTY IN A COURT IN
ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER SUCH
GRANTOR OR (2) REALIZE ON THE COLLATERAL GRANTED IN CONNECTION HEREWITH, OR (3)
IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH
PERSON. THE GRANTOR AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS
IN ANY PROCEEDING BROUGHT BY SUCH PERSON IN A LOCATION OUTSIDE OF ILLINOIS TO
REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF SUCH PERSON; PROVIDED THAT THE GRANTOR'S RIGHT TO ASSERT
PERMISSIVE COUNTERCLAIMS IN STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS
SHALL BE PRESERVED. THE GRANTOR WAIVES ANY
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OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS
COMMENCED A PROCEEDING DESCRIBED IN THIS SUBSECTION (b).
(c) VENUE. EACH OF THE LENDERS AND THE GRANTOR IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(d) THE GRANTOR WAIVES PERSONAL SERVICE OF ANY PROCESS UPON IT AND
IRREVOCABLY APPOINTS CT CORPORATION, WITH OFFICES AT 000 XXXXX XXXXXXX XXXXXX,
XXXXXXX, XXXXXXXX 00000, AS THE GRANTOR'S AGENT FOR THE PURPOSE OF ACCEPTING
SERVICE OF PROCESS ISSUED BY ANY COURT. NOTHING HEREIN SHALL IN ANY WAY BE
DEEMED TO LIMIT THE ABILITY OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE
ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.
(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(f) WAIVER OF BOND. THE GRANTOR WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO REALIZE ON THE COLLATERAL, ENFORCE ANY JUDGMENT OR OTHER COURT
ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE,
TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTION, THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT.
(g) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 18, WITH ITS COUNSEL.
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SECTION 19. Notices. All notices or other communications hereunder
shall be given in the manner and to the address of the Parent Borrowers, in the
case of the Grantor, and to the address of the Administrative Agent, in each
case, as set forth in the Credit Agreement.
SECTION 20. Section Titles. The section titles herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
SECTION 21. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 22. Merger. This Agreement represents the final agreement of
the Grantor and the Administrative Agent with respect to the matters contained
herein and may not be contradicted by evidence of prior or contemporaneous
agreements, or subsequent oral agreements, between the Grantor and the
Administrative Agent or any Holder of Secured Obligations.
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24
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXX CORPORATION
By:
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Representative
ATTEST:
By:
----------------------------
Title:
Accepted and agreed to as of the
day and year first above written.
ABN AMRO BANK N.V.,
as Administrative Agent
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
25
SCHEDULE A
to
Trademark Security Agreement
Dated as of December 11, 2000
See attached
26
SCHEDULE B
to
Trademark Security Agreement
Dated as of December 11, 2000
See attached
27
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing Trademark Security Agreement was acknowledged before me
this 7th day of December, 2000, by Xxxxxxx X. Xxxxxxx, an Authorized
Representative of Xxxx Corporation, a Delaware corporation, on behalf of such
corporation.
-------------------------------
Notary Public
Xxxx County, Illinois
My commission expires: 12/15/02
28
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing Trademark Security Agreement was acknowledged before me
this ____ day of December, 2000, by _________________________, a
_________________________ and ___________________________, a
_____________________________ of ABN AMRO Bank N.V., on behalf of such
institution.
-------------------------------
Notary Public
Xxxx County, Illinois
My commission expires:
29
TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT ("Agreement") is made as of
December 11, 2000, by and between ORMCO CORPORATION, a Delaware corporation
("Grantor"), and ABN AMRO BANK N.V., as contractual representative (the
"Administrative Agent") for its benefit and the benefit of the "Holders of
Secured Obligations" (as such term is defined in the "Credit Agreement" defined
below).
WITNESSETH:
WHEREAS, Sybron Dental Management, Inc., the Subsidiary Swing
Line Borrowers from time to time party thereto, Xxxx Corporation and Ormco
Corporation, as the "Borrowers", Sybron Dental Specialties, Inc., as the
"Parent", the institutions from time to time party thereto as "Lenders", the
Administrative Agent, The Chase Manhattan Bank, as "Syndication Agent and First
Union National Bank, as "Documentation Agent" are parties to that certain Credit
Agreement dated as of November 28, 2000 (as the same may hereafter be modified,
amended, restated or supplemented from time to time, the "Credit Agreement"),
pursuant to which the Lenders may, from time to time, extend credit to
Borrowers; and
WHEREAS, Grantor and the Administrative Agent are parties to
that certain Security Agreement dated as of December 11, 2000 (as the same may
hereafter be modified, amended, restated or supplemented from time to time, the
"Security Agreement"), pursuant to which Grantor has granted a security interest
in certain of its assets to the Administrative Agent for the benefit of the
Administrative Agent and the Holders of Secured Obligations; and
WHEREAS, the Lenders have required Grantor to execute and
deliver this Agreement (i) in order to secure the prompt and complete payment,
observance and performance of all of the "Secured Obligations" (as defined in
the Credit Agreement) and (ii) as a condition precedent to any extension of
credit to the Borrowers under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor agrees as follows:
SECTION 1. Defined Terms.
(a) Unless otherwise defined herein, each capitalized term used herein
that is defined in the Credit Agreement shall have the meaning specified for
such term in the Credit Agreement. Unless otherwise defined herein or in the
Credit Agreement, each capitalized term used herein that is defined in the
Security Agreement shall have the meaning specified for such term in the
Security Agreement.
30
(b) The words "hereof," "herein" and "hereunder" and words of like
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 references are to
this Agreement unless otherwise specified.
(c) All terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural, and vice versa, unless otherwise
specified.
SECTION 2. Incorporation of Premises. The premises set forth above are
incorporated into this Agreement by this reference thereto and are made a part
hereof.
SECTION 3. Incorporation of the Credit Agreement. The Credit Agreement
and the terms and provisions thereof are hereby incorporated herein in their
entirety by this reference thereto.
SECTION 4. Security Interest in Trademarks. To secure the complete and
timely payment, performance and satisfaction of all of the Secured Obligations,
Grantor hereby grants to the Administrative Agent, for the benefit of the
Holders of Secured Obligations, a security interest in, as and by way of a first
mortgage and security interest having priority over all other security interests
(other than Permitted Existing Liens), with power of sale to the extent
permitted by applicable law, all of Grantor's now owned or existing and
hereafter acquired or arising:
(a) domestic trademarks, registered trademarks, trademark applications,
service marks, registered service marks and service xxxx applications,
including, without limitation, the trademarks, registered trademarks, trademark
applications, service marks, registered service marks and service xxxx
applications listed on Schedule A attached hereto and made a part hereof, and
(i) all renewals thereof, (ii) all income, royalties, damages and payments now
and hereafter due and/or payable under and with respect thereto, including,
without limitation, payments under all licenses entered into in connection
therewith and damages and payments for past or future infringements or dilutions
thereof, (iii) the right to xxx for past, present and future infringements and
dilutions thereof, (iv) the goodwill of Grantor's business symbolized by the
foregoing and connected therewith, and (v) all of Grantor's rights corresponding
thereto throughout the world (all of the foregoing trademarks, registered
trademarks and trademark applications, and service marks, registered service
marks and service xxxx applications, together with the items described in
clauses (i)-(v) in this Section 4(a), are sometimes hereinafter individually
and/or collectively referred to as the "Trademarks"); and
(b) rights under or interest in any trademark license agreements or
service xxxx license agreements with any other party, whether Grantor is a
licensee or licensor under any such license agreement, including, without
limitation, those trademark license agreements and service xxxx license
agreements listed on Schedule B attached hereto and made a part hereof, together
with any goodwill connected with and symbolized by any such trademark license
agreements or service xxxx license agreements, and the right to prepare for sale
and sell any and all Inventory now or hereafter owned by Grantor and now or
hereafter covered by such licenses (all of the foregoing are hereinafter
referred to collectively as the "Licenses").
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SECTION 5. Restrictions on Future Agreements. Grantor will not, after
the date hereof, without the Administrative Agent's prior written consent, enter
into any agreement, including, without limitation, any license agreement, which
is inconsistent with this Agreement, and Grantor further agrees that it will not
take any action, and will use its reasonable commercial efforts not to permit
any action to be taken by others, including, without limitation, licensees, or
fail to take any action, which would in any respect affect the validity or
enforcement of the rights transferred to the Administrative Agent under this
Agreement or the rights associated with the Trademarks or Licenses.
SECTION 6. New Trademarks and Licenses. Grantor represents and warrants
that, from and after the Closing Date, (a) the Trademarks listed on Schedule A
include all of the domestic trademarks, registered trademarks, trademark
applications, service marks, registered service marks and service xxxx
applications now owned or held by Grantor, (b) the Licenses listed on Schedule B
include all of the trademark license agreements and service xxxx license
agreements under which Grantor is the licensee or licensor and (c) no liens,
claims or security interests in such Trademarks and Licenses have been granted
by Grantor to any Person other than the Administrative Agent or to holders of
Permitted Existing Liens. If, prior to the termination of this Agreement,
Grantor shall (i) obtain rights to any new domestic trademarks, registered
trademarks, trademark applications, service marks, registered service marks or
service xxxx applications, (ii) become entitled to the benefit of any domestic
trademarks, registered trademarks, trademark applications, trademark licenses,
trademark license renewals, service marks, registered service marks, service
xxxx applications, service xxxx licenses or service xxxx license renewals
whether as licensee or licensor, or (iii) enter into any new trademark license
agreement or service xxxx license agreement, the provisions of Section 4 above
shall automatically apply thereto. Grantor shall give to the Administrative
Agent written notice of events described in clauses (i), (ii) and (iii) of the
preceding sentence promptly after the occurrence thereof, but in any event not
less frequently than on a quarterly basis. Grantor hereby authorizes the
Administrative Agent to modify this Agreement unilaterally (i) by amending
Schedule A to include any future domestic trademarks, registered trademarks,
trademark applications, service marks, registered service marks and service xxxx
applications and by amending Schedule B to include any future trademark license
agreements and service xxxx license agreements, which are Trademarks or Licenses
under Section 4 above or under this Section 6, and (ii) by filing, in addition
to and not in substitution for this Agreement, a duplicate original of this
Agreement containing on Schedule A or B thereto, as the case may be, such future
trademarks, registered trademarks, trademark applications, service marks,
registered service marks and service xxxx applications, and trademark license
agreements and service xxxx license agreements.
SECTION 7. Royalties. Grantor hereby agrees that the use by the
Administrative Agent of the Trademarks and Licenses as authorized hereunder in
connection with the Administrative Agent's exercise of its rights and remedies
under Section 15 or pursuant to Section 17 of the Security Agreement shall be
coextensive with Grantor's rights thereunder and with respect thereto and
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without any liability for royalties or other related charges from the
Administrative Agent or the other Holders of Secured Obligations to Grantor.
SECTION 8. Right to Inspect; Further Assignments and Security
Interests. The Administrative Agent may at all reasonable times (and at any time
when an Unmatured Default or Default exists) have access to, examine, audit,
make copies (at Grantor's expense) and extracts from and inspect Grantor's
premises and examine Grantor's books, records and operations relating to the
Trademarks and Licenses; provided, that in conducting such inspections and
examinations, the Administrative Agent shall use reasonable efforts not to
disturb unnecessarily the conduct of Grantor's ordinary business operations.
From and during the continuance of a Default, Grantor agrees that the
Administrative Agent, or a conservator appointed by the Administrative Agent,
shall have the right to establish such reasonable additional product quality
controls as the Administrative Agent or such conservator, in its sole and
absolute judgment, may deem necessary to assure maintenance of the quality of
products sold by Grantor under the Trademarks and the Licenses or in connection
with which such Trademarks and Licenses are used. Grantor agrees (i) not to sell
or assign its respective interests in, or grant any license under, the
Trademarks or the Licenses without the prior and express written consent of the
Administrative Agent (which consent, prior to the occurrence and continuance of
a Default, shall not be unreasonably withheld), (ii) to maintain the quality of
such products as of the date hereof, and (iii) not to reduce the quality of such
products in any material respect without the Administrative Agent's prior and
express written consent.
SECTION 9. Nature and Continuation of the Administrative Agent's
Security Interest; Termination of the Administrative Agent's Security Interest.
This Agreement is made for collateral security purposes only. This Agreement
shall create a continuing security interest in the Trademarks and Licenses and
shall terminate only when the Secured Obligations have been paid in full in cash
and the Credit Agreement and the Security Agreement have been terminated. When
this Agreement has terminated, the Administrative Agent shall promptly execute
and deliver to Grantor, at Grantor's expense, all termination statements and
other instruments as may be necessary or proper to terminate the Administrative
Agent's security interest in the Trademarks and the Licenses, subject to any
disposition thereof which may have been made by the Administrative Agent
pursuant to this Agreement or the Security Agreement.
SECTION 10. Duties of Grantor. Grantor shall have the duty, to the
extent desirable in the normal conduct of Grantor's business and consistent with
the exercise of its reasonable business judgment, to: (i) prosecute diligently
any trademark application or service xxxx application that is part of the
Trademarks pending as of the date hereof or hereafter until the termination of
this Agreement, and (ii) make application for trademarks or service marks.
Grantor further agrees (i) not to abandon any Trademark or License unless the
Grantor reasonably determines that it is in its best interests to do so and such
abandonment will not materially impair Grantor's ability to maintain its
business in the ordinary course, and (ii) to use its reasonable commercial
efforts to maintain in full force and effect the Trademarks and the Licenses
that are or shall be necessary or economically desirable in the operation of
Grantor's business. Any expenses incurred in
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connection with the foregoing shall be borne by Grantor. Neither the
Administrative Agent nor any of the Holders of Secured Obligations shall have
any duty with respect to the Trademarks and Licenses. Without limiting the
generality of the foregoing, neither the Administrative Agent nor any of the
Holders of Secured Obligations shall be under any obligation to take any steps
necessary to preserve rights in the Trademarks or Licenses against any other
parties, but the Administrative Agent may do so at its option from and after the
occurrence of a Default, and all expenses incurred in connection therewith shall
be for the sole account of Grantor and shall be added to the Secured Obligations
secured hereby.
SECTION 11. The Administrative Agent's Right to Xxx. From and after the
occurrence of a Default, the Administrative Agent shall have the right, but
shall not be obligated, to bring suit in its own name to enforce the Trademarks
and the Licenses and, if the Administrative Agent shall commence any such suit,
Grantor shall, at the request of the Administrative Agent, do any and all lawful
acts and execute any and all proper documents required by the Administrative
Agent in aid of such enforcement. Grantor shall, upon demand, promptly reimburse
the Administrative Agent for all costs and expenses incurred by the
Administrative Agent in the exercise of its rights under this Section 11
(including, without limitation, reasonable fees and expenses of attorneys and
paralegals for the Administrative Agent).
SECTION 12. Waivers. The Administrative Agent's failure, at any time or
times hereafter, to require strict performance by Grantor of any provision of
this Agreement shall not waive, affect or diminish any right of the
Administrative Agent thereafter to demand strict compliance and performance
therewith nor shall any course of dealing between Grantor and the Administrative
Agent have such effect. No single or partial exercise of any right hereunder
shall preclude any other or further exercise thereof or the exercise of any
other right. None of the undertakings, agreements, warranties, covenants and
representations of Grantor contained in this Agreement shall be deemed to have
been suspended or waived by the Administrative Agent unless such suspension or
waiver is in writing signed by an officer of the Administrative Agent and
directed to Grantor specifying such suspension or waiver.
SECTION 13. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but the provisions of this Agreement are severable, and if any
clause or provision shall be held invalid and unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part hereof, in such jurisdiction, and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
SECTION 14. Modification. This Agreement cannot be altered, amended or
modified in any way, except as specifically provided in Section 6 hereof or by a
writing signed by the parties hereto.
SECTION 15. Cumulative Remedies; Power of Attorney. Grantor hereby
irrevocably designates, constitutes and appoints the Administrative Agent (and
all Persons designated by the
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Administrative Agent in its sole and absolute discretion) as Grantor's true and
lawful attorney-in-fact, and authorizes the Administrative Agent and any of the
Administrative Agent's designees, in Grantor's or the Administrative Agent's
name, to take any action and execute any instrument which the Administrative
Agent may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, from and during the continuance of a
Default and the giving by the Administrative Agent of notice to Grantor of the
Administrative Agent's intention to enforce its rights and claims against
Grantor, to (i) endorse Grantor's name on all applications, documents, papers
and instruments necessary or desirable for the Administrative Agent in the use
of the Trademarks or the Licenses, (ii) assign, pledge, convey or otherwise
transfer title in or dispose of the Trademarks or the Licenses to anyone on
commercially reasonable terms, (iii) grant or issue any exclusive or
nonexclusive license under the Trademarks or, to the extent permitted, under the
Licenses, to anyone on commercially reasonable terms, and (iv) take any other
actions with respect to the Trademarks or the Licenses as the Administrative
Agent deems in its own or the Holders of Secured Obligations' best interest.
Grantor hereby ratifies all that such attorney shall lawfully do or cause to be
done by virtue hereof. This power of attorney is coupled with an interest and
shall be irrevocable until all of the Obligations shall have been paid in full
in cash and the Credit Agreement shall have been terminated. Grantor
acknowledges and agrees that this Agreement is not intended to limit or restrict
in any way the rights and remedies of the Administrative Agent or the other
Holders of Secured Obligations under the Security Agreement, but rather is
intended to facilitate the exercise of such rights and remedies.
The Administrative Agent shall have, in addition to all other
rights and remedies given it by the terms of this Agreement, all rights and
remedies allowed by law and the rights and remedies of a secured party under the
Uniform Commercial Code as enacted in any jurisdiction in which the Trademarks
or the Licenses may be located or deemed located. Upon the occurrence and during
the continuance of a Default and the election by the Administrative Agent to
exercise any of its remedies under Section 9-504 or Section 9-505 of the Uniform
Commercial Code with respect to the Trademarks and Licenses, Grantor agrees to
assign, convey and otherwise transfer title in and to the Trademarks and the
Licenses to the Administrative Agent or any transferee of the Administrative
Agent and to execute and deliver to the Administrative Agent or any such
transferee all such agreements, documents and instruments as may be necessary,
in the Administrative Agent's sole discretion, to effect such assignment,
conveyance and transfer. All of the Administrative Agent's rights and remedies
with respect to the Trademarks and the Licenses, whether established hereby, by
the Security Agreement, by any other agreements or by law, shall be cumulative
and may be exercised separately or concurrently. Notwithstanding anything set
forth herein to the contrary, it is hereby expressly agreed that upon the
occurrence and during the continuance of a Default, the Administrative Agent may
exercise any of the rights and remedies provided in this Agreement, the Security
Agreement and any of the other Loan Documents. Grantor agrees that any
notification of intended disposition of any of the Trademarks and Licenses
required by law shall be deemed reasonably and properly given if given at least
ten (10) days before such disposition.
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35
SECTION 16. Successors and Assigns. This Agreement shall be binding
upon Grantor and its successors and assigns, and shall inure to the benefit of
each of the Holders of Secured Obligations and its nominees, successors and
assigns. Grantor's successors and assigns shall include, without limitation, a
receiver, trustee or debtor-in-possession of or for Grantor; provided, however,
that Grantor shall not voluntarily assign or transfer its rights or obligations
hereunder without the Administrative Agent's prior written consent.
SECTION 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION
735 ILCS SECTION 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT
OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS. ANY DISPUTE BETWEEN THE PLEDGOR AND THE
ADMINISTRATIVE AGENT OR ANY LENDER, OR ANY OTHER HOLDER OF SECURED OBLIGATIONS
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT, AND WHETHER ARISING
IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET
SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
SECTION 18. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(a) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (b), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (a) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(b) OTHER JURISDICTIONS. THE GRANTOR AGREES THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF SECURED OBLIGATIONS SHALL HAVE THE
RIGHT TO PROCEED AGAINST THE GRANTOR OR ITS RESPECTIVE PROPERTY IN A COURT IN
ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER SUCH
GRANTOR OR (2) REALIZE ON THE COLLATERAL GRANTED IN CONNECTION HEREWITH, OR (3)
IN
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36
ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH
PERSON. THE GRANTOR AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS
IN ANY PROCEEDING BROUGHT BY SUCH PERSON IN A LOCATION OUTSIDE OF ILLINOIS TO
REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF SUCH PERSON; PROVIDED THAT THE GRANTOR'S RIGHT TO ASSERT
PERMISSIVE COUNTERCLAIMS IN STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS
SHALL BE PRESERVED. THE GRANTOR WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (b).
(c) VENUE. EACH OF THE LENDERS AND THE GRANTOR IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(d) THE GRANTOR WAIVES PERSONAL SERVICE OF ANY PROCESS UPON IT AND
IRREVOCABLY APPOINTS CT CORPORATION, WITH OFFICES AT 000 XXXXX XXXXXXX XXXXXX,
XXXXXXX, XXXXXXXX 00000, AS THE GRANTOR'S AGENT FOR THE PURPOSE OF ACCEPTING
SERVICE OF PROCESS ISSUED BY ANY COURT. NOTHING HEREIN SHALL IN ANY WAY BE
DEEMED TO LIMIT THE ABILITY OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE
ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.
(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(f) WAIVER OF BOND. THE GRANTOR WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO REALIZE ON THE COLLATERAL, ENFORCE
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37
ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE
BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT
INJUNCTION, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
(g) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 18, WITH ITS COUNSEL.
SECTION 19. Notices. All notices or other communications hereunder
shall be given in the manner and to the address of the Parent Borrowers, in the
case of the Grantor, and to the address of the Administrative Agent, in each
case, as set forth in the Credit Agreement.
SECTION 20. Section Titles. The section titles herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
SECTION 21. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 22. Merger. This Agreement represents the final agreement of
the Grantor and the Administrative Agent with respect to the matters contained
herein and may not be contradicted by evidence of prior or contemporaneous
agreements, or subsequent oral agreements, between the Grantor and the
Administrative Agent or any Holder of Secured Obligations
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38
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
ORMCO CORPORATION
By:
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Representative
ATTEST:
By:
--------------------------
Title:
Accepted and agreed to as of the
day and year first above written.
ABN AMRO BANK N.V.,
as Administrative Agent
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
39
SCHEDULE A
to
Trademark Security Agreement
Dated as of December 11, 2000
See attached
40
SCHEDULE B
to
Trademark Security Agreement
Dated as of December 11, 2000
See attached
41
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing Trademark Security Agreement was acknowledged
before me this 7th day of December, 2000, by Xxxxxxx X. Xxxxxxx, an Authorized
Representative of Ormco Corporation, a Delaware corporation, on behalf of such
corporation.
-----------------------------
Notary Public
Xxxx County, Illinois
My commission expires: 12/15/02
42
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing Trademark Security Agreement was acknowledged
before me this 7th day of December, 2000, by Xxxxxx Xxxxxx, a Senior Vice
President and Xxxxxx Xxxxxxxx, a Senior Vice President of ABN AMRO Bank N.V., on
behalf of such institution.
-----------------------------
Notary Public
Xxxx County, Illinois
My commission expires: 12/15/02
43
TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT ("Agreement") is made as of
December 11, 2000, by and between METREX RESEARCH CORPORATION, a Wisconsin
corporation ("Grantor"), and ABN AMRO BANK N.V., as contractual representative
(the "Administrative Agent") for its benefit and the benefit of the "Holders of
Secured Obligations" (as such term is defined in the "Credit Agreement" defined
below).
WITNESSETH:
WHEREAS, Sybron Dental Management, Inc., the Subsidiary Swing
Line Borrowers from time to time party thereto, Xxxx Corporation and Ormco
Corporation, as the "Borrowers", Sybron Dental Specialties, Inc., as the
"Parent", the institutions from time to time party thereto as "Lenders", the
Administrative Agent, The Chase Manhattan Bank, as "Syndication Agent and First
Union National Bank, as "Documentation Agent" are parties to that certain Credit
Agreement dated as of November 28, 2000 (as the same may hereafter be modified,
amended, restated or supplemented from time to time, the "Credit Agreement"),
pursuant to which the Lenders may, from time to time, extend credit to
Borrowers; and
WHEREAS, Grantor and the Administrative Agent are parties to
that certain Security Agreement dated as of December 11, 2000 (as the same may
hereafter be modified, amended, restated or supplemented from time to time, the
"Security Agreement"), pursuant to which Grantor has granted a security interest
in certain of its assets to the Administrative Agent for the benefit of the
Administrative Agent and the Holders of Secured Obligations; and
WHEREAS, the Lenders have required Grantor to execute and
deliver this Agreement (i) in order to secure the prompt and complete payment,
observance and performance of all of the "Secured Obligations" (as defined in
the Credit Agreement) and (ii) as a condition precedent to any extension of
credit to the Borrowers under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor agrees as follows:
SECTION 1. Defined Terms.
(a) Unless otherwise defined herein, each capitalized term used herein
that is defined in the Credit Agreement shall have the meaning specified for
such term in the Credit Agreement. Unless otherwise defined herein or in the
Credit Agreement, each capitalized term used herein that is defined in the
Security Agreement shall have the meaning specified for such term in the
Security Agreement.
44
(b) The words "hereof," "herein" and "hereunder" and words of like
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 references are to
this Agreement unless otherwise specified.
(c) All terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural, and vice versa, unless otherwise
specified.
SECTION 2. Incorporation of Premises. The premises set forth above are
incorporated into this Agreement by this reference thereto and are made a part
hereof.
SECTION 3. Incorporation of the Credit Agreement. The Credit Agreement
and the terms and provisions thereof are hereby incorporated herein in their
entirety by this reference thereto.
SECTION 4. Security Interest in Trademarks. To secure the complete and
timely payment, performance and satisfaction of all of the Secured Obligations,
Grantor hereby grants to the Administrative Agent, for the benefit of the
Holders of Secured Obligations, a security interest in, as and by way of a first
mortgage and security interest having priority over all other security interests
(other than Permitted Existing Liens), with power of sale to the extent
permitted by applicable law, all of Grantor's now owned or existing and
hereafter acquired or arising:
(a) domestic trademarks, registered trademarks, trademark applications,
service marks, registered service marks and service xxxx applications,
including, without limitation, the trademarks, registered trademarks, trademark
applications, service marks, registered service marks and service xxxx
applications listed on Schedule A attached hereto and made a part hereof, and
(i) all renewals thereof, (ii) all income, royalties, damages and payments now
and hereafter due and/or payable under and with respect thereto, including,
without limitation, payments under all licenses entered into in connection
therewith and damages and payments for past or future infringements or dilutions
thereof, (iii) the right to xxx for past, present and future infringements and
dilutions thereof, (iv) the goodwill of Grantor's business symbolized by the
foregoing and connected therewith, and (v) all of Grantor's rights corresponding
thereto throughout the world (all of the foregoing trademarks, registered
trademarks and trademark applications, and service marks, registered service
marks and service xxxx applications, together with the items described in
clauses (i)-(v) in this Section 4(a), are sometimes hereinafter individually
and/or collectively referred to as the "Trademarks"); and
(b) rights under or interest in any trademark license agreements or
service xxxx license agreements with any other party, whether Grantor is a
licensee or licensor under any such license agreement, including, without
limitation, those trademark license agreements and service xxxx license
agreements listed on Schedule B attached hereto and made a part hereof, together
with any goodwill connected with and symbolized by any such trademark license
agreements or service xxxx license agreements, and the right to prepare for sale
and sell any and all Inventory now or hereafter owned by Grantor and now or
hereafter covered by such licenses (all of the foregoing are hereinafter
referred to collectively as the "Licenses").
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SECTION 5. Restrictions on Future Agreements. Grantor will not, after
the date hereof, without the Administrative Agent's prior written consent, enter
into any agreement, including, without limitation, any license agreement, which
is inconsistent with this Agreement, and Grantor further agrees that it will not
take any action, and will use its reasonable commercial efforts not to permit
any action to be taken by others, including, without limitation, licensees, or
fail to take any action, which would in any respect affect the validity or
enforcement of the rights transferred to the Administrative Agent under this
Agreement or the rights associated with the Trademarks or Licenses.
SECTION 6. New Trademarks and Licenses. Grantor represents and warrants
that, from and after the Closing Date, (a) the Trademarks listed on Schedule A
include all of the domestic trademarks, registered trademarks, trademark
applications, service marks, registered service marks and service xxxx
applications now owned or held by Grantor, (b) the Licenses listed on Schedule B
include all of the trademark license agreements and service xxxx license
agreements under which Grantor is the licensee or licensor and (c) no liens,
claims or security interests in such Trademarks and Licenses have been granted
by Grantor to any Person other than the Administrative Agent or to holders of
Permitted Existing Liens. If, prior to the termination of this Agreement,
Grantor shall (i) obtain rights to any new domestic trademarks, registered
trademarks, trademark applications, service marks, registered service marks or
service xxxx applications, (ii) become entitled to the benefit of any domestic
trademarks, registered trademarks, trademark applications, trademark licenses,
trademark license renewals, service marks, registered service marks, service
xxxx applications, service xxxx licenses or service xxxx license renewals
whether as licensee or licensor, or (iii) enter into any new trademark license
agreement or service xxxx license agreement, the provisions of Section 4 above
shall automatically apply thereto. Grantor shall give to the Administrative
Agent written notice of events described in clauses (i), (ii) and (iii) of the
preceding sentence promptly after the occurrence thereof, but in any event not
less frequently than on a quarterly basis. Grantor hereby authorizes the
Administrative Agent to modify this Agreement unilaterally (i) by amending
Schedule A to include any future domestic trademarks, registered trademarks,
trademark applications, service marks, registered service marks and service xxxx
applications and by amending Schedule B to include any future trademark license
agreements and service xxxx license agreements, which are Trademarks or Licenses
under Section 4 above or under this Section 6, and (ii) by filing, in addition
to and not in substitution for this Agreement, a duplicate original of this
Agreement containing on Schedule A or B thereto, as the case may be, such future
trademarks, registered trademarks, trademark applications, service marks,
registered service marks and service xxxx applications, and trademark license
agreements and service xxxx license agreements.
SECTION 7. Royalties. Grantor hereby agrees that the use by the
Administrative Agent of the Trademarks and Licenses as authorized hereunder in
connection with the Administrative Agent's exercise of its rights and remedies
under Section 15 or pursuant to Section 17 of the Security Agreement shall be
coextensive with Grantor's rights thereunder and with respect thereto and
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46
without any liability for royalties or other related charges from the
Administrative Agent or the other Holders of Secured Obligations to Grantor.
SECTION 8. Right to Inspect; Further Assignments and Security
Interests. The Administrative Agent may at all reasonable times (and at any time
when an Unmatured Default or Default exists) have access to, examine, audit,
make copies (at Grantor's expense) and extracts from and inspect Grantor's
premises and examine Grantor's books, records and operations relating to the
Trademarks and Licenses; provided, that in conducting such inspections and
examinations, the Administrative Agent shall use reasonable efforts not to
disturb unnecessarily the conduct of Grantor's ordinary business operations.
From and during the continuance of a Default, Grantor agrees that the
Administrative Agent, or a conservator appointed by the Administrative Agent,
shall have the right to establish such reasonable additional product quality
controls as the Administrative Agent or such conservator, in its sole and
absolute judgment, may deem necessary to assure maintenance of the quality of
products sold by Grantor under the Trademarks and the Licenses or in connection
with which such Trademarks and Licenses are used. Grantor agrees (i) not to sell
or assign its respective interests in, or grant any license under, the
Trademarks or the Licenses without the prior and express written consent of the
Administrative Agent (which consent, prior to the occurrence and continuance of
a Default, shall not be unreasonably withheld), (ii) to maintain the quality of
such products as of the date hereof, and (iii) not to reduce the quality of such
products in any material respect without the Administrative Agent's prior and
express written consent.
SECTION 9. Nature and Continuation of the Administrative Agent's
Security Interest; Termination of the Administrative Agent's Security Interest.
This Agreement is made for collateral security purposes only. This Agreement
shall create a continuing security interest in the Trademarks and Licenses and
shall terminate only when the Secured Obligations have been paid in full in cash
and the Credit Agreement and the Security Agreement have been terminated. When
this Agreement has terminated, the Administrative Agent shall promptly execute
and deliver to Grantor, at Grantor's expense, all termination statements and
other instruments as may be necessary or proper to terminate the Administrative
Agent's security interest in the Trademarks and the Licenses, subject to any
disposition thereof which may have been made by the Administrative Agent
pursuant to this Agreement or the Security Agreement.
SECTION 10. Duties of Grantor. Grantor shall have the duty, to the
extent desirable in the normal conduct of Grantor's business and consistent with
the exercise of its reasonable business judgment, to: (i) prosecute diligently
any trademark application or service xxxx application that is part of the
Trademarks pending as of the date hereof or hereafter until the termination of
this Agreement, and (ii) make application for trademarks or service marks.
Grantor further agrees (i) not to abandon any Trademark or License unless the
Grantor reasonably determines that it is in its best interests to do so and such
abandonment will not materially impair Grantor's ability to maintain its
business in the ordinary course, and (ii) to use its reasonable commercial
efforts to maintain in full force and effect the Trademarks and the Licenses
that are or shall be necessary or economically desirable in the operation of
Grantor's business. Any expenses incurred in
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connection with the foregoing shall be borne by Grantor. Neither the
Administrative Agent nor any of the Holders of Secured Obligations shall have
any duty with respect to the Trademarks and Licenses. Without limiting the
generality of the foregoing, neither the Administrative Agent nor any of the
Holders of Secured Obligations shall be under any obligation to take any steps
necessary to preserve rights in the Trademarks or Licenses against any other
parties, but the Administrative Agent may do so at its option from and after the
occurrence of a Default, and all expenses incurred in connection therewith shall
be for the sole account of Grantor and shall be added to the Secured Obligations
secured hereby.
SECTION 11. The Administrative Agent's Right to Xxx. From and after the
occurrence of a Default, the Administrative Agent shall have the right, but
shall not be obligated, to bring suit in its own name to enforce the Trademarks
and the Licenses and, if the Administrative Agent shall commence any such suit,
Grantor shall, at the request of the Administrative Agent, do any and all lawful
acts and execute any and all proper documents required by the Administrative
Agent in aid of such enforcement. Grantor shall, upon demand, promptly reimburse
the Administrative Agent for all costs and expenses incurred by the
Administrative Agent in the exercise of its rights under this Section 11
(including, without limitation, reasonable fees and expenses of attorneys and
paralegals for the Administrative Agent).
SECTION 12. Waivers. The Administrative Agent's failure, at any time or
times hereafter, to require strict performance by Grantor of any provision of
this Agreement shall not waive, affect or diminish any right of the
Administrative Agent thereafter to demand strict compliance and performance
therewith nor shall any course of dealing between Grantor and the Administrative
Agent have such effect. No single or partial exercise of any right hereunder
shall preclude any other or further exercise thereof or the exercise of any
other right. None of the undertakings, agreements, warranties, covenants and
representations of Grantor contained in this Agreement shall be deemed to have
been suspended or waived by the Administrative Agent unless such suspension or
waiver is in writing signed by an officer of the Administrative Agent and
directed to Grantor specifying such suspension or waiver.
SECTION 13. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but the provisions of this Agreement are severable, and if any
clause or provision shall be held invalid and unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part hereof, in such jurisdiction, and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
SECTION 14. Modification. This Agreement cannot be altered, amended or
modified in any way, except as specifically provided in Section 6 hereof or by a
writing signed by the parties hereto.
SECTION 15. Cumulative Remedies; Power of Attorney. Grantor hereby
irrevocably designates, constitutes and appoints the Administrative Agent (and
all Persons designated by the
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Administrative Agent in its sole and absolute discretion) as Grantor's true and
lawful attorney-in-fact, and authorizes the Administrative Agent and any of the
Administrative Agent's designees, in Grantor's or the Administrative Agent's
name, to take any action and execute any instrument which the Administrative
Agent may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, from and during the continuance of a
Default and the giving by the Administrative Agent of notice to Grantor of the
Administrative Agent's intention to enforce its rights and claims against
Grantor, to (i) endorse Grantor's name on all applications, documents, papers
and instruments necessary or desirable for the Administrative Agent in the use
of the Trademarks or the Licenses, (ii) assign, pledge, convey or otherwise
transfer title in or dispose of the Trademarks or the Licenses to anyone on
commercially reasonable terms, (iii) grant or issue any exclusive or
nonexclusive license under the Trademarks or, to the extent permitted, under the
Licenses, to anyone on commercially reasonable terms, and (iv) take any other
actions with respect to the Trademarks or the Licenses as the Administrative
Agent deems in its own or the Holders of Secured Obligations' best interest.
Grantor hereby ratifies all that such attorney shall lawfully do or cause to be
done by virtue hereof. This power of attorney is coupled with an interest and
shall be irrevocable until all of the Obligations shall have been paid in full
in cash and the Credit Agreement shall have been terminated. Grantor
acknowledges and agrees that this Agreement is not intended to limit or restrict
in any way the rights and remedies of the Administrative Agent or the other
Holders of Secured Obligations under the Security Agreement, but rather is
intended to facilitate the exercise of such rights and remedies.
The Administrative Agent shall have, in addition to all other
rights and remedies given it by the terms of this Agreement, all rights and
remedies allowed by law and the rights and remedies of a secured party under the
Uniform Commercial Code as enacted in any jurisdiction in which the Trademarks
or the Licenses may be located or deemed located. Upon the occurrence and during
the continuance of a Default and the election by the Administrative Agent to
exercise any of its remedies under Section 9-504 or Section 9-505 of the Uniform
Commercial Code with respect to the Trademarks and Licenses, Grantor agrees to
assign, convey and otherwise transfer title in and to the Trademarks and the
Licenses to the Administrative Agent or any transferee of the Administrative
Agent and to execute and deliver to the Administrative Agent or any such
transferee all such agreements, documents and instruments as may be necessary,
in the Administrative Agent's sole discretion, to effect such assignment,
conveyance and transfer. All of the Administrative Agent's rights and remedies
with respect to the Trademarks and the Licenses, whether established hereby, by
the Security Agreement, by any other agreements or by law, shall be cumulative
and may be exercised separately or concurrently. Notwithstanding anything set
forth herein to the contrary, it is hereby expressly agreed that upon the
occurrence and during the continuance of a Default, the Administrative Agent may
exercise any of the rights and remedies provided in this Agreement, the Security
Agreement and any of the other Loan Documents. Grantor agrees that any
notification of intended disposition of any of the Trademarks and Licenses
required by law shall be deemed reasonably and properly given if given at least
ten (10) days before such disposition.
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SECTION 16. Successors and Assigns. This Agreement shall be binding
upon Grantor and its successors and assigns, and shall inure to the benefit of
each of the Holders of Secured Obligations and its nominees, successors and
assigns. Grantor's successors and assigns shall include, without limitation, a
receiver, trustee or debtor-in-possession of or for Grantor; provided, however,
that Grantor shall not voluntarily assign or transfer its rights or obligations
hereunder without the Administrative Agent's prior written consent.
SECTION 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION
735 ILCS SECTION 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT
OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS. ANY DISPUTE BETWEEN THE PLEDGOR AND THE
ADMINISTRATIVE AGENT OR ANY LENDER, OR ANY OTHER HOLDER OF SECURED OBLIGATIONS
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT, AND WHETHER ARISING
IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET
SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
SECTION 18. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(a) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (b), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (a) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(b) OTHER JURISDICTIONS. THE GRANTOR AGREES THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF SECURED OBLIGATIONS SHALL HAVE THE
RIGHT TO PROCEED AGAINST THE GRANTOR OR ITS RESPECTIVE PROPERTY IN A COURT IN
ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER SUCH
GRANTOR OR (2) REALIZE ON THE COLLATERAL GRANTED IN CONNECTION HEREWITH, OR (3)
IN
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ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH
PERSON. THE GRANTOR AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS
IN ANY PROCEEDING BROUGHT BY SUCH PERSON IN A LOCATION OUTSIDE OF ILLINOIS TO
REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF SUCH PERSON; PROVIDED THAT THE GRANTOR'S RIGHT TO ASSERT
PERMISSIVE COUNTERCLAIMS IN STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS
SHALL BE PRESERVED. THE GRANTOR WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (b).
(c) VENUE. EACH OF THE LENDERS AND THE GRANTOR IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(d) THE GRANTOR WAIVES PERSONAL SERVICE OF ANY PROCESS UPON IT AND
IRREVOCABLY APPOINTS CT CORPORATION, WITH OFFICES AT 000 XXXXX XXXXXXX XXXXXX,
XXXXXXX, XXXXXXXX 00000, AS THE GRANTOR'S AGENT FOR THE PURPOSE OF ACCEPTING
SERVICE OF PROCESS ISSUED BY ANY COURT. NOTHING HEREIN SHALL IN ANY WAY BE
DEEMED TO LIMIT THE ABILITY OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE
ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.
(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(f) WAIVER OF BOND. THE GRANTOR WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO REALIZE ON THE COLLATERAL, ENFORCE
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ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE
BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT
INJUNCTION, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
(g) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 18, WITH ITS COUNSEL.
SECTION 19. Notices. All notices or other communications hereunder
shall be given in the manner and to the address of the Parent Borrowers, in the
case of the Grantor, and to the address of the Administrative Agent, in each
case, as set forth in the Credit Agreement.
SECTION 20. Section Titles. The section titles herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
SECTION 21. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 22. Merger. This Agreement represents the final agreement of
the Grantor and the Administrative Agent with respect to the matters contained
herein and may not be contradicted by evidence of prior or contemporaneous
agreements, or subsequent oral agreements, between the Grantor and the
Administrative Agent or any Holder of Secured Obligations
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
METREX RESEARCH CORPORATION
By:
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Representative
ATTEST:
By:
---------------------------
Title:
Accepted and agreed to as of the day and
year first above written.
ABN AMRO BANK N.V.,
as Administrative Agent
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
53
SCHEDULE A
to
Trademark Security Agreement
Dated as of December 11, 2000
See attached
54
SCHEDULE B
to
Trademark Security Agreement
Dated as of December 11, 2000
See attached
55
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing Trademark Security Agreement was acknowledged
before me this 7th day of December, 2000, by Xxxxxxx X. Xxxxxxx, an Authorized
Representative of Metrex Research Corporation, a Wisconsin corporation, on
behalf of such corporation.
-------------------------------
Notary Public
Xxxx County, Illinois
My commission expires: 12/15/02
56
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing Trademark Security Agreement was acknowledged
before me this _____ day of December, 2000, by _________________________, a
________________________ and ______________________________, a
______________________________of ABN AMRO Bank N.V., on behalf of such
institution.
--------------------------------
Notary Public
Xxxx County, Illinois
My commission expires:
----------
