Exhibit 4.3
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PATENT COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT
PATENT COLLATERAL SECURITY AND PLEDGE AGREEMENT dated as of June 30,
2004, between SWANK, INC., a Delaware corporation having its principal place of
business at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Assignor"), and XXXXX
FARGO FOOTHILL, INC., a California corporation having an office at 0000 Xxxxxxxx
Xxxxxx, Xxxxx 0000 Xxxx, Xxxxx Xxxxxx, Xxxxxxxxxx 00000 (the "Lender").
WHEREAS, the Assignor and the Lender are parties to a Loan and Security
Agreement dated as of June 30, 2004, (as amended and in effect from time to
time, the "Loan Agreement"), between the Assignor and the Lender;
WHEREAS, it is a condition precedent to the Lender's making any loans
or otherwise extending credit to the Assignor under the Loan Agreement that the
Assignor execute and deliver to the Lender a patent agreement in substantially
the form hereof;
WHEREAS, pursuant to the Loan Agreement the Assignor has granted to the
Lender a security interest in certain of the Assignor's personal property and
fixture assets, including without limitation the patents and patent applications
listed on Schedule A attached hereto, all to secure the payment and performance
of the Obligations (as defined in the Loan Agreement); and
WHEREAS, this Patent Agreement is supplemental to the provisions
contained in the Loan Agreement;
NOW, THEREFORE, in consideration of the premises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS.
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Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings provided therefor in the Loan Agreement. In
addition, the following terms shall have the meanings set forth in this ss.1 or
elsewhere in this Patent Agreement referred to below:
Patent Agreement. This Patent Collateral Assignment and Security
Agreement, as amended and in effect from time to time.
Patent Collateral. All of the Assignor's right, title and interest in
and to all of the Patents, the Patent License Rights, and all other Patent
Rights, and all additions, improvements, and accessions to, all substitutions
for and replacements of, and all products and Proceeds (including insurance
proceeds) of any and all of the foregoing, and all books and records and
technical information and data describing or used in connection with any and all
such rights, interests, assets or property.
Patent License Rights. Any and all past, present or future rights and
interests of the Assignor pursuant to any and all past, present and future
licensing agreements in favor of the Assignor, or to which the Assignor is a
party, pertaining to any Patents, or Patent Rights, owned by Assignor in the
past, present or future, including the right in the name of the Assignor or the
Lender to enforce, and xxx and recover for, any past, present or future breach
or violation of any such agreement.
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Patent Rights. Any and all past, present or future rights in, to and
associated with the Patents throughout the world, whether arising under federal
law, state law, common law, foreign law, or otherwise, including but not limited
to the following: all such rights arising out of or associated with the Patents;
the right (but not the obligation) to register claims under any federal, state
or foreign patent law or regulation; the right (but not the obligation) to xxx
or bring opposition or bring cancellation proceedings in the name of the
Assignor or the Lender for any and all past, present and future infringements of
or any other damages or injury to the Patents or the Patent Rights, and the
rights to damages or profits due or accrued arising out of or in connection with
any such past, present or future infringement, damage or injury; and the Patent
License Rights.
Patents. All patents and patent applications, whether United States or
foreign, that are owned by the Assignor now or in the future, including but not
limited to:
(a) the patents and patent applications listed on Schedule A
hereto (as the same may be amended pursuant hereto from time to time);
(b) all letters patent of the United States or any other
country, and all applications for letters patent of the United States
or any other country;
(c) all re-issues, continuations, divisions,
continuations-in-part, renewals or extensions thereof;
(d) the inventions disclosed or claimed therein, including the
right to make, use, practice and/or sell (or license or otherwise
transfer or dispose of) the inventions disclosed or claimed therein;
and
(e) the right (but not the obligation) to make and prosecute
applications for such Patents.
Proceeds. Any consideration received from the sale, exchange, license,
lease or other disposition or transfer of any right, interest, asset or property
which constitutes all or any part of the Patent Collateral, any value received
as a consequence of the ownership, possession, use or practice of any Patent
Collateral, and any payment received from any insurer or other person or entity
as a result of the destruction or the loss, theft or other involuntary
conversion of whatever nature of any right, interest, asset or property which
constitutes all or any part of the Patent Collateral.
PTO. The United States Patent and Trademark Office.
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2. GRANT OF SECURITY INTEREST.
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To secure the payment and performance in full of all of the
Obligations, the Assignor hereby grants, assigns, transfers and conveys to the
Lender, BY WAY OF COLLATERAL SECURITY, all of the Patent Collateral. THE LENDER
ASSUMES NO LIABILITY ARISING IN ANY WAY BY REASON OF ITS HOLDING SUCH COLLATERAL
SECURITY.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS. SEE TM
-----------------------------------------
The Assignor represents, warrants and covenants that: (a) Schedule A
(as the same may be supplemented by notice from the Assignor to the Lender)
attached hereto sets forth a true and complete list of all the patents, rights
to patents and patent applications now owned by the Assignor; (b) the issued
Patents are subsisting and, to the best of the Assignor's knowledge, have not
been adjudged invalid or unenforceable, in whole or in part, and, to the best of
the Assignor's knowledge, there is no litigation or proceeding pending
concerning the validity or enforceability of the issued Patents, except, in each
case, where such an event could not reasonably be expected to have a Material
Adverse Change; (c) to the best of the Assignor's knowledge, each of the issued
Patents is valid and enforceable, except where the invalidity or
unenforceability of such Patent could not reasonably be expected to have a
Material Adverse Change; (d) to the best of the Assignor's knowledge, there is
no infringement by others of the issued Patents or Patent Rights, other than an
infringement by others occurring after the Closing Date and which the Assignor
has provided the Lender with prompt notice thereof; (e) to the best of the
Assignor's knowledge, no claim has been made that the use of any of the Patents
does or may violate the rights of any third person, and there is no infringement
by the Assignor of the patent rights of others; (f) except as permitted by
Section 5 hereof, the Assignor is the sole and exclusive owner of the entire and
unencumbered right, title and interest in and to each of the Patents, free and
clear of any liens, charges, encumbrances and adverse claims, including without
limitation pledges, assignments, licenses, shop rights and covenants by the
Assignor not to xxx third persons, other than the security agreement and
mortgage created by the Loan Agreement and this Patent Agreement and Permitted
Liens; (g) the Assignor has the unqualified right to enter into this Patent
Agreement and perform its terms; (h) this Patent Agreement, together with the
Loan Agreement, will create in favor of the Lender a valid and perfected first
priority security interest in the Patent Collateral upon making the filings
referred to in clause (i) of this ss.3; and (i) except for the filing of
financing statements with Secretary of State for the State of Delaware under the
Uniform Commercial Code and the filing of this Patent Agreement with the PTO, no
authorization, approval or other action by, and no notice to or filing with, any
governmental or regulatory authority, agency or office is required either (1)
for the grant by the Assignor or the effectiveness of the security interest and
assignment granted hereby or for the execution, delivery and performance of this
Patent Agreement by the Assignor, or (2) for the perfection of or the exercise
by the Lender of any of its rights and remedies hereunder.
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4. NO TRANSFER OR INCONSISTENT AGREEMENTS.
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Without the Lender's prior written consent and except for licenses of
the Patent Collateral in the ordinary course of the Assignor's business
consistent with its past practices, the Assignor will not (a) mortgage, pledge,
assign, encumber, grant a security interest in, transfer, license or alienate
any of the Patent Collateral, or (b) enter into any agreement (for example, a
license agreement) that is inconsistent with the Assignor's obligations under
this Patent Agreement or the Loan Agreement.
5. AFTER-ACQUIRED PATENTS, ETC.
----------------------------
5.1. After-acquired Patents. If, before the Obligations shall have been
finally paid and satisfied in full, the Assignor shall acquire ownership of
other or new patents, patent applications or patentable inventions, or become
entitled to the benefit of any patent application or patent or any reissue,
division, continuation, renewal, extension, or continuation-in-part of any of
the Patent Collateral or any improvement on any of the Patent Collateral, the
provisions of this Patent Agreement shall automatically apply thereto and the
Assignor shall promptly give to the Lender notice thereof in writing and execute
and deliver to the Lender such documents or instruments as the Lender may
reasonably request further to transfer title thereto to the Lender.
5.2. Amendment to Schedule. The Assignor authorizes the Lender to
modify this Patent Agreement, without the necessity of the Assignor's further
approval or signature, by amending Schedule A hereto to include any future or
other Patents or Patent Rights under ss.2 or ss.5 hereof.
6. PATENT PROSECUTION.
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6.1. Assignor Responsible. The Assignor shall assume full and complete
responsibility for the prosecution, grant, enforcement or any other necessary or
desirable actions in connection with the Patent Collateral, and shall hold the
Lender harmless from any and all costs, damages, liabilities and expenses which
may be incurred by the Lender in connection with the Lender's title to any of
the Patent Collateral or any other action or failure to act in connection with
this Patent Agreement or the transactions contemplated hereby. In respect of
such responsibility, the Assignor shall retain patent counsel acceptable to the
Lender.
6.2. Assignor's Duties, etc. The Assignor shall have the duty, through
patent counsel acceptable to the Lender, to prosecute diligently any patent
applications of the Patents pending as of the date of this Patent Agreement or
thereafter, to make application for unpatented but reasonably patentable
inventions and to preserve and maintain all rights in the Patents, including
without limitation the payment when due of all maintenance fees and other fees,
taxes and other expenses which shall be incurred or which shall accrue with
respect to any of the Patents. Any expenses incurred in connection with such
applications and actions shall be borne by the Assignor. The Assignor shall not
abandon any filed patent application, or any pending patent application or
patent, without the consent of the Lender, which consent shall not be
unreasonably withheld, other than any Patent Collateral to the extent that it is
no longer used or useful in the conduct of the Assignor's business. The Lender
hereby appoints the Assignor as its agent for all matters referred to in the
foregoing provisions of this ss.6 and agrees to execute any documents necessary
to confirm such appointment. Upon the occurrence and during the continuance of
an Event of Default, the Lender may terminate such agency by providing written
notice of termination to the Assignor.
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6.3. Assignor's Enforcement Rights. The Assignor shall have the right,
with the consent of the Lender, which shall not be unreasonably withheld, to
bring suit or other action in the Assignor's own name to enforce the Patents and
the Patent Rights, other than any Patent Collateral to the extent that it is no
longer used or useful in the conduct of the Assignor's business. The Lender
shall be required to join in such suit or action as may be necessary to assure
the Assignor's ability to bring and maintain any such suit or action in any
proper forum so long as the Lender is completely satisfied that such joinder
will not subject the Lender to any risk of liability. The Assignor shall
promptly, upon demand, reimburse and indemnify the Lender for all damages, costs
and expenses, including legal fees, incurred by the Lender pursuant to this
ss.6.
6.4. Protection of Patents, etc. In general, the Assignor shall take
any and all such actions (including but not limited to institution and
maintenance of suits, proceedings or actions) as may be necessary or appropriate
to properly maintain, protect, preserve and enforce the Patent Collateral, other
than any Patent Collateral to the extent that it is no longer used or useful in
the conduct of the Assignor's business. The Assignor shall not take or fail to
take any action, nor permit any action to be taken or not taken by others under
its control, which would affect the validity, grant or enforcement of any of the
Patent Collateral, other than any Patent Collateral to the extent that it is no
longer used or useful in the conduct of the Assignor's business.
6.5. Notification by Assignor. Promptly upon obtaining knowledge
thereof, the Assignor will notify the Lender in writing of the institution of,
or any final adverse determination in, any proceeding in the PTO or any similar
office or agency of the United States or any foreign country, or any court,
regarding the validity of any of the Patents or the Assignor's rights, title or
interests in and to any of the Patent Collateral, and of any event which does or
reasonably could materially adversely affect the value of any of the Patent
Collateral, the ability of the Assignor or the Lender to dispose of any of the
Patent Collateral or the rights and remedies of the Lender in relation thereto
(including but not limited to the levy of any legal process against any of the
Patent Collateral).
7. LICENSE BACK TO ASSIGNOR.
------------------------
Unless and until there shall have occurred and be continuing an Event
of Default and the Lender has notified the Assignor that the license granted
hereunder is terminated, the Lender hereby grants to the Assignor the sole and
exclusive, nontransferable, royalty-free, worldwide right and license under the
Patents to make, have made for it, use, sell and otherwise practice the
inventions disclosed and claimed in the Patents for the Assignor's own benefit
and account and for none other; provided, however, that the foregoing right and
license shall be no greater in scope than, and limited by, the rights assigned
to the Lender by the Assignor hereby. The Assignor agrees not to sell, assign,
transfer, encumber or sublicense its interest in the license granted to the
Assignor in this ss.7, without the prior written consent of the Lender. Any such
sublicenses granted on or after the date hereof shall be terminable by the
Lender upon termination of the Assignor's license hereunder.
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8. REMEDIES.
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If any Event of Default shall have occurred and be continuing, then
upon notice by the Lender to the Assignor: (a) the Assignor's license with
respect to the Patents as set forth in ss.7 shall terminate; (b) the Assignor
shall immediately cease and desist from the practice, manufacture, use and sale
of the inventions claimed, disclosed or covered by the Patents; and (c) the
Lender shall have, in addition to all other rights and remedies given it by this
Patent Agreement, the Loan Agreement, and the other Loan Documents, those
allowed by law and the rights and remedies of a secured party under the Uniform
Commercial Code as enacted in the Commonwealth of Massachusetts and, without
limiting the generality of the foregoing, the Lender may immediately, without
demand of performance and without other notice (except as set forth next below)
or demand whatsoever to the Assignor, all of which are hereby expressly waived,
and without advertisement, sell or license at public or private sale or
otherwise realize upon the whole or from time to time any part of the Patent
Collateral, or any interest which the Assignor may have therein, and after
deducting from the proceeds of sale or other disposition of the Patent
Collateral all expenses (including all reasonable expenses for broker's fees and
legal services), shall apply the residue of such proceeds toward the payment of
the Obligations as set forth in the Loan Agreement, with any remainder being
returned to the Assignor or such other Person who may be entitled to same under
law. Notice of any sale, license or other disposition of any of the Patent
Collateral shall be given to the Assignor at least five (5) days before the time
that any intended public sale or other disposition of such Patent Collateral is
to be made or after which any private sale or other disposition of such Patent
Collateral may be made, which the Assignor hereby agrees shall be reasonable
notice of such public or private sale or other disposition. At any such sale or
other disposition, the Lender may, to the extent permitted under applicable law,
purchase or license the whole or any part of the Patent Collateral or interests
therein sold, licensed or otherwise disposed of.
9. COLLATERAL PROTECTION.
---------------------
If the Assignor shall fail to do any act that it has covenanted to do
hereunder, or if any representation or warranty of the Assignor shall be
breached, the Lender, in its own name or that of the Assignor (in the sole
discretion of the Lender), may (but shall not be obligated to) do such act or
remedy such breach (or cause such act to be done or such breach to be remedied),
and the Assignor agrees promptly to reimburse the Lender for any cost or expense
incurred by the Lender in so doing.
10. POWER OF ATTORNEY.
-----------------
If any Event of Default shall have occurred and be continuing, the
Assignor does hereby make, constitute and appoint the Lender (and any officer or
agent of the Lender as the Lender may select in its exclusive discretion) as the
Assignor's true and lawful attorney-in-fact, with the power to endorse the
Assignor's name on all applications, documents, papers and instruments necessary
for the Lender to use any of the Patent Collateral, to practice, make, use or
sell the inventions disclosed or claimed in any of the Patent Collateral, to
grant or issue any exclusive or nonexclusive license of any of the Patent
Collateral to any third person, or necessary for the Lender to assign, pledge,
convey or otherwise transfer title in or dispose of the Patent Collateral or any
part thereof or interest therein to any third person, and, in general, to
execute and deliver any instruments or documents and do all other acts which the
Assignor is obligated to execute and do hereunder. The Assignor hereby ratifies
all that such attorney shall lawfully do or cause to be done by virtue hereof,
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and releases the Lender from any claims, liabilities, causes of action or
demands arising out of or in connection with any action taken or omitted to be
taken by the Lender under this power of attorney (except for the Lender's gross
negligence or willful misconduct). This power of attorney shall be irrevocable
for the duration of this Patent Agreement.
11. FURTHER ASSURANCES.
------------------
The Assignor shall, at any time and from time to time, and at its
expense, make, execute, acknowledge and deliver, and file and record as
necessary or appropriate with governmental or regulatory authorities, agencies
or offices, such agreements, assignments, documents and instruments, and do such
other and further acts and things (including, without limitation, obtaining
consents of third parties), as the Lender may request or as may be necessary or
appropriate in order to implement and effect fully the intentions, purposes and
provisions of this Patent Agreement, or to assure and confirm to the Lender the
grant, perfection and priority of the Lender's security interest in any of the
Patent Collateral.
12. TERMINATION.
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At such time as all of the Obligations have been finally paid and
satisfied in full, this Patent Agreement shall terminate and the Lender shall,
upon the written request and at the expense of the Assignor, execute and deliver
to the Assignor all deeds, assignments and other instruments as may be necessary
or proper to reassign and reconvey to and re-vest in the Assignor the entire
right, title and interest to the Patent Collateral previously granted, assigned,
transferred and conveyed to the Lender by the Assignor pursuant to this Patent
Agreement, as fully as if this Patent Agreement had not been made, subject to
any disposition of all or any part thereof which may have been made by the
Lender pursuant hereto or the Loan Agreement.
13. COURSE OF DEALING.
-----------------
No course of dealing among the Assignor and the Lender, nor any failure
to exercise, nor any delay in exercising, on the part of the Lender, any right,
power or privilege hereunder or under the Loan Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or thereunder preclude any other or further exercise thereof
or the exercise of any other right, power or privilege.
14. EXPENSES.
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Any and all fees, costs and expenses, of whatever kind or nature,
including the reasonable attorneys' fees and legal expenses incurred by the
Lender in connection with the preparation of this Patent Agreement and all other
documents relating hereto, the consummation of the transactions contemplated
hereby or the enforcement hereof, the filing or recording of any documents
(including all taxes in connection therewith) in public offices, the payment or
discharge of any taxes, counsel fees, maintenance fees, encumbrances or
otherwise protecting, maintaining or preserving any of the Patent Collateral, or
in defending or prosecuting any actions or proceedings arising out of or related
to any of the Patent Collateral, shall be borne and paid by the Assignor.
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15. OVERDUE AMOUNTS.
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Until paid, all amounts due and payable by the Assignor hereunder shall
be a debt secured by the Patent Collateral and other Collateral and shall bear,
whether before or after judgment, interest at the then applicable rate of
interest set forth in the Loan Agreement.
16. NO ASSUMPTION OF LIABILITY; INDEMNIFICATION.
-------------------------------------------
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LENDER
ASSUMES NO LIABILITIES OF THE ASSIGNOR WITH RESPECT TO ANY CLAIM OR CLAIMS
REGARDING THE ASSIGNOR'S OWNERSHIP OR PURPORTED OWNERSHIP OF, OR RIGHTS OR
PURPORTED RIGHTS ARISING FROM, ANY OF THE PATENT COLLATERAL OR ANY PRACTICE,
USE, LICENSE OR SUBLICENSE THEREOF, OR ANY PRACTICE, MANUFACTURE, USE OR SALE OF
ANY OF THE INVENTIONS DISCLOSED OR CLAIMED THEREIN, WHETHER ARISING OUT OF ANY
PAST, CURRENT OR FUTURE EVENT, CIRCUMSTANCE, ACT OR OMISSION OR OTHERWISE. ALL
OF SUCH LIABILITIES SHALL BE EXCLUSIVELY BORNE BY THE ASSIGNOR, AND THE ASSIGNOR
SHALL INDEMNIFY THE LENDER FOR ANY AND ALL COSTS, EXPENSES, DAMAGES AND CLAIMS,
INCLUDING LEGAL FEES, INCURRED BY THE LENDER WITH RESPECT TO SUCH LIABILITIES.
17. RIGHTS AND REMEDIES CUMULATIVE.
------------------------------
All of the Lender's rights and remedies with respect to the Patent
Collateral, whether established hereby or by the Loan Agreement or by any other
agreements or by law, shall be cumulative and may be exercised singularly or
concurrently. This Patent Agreement is supplemental to the Loan Agreement, and
nothing contained herein shall in any way derogate from any of the rights or
remedies of the Lender contained therein. Nothing contained in this Patent
Agreement shall be deemed to extend the time of attachment or perfection of or
otherwise impair the security interest in any of the Patent Collateral granted
to the Lender under the Loan Agreement.
18. NOTICES.
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All notices and other communications made or required to be given
pursuant to this Patent Agreement shall be in writing and shall be delivered in
hand, mailed by United States registered or certified first-class mail, postage
prepaid, or sent by telegraph, telecopy or telex and confirmed by delivery via
courier or postal service, addressed as follows:
(a) if to the Assignor, at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: President, or at such other address for notice as the
Assignor shall last have furnished in writing to the person giving the
notice, with copies to Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X.
Xxxxxxxx; and
(b) if to the Lender, at Xxxxx Fargo Foothill, Inc., 0000
Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxx, Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Business Finance Manager, or at such other address for
notice as the Lender shall last have furnished in writing to the person
giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand to a responsible
officer of the party to which it is directed, at the time of the receipt thereof
by such officer, (ii) if sent by registered or certified first-class mail,
postage prepaid, two (2) Business Days after the posting thereof, and (iii) if
sent by telegraph, telecopy, or telex, at the time of the dispatch thereof, if
in normal business hours in the country of receipt, or otherwise at the opening
of business on the following Business Day.
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19. AMENDMENT AND WAIVER.
--------------------
This Patent Agreement is subject to modification only by a writing
signed by the Lender and the Assignor, except as provided in ss.5.2. The Lender
shall not be deemed to have waived any right hereunder unless such waiver shall
be in writing and signed by the Lender. A waiver on any one occasion shall not
be construed as a bar to or waiver of any right on any future occasion.
20. GOVERNING LAW; CONSENT TO JURISDICTION.
--------------------------------------
THIS PATENT AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT
AND SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS. The Assignor agrees that any suit for the
enforcement of this Patent Agreement may be brought in the courts of the
Commonwealth of Massachusetts or any federal court sitting therein and consents
to the non-exclusive jurisdiction of such court and to service of process in any
such suit being made upon the Assignor by mail at the address specified in
ss.18. The Assignor hereby waives any objection that it may now or hereafter
have to the venue of any such suit or any such court or that such suit is
brought in an inconvenient court.
21. WAIVER OF JURY TRIAL.
--------------------
THE ASSIGNOR WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY
ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS PATENT
AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY SUCH
RIGHTS OR OBLIGATIONS. Except as prohibited by law, the Assignor waives any
right which it may have to claim or recover in any litigation referred to in the
preceding sentence any special, exemplary, punitive or consequential damages or
any damages other than, or in addition to, actual damages. The Assignor (a)
certifies that neither the Lender nor any representative, agent or attorney of
the Lender has represented, expressly or otherwise, that the Lender would not,
in the event of litigation, seek to enforce the foregoing waivers, and (b)
acknowledges that, in entering into the Loan Agreement and the other Loan
Documents to which the Lender is a party, the Lender is relying upon, among
other things, the waivers and certifications contained in this ss.21.
22. MISCELLANEOUS.
-------------
The headings of each section of this Patent Agreement are for
convenience only and shall not define or limit the provisions thereof. This
Patent Agreement and all rights and obligations hereunder shall be binding upon
the Assignor and its successors and assigns, and shall inure to the benefit of
the Lender and its successors and assigns. In the event of any irreconcilable
conflict between the provisions of this Patent Agreement and the Loan Agreement,
the provisions of the Loan Agreement shall control. If any term of this Patent
Agreement shall be held to be invalid, illegal or unenforceable, the validity of
all other terms hereof shall in no way be affected thereby, and this Patent
Agreement shall be construed and be enforceable as if such invalid, illegal or
unenforceable term had not been included herein. The Assignor acknowledges
receipt of a copy of this Patent Agreement.
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IN WITNESS WHEREOF, this Patent Agreement has been executed as of the
day and year first above written.
SWANK, INC.
By:__________________________________________
Name:
Title:
XXXXX FARGO FOOTHILL, INC.
By:__________________________________________
Name:
Title:
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CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF ______________________)
) ss.
COUNTY OF _____________________________________)
On this ___ day of __________________, 20__, before me, the undersigned notary
public, personally appeared ______________________, proved to me through
satisfactory evidence of identification, which were
_____________________________, to be the person whose name is signed on the
preceding or attached document, and acknowledged to me that (he)(she) signed it
voluntarily for its stated purpose (as ______________ for __________________, a
_______________________).
------------------------------
(official signature and seal of notary)
My commission expires:
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SCHEDULE A
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ISSUED AND PENDING PATENTS
--------------------------
Patents Issued by U.S. Patent
-----------------------------
and Trademark Office
--------------------
Patent No. Issue Date Inventor(s) Title
---------- ---------- ----------- -----
[List chronologically in ascending numerical order]
Patents Pending with U.S. Patent
--------------------------------
and Trademark Office
--------------------
Serial No. Filing Date Inventor(s) Title
---------- ----------- ----------- -----
[List chronologically in ascending numerical order]
[Add foreign patents on separate schedule if appropriate]
