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EXHIBIT 10.22
FORM OF
INTELLECTUAL PROPERTY SECURITY AGREEMENT
1. Recitals.
[______________________], a [___________] corporation (together with
its successors and assigns, "Pledgor"), the lending institutions listed on Annex
I to the Credit Agreement, as hereinafter defined (collectively, "Lenders" and,
individually, "Lender"), and KEYBANK NATIONAL ASSOCIATION, as administrative
agent for the Lenders ("Administrative Agent"), are parties to the Credit
Agreement.
Pledgor understands that the Lenders are willing to continue to grant
the financial accommodations to Pledgor pursuant to the Credit Agreement only
upon certain terms and conditions, one of which is that Pledgor grant to
Administrative Agent, for the benefit of the Lenders, a security interest in and
collateral assignment of the Collateral, as hereinafter defined, and this
Intellectual Property Security Agreement (as the same may from time to time be
amended, restated or otherwise modified, this "Agreement") is being executed and
delivered in consideration of each financial accommodation granted to Pledgor by
the Lenders and for other valuable considerations.
2. Definitions. Except as specifically defined herein,
capitalized terms used herein that are defined in the Credit Agreement shall
have their respective meanings ascribed to them in the Credit Agreement. As used
in this Agreement, the following terms shall have the following meanings:
2.1. "Assignment" shall mean an Assignment in the form of Exhibit A
attached hereto.
2.2. "Collateral" shall mean, collectively, all of Pledgor's
existing and future (a) patents, patent registrations, patent applications,
trademarks, trademark registrations, trademark applications and copyright
registrations, whether federal or state, including, but not limited to, those
listed on Schedule 1 hereto (as such Schedule 1 may from time to time be
amended, supplemented or otherwise modified); (b) common law trademark rights,
copyrights, improvements and inventions; (c) renewals, proceeds on infringement
suits, and rights to xxx for past, present and future infringements relating to
any of the foregoing; (d) goodwill associated with any of the foregoing; and (e)
proceeds of any of the foregoing.
2.3. "Credit Agreement" shall mean the Credit Agreement executed by
and among Pledgor, the Lenders and Administrative Agent, dated as of the 1st day
of May, 1998, as amended and as the same may from time to time be further
amended, restated or otherwise modified.
2.4. "Event of Default" shall mean an event or condition that
constitutes an event of default pursuant to Section 8 hereof.
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2.5. "Hedge Agreement" shall mean any currency swap or hedge
agreement, interest rate swap, cap, collar or floor agreement, or other interest
rate management device entered into by Pledgor or any Eligible Subsidiary with
Administrative Agent or any of the Lenders, or any of their respective
affiliates, in connection with the Obligations.
2.6. "Letter of Credit" shall mean any Letter of Credit, as defined
in the Credit Agreement, issued pursuant to the Credit Agreement.
2.7. "Loan" shall mean any Loan, as defined in the Credit
Agreement, granted pursuant to the Credit Agreement.
2.8. "Obligations" shall mean, collectively, (a) all Loans and
Letters of Credit; (b) all other indebtedness now owing or hereafter incurred by
Pledgor or any Eligible Subsidiary to Administrative Agent or any Lender
pursuant to the Credit Agreement and any Note executed in connection therewith;
(c) each renewal, extension, consolidation or refinancing of any of the
foregoing, in whole or in part; (d) all interest from time to time accruing on
any of the foregoing, and all fees or other amounts payable by Pledgor pursuant
to the Credit Agreement; (e) all obligations and liabilities of Pledgor now
existing or hereafter incurred to Administrative Agent or any Lender (or any
affiliate of such Lender) under, arising out of, or in connection with any Hedge
Agreement; (f) every other liability, now or hereafter owing to Administrative
Agent or any Lender by Pledgor or any Eligible Subsidiary pursuant to the Credit
Agreement or any other Credit Document; and (g) all Related Expenses.
2.9. "Person" shall mean any individual, sole proprietorship,
partnership, joint venture, unincorporated organization, corporation, limited
liability company, institution, trust, estate, government or other agency or
political subdivision thereof or any other entity.
2.10. "Related Expenses" shall mean any and all reasonable costs,
liabilities and expenses (including, without limitation, losses, damages,
penalties, claims, actions, reasonable attorneys' fees, legal expenses,
judgments, suits, and disbursements) (a) incurred by Administrative Agent or
imposed upon or asserted against Administrative Agent or any Lender, in any
attempt by Administrative Agent and the Lenders to (i) obtain, preserve, perfect
or enforce any security interest evidenced by this Agreement, the Credit
Agreement, any Credit Document, or any other document, instrument or agreement
executed in connection with any of the foregoing; (ii) obtain payment,
performance or observance of any and all of the Obligations; or (iii) maintain,
insure, audit, collect, preserve, repossess or dispose of any of the Collateral
or any other collateral securing the Obligations, including, without limitation,
costs and expenses for appraisals, assessments and audits of Pledgor or any such
collateral; or (b) incidental or related to (a) above, including, without
limitation, interest thereupon from the date incurred, imposed or asserted until
paid.
2.11. "USPTO" shall mean the United States Patent and Trademark
Office in Washington D.C.
3. Grant of Assignment and Security Interest. In consideration of
and as security for the full and complete payment of all of the Obligations,
Pledgor hereby agrees that the Lenders shall at all times have, and hereby
grants to Administrative Agent, for the benefit of the Lenders,
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a security interest in and collateral assignment of all of the Collateral,
including (without limitation) all of Pledgor's future Collateral, irrespective
of any lack of knowledge by Administrative Agent or any Lender of the creation
or acquisition thereof.
4. Representations and Warranties. Pledgor represents and
warrants to Administrative Agent and each Lender that:
(a) Pledgor owns all of the Collateral and, whether the same are
registered or unregistered, no such Collateral has been adjudged invalid or
unenforceable;
(b) The Collateral is valid and enforceable;
(c) Pledgor has no knowledge of any claim that the use of any of
the Collateral does or may violate the rights of any Person;
(d) Except for liens expressly permitted pursuant to Section 9.3
of the Credit Agreement, Pledgor is the sole and exclusive owner of the entire
and unencumbered right, title and interest in and to the Collateral, free and
clear of any liens, charges and encumbrances, including, without limitation,
pledges, assignments, licenses, registered user agreements and covenants by
Pledgor not to xxx third Persons;
(e) Pledgor has full power, authority and legal right to pledge
the Collateral and enter into this Agreement and perform its terms; and
(f) Pledgor has used, and shall continue to use, for the duration
of this Agreement, proper statutory notice in connection with its use of the
Collateral, except where the failure to do so will not have a Material Adverse
Effect.
5. Further Assignment Prohibited. Pledgor shall not enter into
any agreement that is inconsistent with Pledgor's obligations under this
Agreement and shall not otherwise sell or assign its interest in, or grant any
license or sublicense with respect to, any of the Collateral, without
Administrative Agent's prior written consent. Absent such prior written consent,
any attempted sale or license is null and void.
6. Right to Inspect. Pledgor hereby grants to Administrative
Agent, for the benefit of the Lenders, and its employees and Administrative
Agents the right, during regular business hours, to visit any location of
Pledgor or, if applicable, any other location, and to inspect the products and
quality control records relating thereto at Pledgor's expense.
7. Standard Patent and Trademark Use. Pledgor shall not use the
Collateral in any manner that would jeopardize the validity or legal status
thereof. Pledgor shall comply with all patent marking requirements as specified
in 35 U.S.C. Section 287. Pledgor shall further conform its usage of any
trademarks to standard trademark usage, including, but not limited to, using the
trademark symbols (R), (TM), and (SM) where appropriate.
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8. Event of Default.
(a) Any of the following shall constitute an Event of Default
under this Agreement: (i) an Event of Default, as defined in the Credit
Agreement, shall occur under the Credit Agreement; (ii) any representation,
warranty or statement made by Pledgor in or pursuant to this Agreement or in any
other writing received by Administrative Agent or the Lenders in connection with
the Obligations shall be false or erroneous in any material respect; or (iii)
Pledgor shall fail or omit to perform or observe any agreement made by Pledgor
in or pursuant to this Agreement or in any other writing received by
Administrative Agent or the Lenders pursuant hereto.
(b) Pledgor expressly acknowledges that Administrative Agent, on
behalf of the Lenders, shall record this Agreement with the USPTO.
Contemporaneously herewith, Pledgor shall execute and deliver to Administrative
Agent the Assignment, which Assignment shall have no force and effect and shall
be held by Administrative Agent in escrow until the occurrence of an Event of
Default; provided, that, anything herein to the contrary notwithstanding, the
security interest and collateral assignment granted herein shall be effective as
of the date of this Agreement. After the occurrence of an Event of Default, the
Assignment shall immediately take effect upon certification of such fact by an
authorized officer of Administrative Agent in the form reflected on the face of
the Assignment and Administrative Agent may, in its sole discretion, record the
Assignment with USPTO.
(c) If an Event of Default shall occur, Pledgor irrevocably
authorizes and empowers Administrative Agent, on behalf of the Lenders, to
terminate Pledgor's use of the Collateral and to exercise such rights and
remedies as allowed by law. Without limiting the generality of the foregoing,
after any delivery or taking of possession of the Collateral, or any thereof,
pursuant to this Agreement, then, with or without resort to Pledgor or any other
Person or property, all of which Pledgor hereby waives, and upon such terms and
in such manner as Administrative Agent may deem advisable, Administrative Agent,
on behalf of the Lenders, may in its discretion, sell, assign, transfer and
deliver any of the Collateral, together with the associated goodwill, or any
interest that Pledgor may have therein, at any time, or from time to time. No
prior notice need be given to Pledgor or to any other Person in the case of any
sale of Collateral that Administrative Agent determines to be declining speedily
in value or that is customarily sold in any recognized market, but in any other
case Administrative Agent shall give Pledgor no fewer than ten (10) days prior
notice of either the time and place of any public sale of the Collateral or of
the time after which any private sale or other intended disposition thereof is
to be made. Pledgor waives advertisement of any such sale and (except to the
extent specifically required by the preceding sentence) waives notice of any
kind in respect of any such sale. At any such public sale, Administrative Agent
or any Lender may purchase the Collateral, or any part thereof, free from any
right of redemption, all of which rights Pledgor hereby waives and releases.
After deducting all Related Expenses, and after paying all claims, if any,
secured by liens having precedence over this Agreement, Administrative Agent may
apply the net proceeds of each such sale to or toward the payment of the
Obligations, whether or not then due, in such order and by such division as
Administrative Agent in its sole discretion may deem advisable. Any excess, to
the extent permitted by law, shall be paid to Pledgor, and the obligors on the
Obligations shall remain liable for any deficiency. In addition, Administrative
Agent shall at all times have the right to obtain new appraisals of Pledgor or
the Collateral, the cost of which shall be paid by Pledgor.
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9. Termination. At such time as the Obligations shall have been
irrevocably paid in full, the Commitment, as defined in the Credit Agreement,
terminated, and the Credit Agreement terminated and not replaced by any other
credit facility with Administrative Agent and the Lenders, Pledgor shall have
the right to terminate this Agreement. Upon written request of Pledgor,
Administrative Agent shall execute and deliver to Pledgor all deeds,
assignments, and other instruments as may be necessary or proper to release
Administrative Agent's security interest in and assignment of the Collateral and
to re-vest in Pledgor full title to the Collateral, subject to any disposition
thereof that may have been made by Administrative Agent, for the benefit of the
Lenders, pursuant hereto.
10. Maintaining Collateral; Attorneys' Fees, Costs and Expenses.
Pledgor shall have the obligation and duty to perform all acts necessary to
maintain or preserve the Collateral, provided that Pledgor shall not be
obligated to maintain any Collateral in the event Pledgor determines, in the
reasonable business judgment of Pledgor, that the maintenance of such Collateral
is no longer necessary in Pledgor's business. Any and all reasonable fees, costs
and expenses, of whatever kind or nature, including, without limitation, the
attorneys' fees and legal expenses incurred by Administrative Agent and the
Lenders in connection with the amendment and enforcement of this Agreement, all
renewals, required affidavits and all other documents relating hereto and the
consummation of this transaction, 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 the Collateral, or in defending
or prosecuting any actions or proceedings arising out of or related to the
Collateral, shall be borne and paid by Pledgor, upon demand by Administrative
Agent and, until so paid, shall be added to the principal amount of the
Obligations.
11. Pledgor's Obligation to Prosecute. Except as otherwise agreed
to by Administrative Agent in writing, Pledgor shall have the duty to prosecute
diligently any patent application or trademark application pending as of the
date of this Agreement or thereafter until the Obligations shall have been paid
in full, to file and prosecute opposition and cancellation proceedings and to do
any and all acts that are necessary or desirable to preserve and maintain all
rights in the Collateral, including, but not limited to, payment of any
maintenance fees. Any expenses incurred in connection with the Collateral shall
be borne by Pledgor. Pledgor shall not abandon any Collateral without the prior
written consent of Administrative Agent, unless such abandonment will not have a
material adverse effect on Pledgor or such abandonment is in connection with the
abandonment of a product or product line.
12. Administrative Agent's Right to Enforce. Pledgor shall have
the right to bring any opposition proceeding, cancellation proceeding or lawsuit
in its own name to enforce or protect the Collateral. Administrative Agent, on
behalf of the Lenders, shall have the right, but shall have no obligation, to
join in any such action. Pledgor shall promptly, upon demand, reimburse and
indemnify Administrative Agent and the Lenders for all damages, reasonable costs
and expenses, including attorneys' fees, incurred by Administrative Agent and
the Lenders in connection with the provisions of this Section 12, in the event
Administrative Agent, on behalf of the Lenders, elects to join in any such
action commenced by Pledgor.
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13. Power of Attorney. Pledgor hereby authorizes and empowers
Administrative Agent, on behalf of the Lenders, to make, constitute and appoint
any officer or agent of Administrative Agent as Administrative Agent may select,
in its exclusive discretion, as Pledgor's true and lawful attorney-in-fact, with
the power to endorse, after the occurrence of an Event of Default, Pledgor's
name on all applications, documents, papers and instruments necessary for
Administrative Agent, on behalf of the Lenders, to use the Collateral, or to
grant or issue any exclusive or nonexclusive license under the Collateral to any
third party, or necessary for Administrative Agent, on behalf of the Lenders, to
assign, pledge, convey or otherwise transfer title in or dispose of the
Collateral, together with associated goodwill to a third party or parties.
Pledgor hereby ratifies all that such attorney shall lawfully do or cause to be
done by virtue hereof. This power of attorney shall be irrevocable for the life
of this Agreement.
14. Administrative Agent's Right to Perform Obligations. If
Pledgor fails to comply with any of its obligations under this Agreement,
Administrative Agent, on behalf of the Lenders, may, but is not obligated to, do
so in Pledgor's name or in the name of Administrative Agent, on behalf of the
Lenders, but at Pledgor's expense, and Pledgor hereby agrees to reimburse
Administrative Agent, upon request, in full for all expenses, including
attorneys' fees, incurred by Administrative Agent and the Lenders in protecting,
defending and maintaining the Collateral.
15. Additional Documents. Pledgor shall, upon written request of
Administrative Agent, enter into such additional documents or instruments as may
be required by Administrative Agent in order to effectuate, evidence or perfect
the interest of Administrative Agent and the Lenders in the Collateral, as
evidenced by this Agreement.
16. New Collateral. If, before the Obligations shall have been
satisfied in full and the terminated, Pledgor shall obtain rights to any new
Collateral, the provisions of Section 1 hereby shall automatically apply thereto
as if the same were identified on Schedule 1 as of the date hereof and Pledgor
shall give Administrative Agent prompt written notice thereof.
17. Modification for New Collateral. Pledgor hereby authorizes
Administrative Agent to modify this Agreement by amending Schedule 1 to include
any future Collateral as contemplated by Sections 1 and 16 hereof and, at
Administrative Agent's request, Pledgor shall execute any documents or
instruments required by Administrative Agent in order to modify this Agreement
as provided in this Section 17, provided that any such modification to Schedule
1 shall be effective without the signature of Pledgor.
18. No Waiver. No course of dealing between Pledgor and
Administrative Agent or any Lender, nor any failure to exercise, nor any delay
in exercising, on the part of Administrative Agent or any such Lender, any
right, power or privilege hereunder or under any of the Credit Documents 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.
19. Remedies Cumulative. All of the rights and remedies of
Administrative Agent and the Lenders with respect to the Collateral, whether
established hereby or by the Credit
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Documents, or by any other agreements or by law shall be cumulative and may be
executed singularly or concurrently.
20. Severability. 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 thereof, 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.
21. Modifications. This Agreement may be amended or modified only
by a writing signed by Pledgor and Administrative Agent. In the event that any
provision of this Agreement is deemed to be inconsistent with any provision of
any other document, other than the Credit Agreement, the provisions of this
Agreement shall control.
22. Assignment and Successors. This Agreement shall not be
assigned by Pledgor without the prior written consent of Administrative Agent.
This Agreement shall bind the successors and permitted assigns of Pledgor and
shall benefit the respective successors and assigns of Administrative Agent and
the Lenders. Any attempted assignment or transfer without the prior written
consent of Administrative Agent shall be null and void.
23. Notice. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile transmission or cable communication)
and mailed, telegraphed, telexed, transmitted, cabled or delivered, if to
Pledgor, at the address specified on the signature page of this Agreement, if to
any Lender, at its address specified for such Lender on Annex I to the Credit
Agreement, and if to Administrative Agent, at the Notice Office, as defined in
the Credit Agreement; or at such other address as shall be designated by any
party in a written notice to the other parties hereto. All such notices and
communications shall be mailed, telegraphed, telexed, telecopied, or cabled or
sent by overnight courier, and shall be effective when received.
24. Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the laws
of the State of Ohio, without regard to principles of conflicts of law. Pledgor
hereby irrevocably submits to the non-exclusive jurisdiction of any Ohio state
or federal court sitting in Cleveland, Ohio, over any action or proceeding
arising out of or relating to this Agreement, the Credit Agreement, any Credit
Document, or any other document, instrument or agreement executed in connection
with any of the foregoing, and Pledgor hereby irrevocably agrees that all claims
in respect of such action or proceeding may be heard and determined in such Ohio
state or federal court. Pledgor hereby irrevocably waives, to the fullest extent
permitted by law, any objection it may now or hereafter have to the laying of
venue in any action or proceeding in any such court as well as any right it may
now or hereafter have to remove such action or proceeding, once commenced, to
another court on the grounds of FORUM NON CONVENIENS or otherwise. Pledgor
agrees that a final, non-appealable judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
[Remainder of page intentionally left blank.]
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25. JURY TRIAL WAIVER. PLEDGOR, ADMINISTRATIVE AGENT AND THE
LENDERS, TO THE EXTENT PERMITTED BY LAW, EACH WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, AMONG ADMINISTRATIVE AGENT, THE LENDERS, PLEDGOR, ANY ELIGIBLE
SUBSIDIARY, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION THEREWITH OR THE TRANSACTIONS RELATED THERETO.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the ____ day of August, 2001.
Address: ____________________ [______________________________]
____________________
____________________ By:______________________________
Name:____________________________
Title:___________________________
This Agreement is hereby acknowledged and agreed to by:
KEYBANK NATIONAL ASSOCIATION, as
Administrative Agent
By_________________________________
Name:______________________________
Title:_______________________________
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ACKNOWLEDGMENTS
THE STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, the undersigned authority, on this day personally appeared
_________________, known to me to be the person and officer whose name is
subscribed to the foregoing instrument and acknowledged to me that the same was
the act of the said [__________________], a [____________] corporation, and that
she/he executed the same as the act of such corporation for the purposes and
consideration therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of _______, 2001.
_______________________________
NOTARY PUBLIC
THE STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, the undersigned authority, on this day personally appeared
_________________, known to me to be the person and officer whose name is
subscribed to the foregoing instrument and acknowledged to me that the same was
the act of the said KEYBANK NATIONAL ASSOCIATION, as Administrative Agent, and
that she/he executed the same as the act of such Lender for the purposes and
consideration therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of _______, 2001.
_______________________________
NOTARY PUBLIC
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SCHEDULE 1
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EXHIBIT A
FORM OF ASSIGNMENT
THIS DOCUMENT SHALL BE HELD BY ADMINISTRATIVE AGENT, FOR THE BENEFIT OF THE
LENDERS, IN ESCROW PURSUANT TO AND IN ACCORDANCE WITH THE PROVISIONS OF THE
INTELLECTUAL PROPERTY SECURITY AGREEMENT (THE "AGREEMENT"), DATED AS OF AUGUST
__, 2001, EXECUTED BY [______________________], A [___________] CORPORATION
("PLEDGOR"), IN FAVOR OF KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
FOR THE LENDERS, AS DEFINED IN THE AGREEMENT (TOGETHER WITH ITS SUCCESSORS AND
ASSIGNS, "ADMINISTRATIVE AGENT"). BY SIGNING IN THE SPACE PROVIDED BELOW, THE
UNDERSIGNED OFFICER OF ADMINISTRATIVE AGENT CERTIFIES THAT AN EVENT OF DEFAULT,
AS DEFINED IN THE AGREEMENT, HAS OCCURRED AND THAT ADMINISTRATIVE AGENT HAS
ELECTED TO TAKE POSSESSION OF THE COLLATERAL, AS DEFINED BELOW, AND TO RECORD
THIS DOCUMENT WITH THE UNITED STATES PATENT AND TRADEMARK OFFICE. UPON RECORDING
OF THIS DOCUMENT WITH THE UNITED STATES PATENT AND TRADEMARK OFFICE, THIS LEGEND
SHALL CEASE TO HAVE ANY FORCE OR EFFECT.
KEYBANK NATIONAL ASSOCIATION,
as Administrative Agent
By:_________________________________
Title:______________________________
Date:_______________________________
ASSIGNMENT
WHEREAS, [_________________], a [___________]e corporation ("Pledgor"),
is the owner of the Collateral, as hereinafter defined;
WHEREAS, Pledgor has executed an Intellectual Property Security
Agreement, dated as of August ___, 2001 (as the same may from time to time be
amended, restated or otherwise modified, the "Agreement"), in favor of KEYBANK
NATIONAL ASSOCIATION, as administrative agent for the Lenders, as defined in the
Agreement (together with its successors and assigns, "Administrative Agent"),
pursuant to which Pledgor has granted to Administrative Agent, for the benefit
of the Lenders, a security interest in and collateral assignment of the
Collateral as security for the Obligations, as defined in the Agreement;
WHEREAS, the Agreement provides that the security interest in and
collateral assignment of the Collateral is effective as of the date of the
Agreement;
WHEREAS, the Agreement provides that this Assignment shall become
effective upon the occurrence of an Event of Default, as defined in the
Agreement, and Administrative Agent's election to take actual title to the
Collateral;
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, Pledgor, its successors and assigns, subject to the limitations stated
in the paragraph immediately following, does hereby transfer, assign and set
over unto Administrative Agent, for the benefit of the Lenders, and their
respective successors, transferees and assigns, all of its existing and future
(a) patents, patent registrations, patent applications, trademarks, trademark
registrations, trademark applications and copyright registrations, whether
federal or state; (b) common law trademark rights, copyrights, improvements and
inventions; (c) renewals, proceeds on infringement suits, and rights to xxx for
past, present and future infringements relating to any of the foregoing; (d)
goodwill associated with any of the foregoing; and (e) proceeds of any of the
foregoing (collectively, the "Collateral"), including, but not limited to, the
Collateral listed on Schedule 1 hereto that is registered in the United States
Patent and Trademark Office in Washington D.C. or that is the subject of pending
applications in the United States Patent and Trademark Office.
This Assignment shall be effective only upon certification of an
authorized officer of Administrative Agent, as provided above, that (a) an Event
of Default, as defined in the Agreement, has occurred, and (b) Administrative
Agent, on behalf of the Lenders, has elected to take actual title to the
Collateral.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed by its duly authorized officer as of August __, 2001.
ATTEST: [__________________________]
________________________________ By:________________________________
Print Name:_____________________ Name:______________________________
Title:_____________________________
________________________________
Print Name:_____________________
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ACKNOWLEDGMENT
THE STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public, the undersigned, on this day personally
appeared _______________, known to me to be the person and officer whose name is
subscribed to the foregoing instrument and acknowledged to me that the same was
the act of [_________________________], a [____________] corporation, and that
she/he executed the same as the act of such corporation for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of _______, 2001.
_______________________________
Notary Public
