Exhibit 10.9
PATENT COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT
PATENT COLLATERAL SECURITY AND PLEDGE AGREEMENT dated as of August 16,
2002, between REPUBLIC ENGINEERED PRODUCTS LLC, a Delaware limited liability
company having a principal place of business at 0000 Xxxxxxx Xxxxxxx, Xxxxx,
Xxxx 00000 (the "Assignor") and FLEET CAPITAL CORPORATION, a Rhode Island
corporation having an office at Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
as administrative agent (hereinafter, in such capacity, the "Administrative
Agent") for itself and the other lending institutions (hereinafter,
collectively, the "Lenders") which are or may become parties to a Revolving
Credit Agreement of even date herewith (as amended and in effect from time to
time, the "Credit Agreement") among the Assignor, and the Subsidiaries of the
Assignor party thereto, the Lenders, the Administrative Agent and the other
parties thereto.
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed, upon
the terms and subject to the conditions contained therein, to make loans and
otherwise extend credit to the Assignor;
WHEREAS, it is a condition precedent to the Lenders' making any loans or
otherwise extending credit to the Assignor under the Credit Agreement that the
Assignor execute and deliver to the Administrative Agent, for the benefit of the
Lenders and the Administrative Agent, a patent agreement in substantially the
form hereof;
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.
Capitalized terms used herein and not otherwise defined herein shall have
the respective meanings provided therefor in the Credit Agreement and the
Domestic Security 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:
Cast-Roll Patents. All Patents relating to equipment of the Assignor or
any of its Subsidiaries that is used exclusively or primarily at the Canton
Cast-Roll Facility.
Patent Agreement. This Patent Collateral Assignment and Domestic 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 Pledged 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.
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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 Pledged Patents, or Patent Rights, owned or used by
third parties in the past, present or future, including the right in the name of
the Assignor or the Administrative Agent to enforce, and xxx and recover for,
any past, present or future breach or violation of any such agreement.
Patent Rights. Any and all past, present or future rights in, to and
associated with the Pledged 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
Pledged 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 Administrative Agent for any and all past, present
and future infringements of or any other damages or injury to the Pledged
Patents or the Patent Rights, and the rights to damages or profits due or
accrued arising out of or in connection with any such past, present or future
infringement, damage or injury; and the Patent License Rights.
Patents. All patents and patent applications, whether United States or
foreign, that are owned by the Assignor or in which the Assignor has any right,
title or interest, now or in the future, including, without limitation;
(a) 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;
(b) all re-issues, continuations, divisions,
continuations-in-part, renewals or extensions thereof;
(c) 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
(d) the right (but not the obligation) to make and prosecute
applications for such Patents.
Pledged Patents. All Patents, including, without limitation, the
Cast-Roll Patents and the patents and patent applications listed on Schedule A
hereto (as the same may be amended pursuant hereto from time to time).
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
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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.
2. GRANT OF SECURITY INTEREST.
To secure the payment and performance in full of all of the Obligations,
the Assignor hereby unconditionally grants to the Administrative Agent, for the
benefit of the Lenders and the Administrative Agent, a continuing security
interest in and first priority lien on the Patent Collateral; and in furtherance
thereof, the Assignor hereby grants, assigns, transfers and conveys to the
Administrative Agent, for the benefit of the Lenders and the Administrative
Agent, BY WAY OF COLLATERAL SECURITY, all of the Patent Collateral. NEITHER THE
ADMINISTRATIVE AGENT NOR ANY LENDER ASSUMES ANY LIABILITY ARISING IN ANY WAY BY
REASON OF ITS HOLDING SUCH COLLATERAL SECURITY.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS.
The Assignor represents, warrants and covenants that: except, to the
extent the failure of the following to be true would not have a Material Adverse
Effect, (i) to the Assignor's knowledge, Schedule A attached hereto sets forth a
true and complete list of all of the patents, rights to patents and patent
applications now owned, licensed, controlled or used by the Assignor; (ii) to
the Assignor's knowledge, the issued Patents are subsisting and have not been
adjudged invalid or unenforceable, in whole or in part, and to the Assignor's
knowledge, there is no litigation or proceeding pending concerning the validity
or enforceability of the issued Patents; (iii) to the Assignor's knowledge,
there is no infringement by others of the issued Patents or Patent Rights which
could reasonably be expected to have a Material Adverse Effect; (iv) to the
Assignor's knowledge, no claim is pending that the use by the Assignor, or to
the knowledge of the Assignor, any licensee of the Assignor, of any of the
Patents does or may violate the rights of any third person, and to the
Assignor's knowledge there is no infringement by the Assignor of the patent
rights of others; (v) to the Assignor's knowledge, the Assignor is the sole and
exclusive owner of the entire and unencumbered right, title and interest in and
to each of the Patents (other than ownership and other rights reserved by third
party owners with respect to Patents which the Assignor is licensed to practice
or use), free and clear of any liens, charges, encumbrances and adverse claims,
including without limitation pledges, assignments, licenses, shop rights and
covenants by the Assignor not to xxx third persons, other than the security
agreement and mortgage created by the Domestic Security Agreement and this
Patent Agreement and other security interests permitted by the Credit Agreement;
(vi) the Assignor has the right to enter into this Patent Agreement and to the
Assignor's knowledge, has the right to perform its terms and has entered and
will enter into written agreements with all relevant present and future
employees, agents, consultants, licensors and licensees which will enable it to
comply with the covenants herein contained; (vii) this Patent Agreement,
together with the Domestic Security Agreement, will create in favor of the
Administrative Agent, for the benefit of the Lenders and the
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Administrative Agent, a valid and perfected first priority security interest in
the Patent Collateral (other than in respect of any Pledged Patent registered in
a jurisdiction other than the United States) upon making the filings referred to
in clause (viii) of this (S)3; and (viii) except for the filing of financing
statements in 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 in respect of the Pledged Patents
registered in the United States 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 Administrative Agent of any of
its rights and remedies hereunder.
4. NO TRANSFER OR INCONSISTENT AGREEMENTS.
Without the Administrative Agent's prior written consent, or except as
permitted by (S)9.2 or (S)9.6 of the Credit Agreement, the Assignor will not (i)
mortgage, pledge, assign, encumber, grant a security interest in, transfer,
license or alienate any of the Patent Collateral, except for licenses or
agreements in the ordinary course and consistent with past practices, or (ii)
enter into any agreement (for example, a license agreement) that is inconsistent
with the Assignor's obligations under this Patent Agreement or the Domestic
Security 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 obtain any right, title
or interest in or to any other or new patents, patent applications or patentable
inventions or become entitled to the benefit of any patent application or patent
or any reissue, division, continuation, renewal, extension, or
continuation-in-part of any of the Patent Collateral or any improvement on any
of the Patent Collateral, the provisions of this Patent Agreement shall
automatically apply thereto and the Assignor shall promptly give to the
Administrative Agent on a quarterly basis a written notice of any new or
additional patents (federal or foreign) and parent applications (federal or
foreign) of the Assignor and execute and deliver to the Administrative Agent
such documents or instruments as the Administrative Agent may reasonably request
further to transfer title thereto to the Administrative Agent, for the benefit
of the Lenders and the Administrative Agent, to validate the Administrative
Agent's rights hereunder.
5.2. Amendment to Schedule. The Assignor authorizes the Administrative
Agent upon receipt of notice under (S)5.1 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 Pledged Patents or
Patent Rights under (S)2 or (S)5 hereof.
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6. PATENT PROSECUTION.
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
Administrative Agent and the Lenders harmless from any and all reasonable costs,
damages, liabilities and expenses which may be incurred by the Administrative
Agent or any Lender in connection with any third party claim against the
Administrative Agent's title to any of the Patent Collateral. In respect of such
responsibility, the Assignor shall use its reasonable business judgment and
shall retain qualified patent counsel.
6.2. Assignor's Duties, etc. The Assignor shall have the duty, consistent
with its reasonable business judgment; through qualified patent counsel, to
prosecute diligently any patent applications of the material Patents pending as
of the date of this Patent Agreement or thereafter that constitute material
Pledged Patents, to make application for unpatented but reasonably patentable
inventions and to preserve and maintain all rights in the material Pledged
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 material Pledged Patents. Any expenses
incurred in connection with such applications and actions shall be borne by the
Assignor. Except in the exercise of its reasonable business judgment, the
Assignor shall not abandon any filed patent application, or any pending patent
application or patent, without the consent of the Administrative Agent, which
consent shall not be unreasonably withheld. The Administrative Agent hereby
appoints the Assignor as its agent for all matters referred to in the foregoing
provisions of this (S)6 and agrees to execute any documents necessary to confirm
such appointment. Upon the occurrence and during the continuance of an Event of
Default, the Administrative Agent may terminate such agency by providing written
notice of termination to the Assignor.
6.3. Assignor's Enforcement Rights. The Assignor shall have the right and
the duty, consistent with its reasonable business judgment, to bring suit or
other action in the Assignor's own name to enforce the material Pledged Patents
and the material Patent Rights. The Administrative Agent shall be required to
join in such suit or action as may be necessary to assure the Assignor's ability
to bring and maintain any such suit or action in any proper forum so long as the
Administrative Agent is completely satisfied that such joinder will not subject
the Administrative Agent or any Lender to any risk of liability. The Assignor
shall be excused from its obligations and duties under this (S)6.3 if the
Administrative Agent refuses to join the suit or action. The Assignor shall
promptly, upon demand, reimburse and indemnify the Administrative Agent and the
Lenders for all out-of-pocket damages, costs and expenses, including reasonable
legal fees, incurred by the Administrative Agent and any Lender pursuant to this
(S)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) consistent with its reasonable business
judgment as may be necessary or appropriate to properly maintain, protect,
preserve, care for and enforce the material Patent Collateral. The Assignor in
its reasonable business judgment shall not
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knowingly take or fail to take any action, nor knowingly permit any action to be
taken or not taken by others under its control, which would in the aggregate
have a Material Adverse Effect on the value of the Patent Collateral.
6.5. Notification by Assignor. Promptly upon obtaining knowledge thereof,
the Assignor will notify the Administrative Agent in writing of the institution
of, or any final adverse determination in, any proceeding in the PTO or any
similar office or agency of the United States or any foreign country, or any
court, regarding the validity of any of the material Pledged Patents or the
Assignor's rights, title or interests in and to any of the material Patent
Collateral, and of any event which does or reasonably could have a Material
Adverse Effect on the value of the Patent Collateral, the ability of the
Assignor or the Administrative Agent to dispose of any of the Patent Collateral
or the rights and remedies of the Administrative Agent and the Lenders 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 Administrative Agent has notified the Assignor that the license
granted hereunder is terminated, the Administrative Agent hereby grants to the
Assignor the sole and exclusive, nontransferable, royalty-free, worldwide right
and license under the Patent Collateral to make, have made for it, use, sell and
otherwise practice the inventions disclosed and claimed in the Patent Collateral
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 Administrative Agent, for the benefit
of the Lenders and the Administrative Agent, by the Assignor hereby. Except as
permitted under the Credit Agreement, the Assignor agrees not to sell, assign,
transfer, encumber or sublicense its interest in the license granted to the
Assignor in this (S)7, without the prior written consent of the Administrative
Agent. Except as permitted under the Credit Agreement, any such sublicenses
granted on or after the date hereof shall be terminable by the Administrative
Agent upon termination of the Assignor's license hereunder.
8. REMEDIES.
Subject to the provisions of the Credit Agreement, if any Event of
Default shall have occurred and be continuing, then at the discretion of the
Administrative Agent, or upon instructions by the Majority Lenders to the
Administrative Agent, and upon notice by the Administrative Agent to the
Assignor: (i) the Assignor's license with respect to the Patents as set forth in
(S)7 shall terminate; (ii) 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 (iii) the Administrative Agent shall have, in
addition to all other rights and remedies given it by this Patent Agreement, the
Credit Agreement, the Domestic Security Agreement, and the other Loan Documents,
those allowed by law and the rights and remedies of a secured party under the
Uniform Commercial Code as enacted in State of New York and, without limiting
the generality
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of the foregoing, the Administrative Agent may immediately, without demand of
performance and without other notice (except as set forth next below) or demand
whatsoever to the Assignor, all of which are hereby expressly waived, and
without advertisement, sell or license at public or private sale or otherwise
realize upon the whole or from time to time any part of the Patent Collateral,
or any interest which the Assignor may have therein, and after deducting from
the proceeds of sale or other disposition of the Patent Collateral all expenses
(including all reasonable expenses for broker's fees and legal services), shall
apply the residue of such proceeds toward the payment of the Obligations as set
forth in the Domestic Security Agreement. Notice of any sale, license or other
disposition of any of the Patent Collateral shall be given to the Assignor at
least ten (10) Business 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
Administrative Agent may, to the extent permitted under applicable law, purchase
or license the whole or any part of the Patent Collateral or interests therein
sold, licensed or otherwise disposed of.
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 Administrative Agent, in its own name or that of the Assignor (in
the sole discretion of the Administrative Agent), may (but shall not be
obligated to) do such act or remedy such breach (or cause such act to be done or
such breach to be remedied), and the Assignor agrees promptly to reimburse the
Administrative Agent for any reasonable cost or expense incurred by the
Administrative Agent 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 Administrative Agent (and
any officer or agent of the Administrative Agent as the Administrative Agent may
select in its exclusive discretion) as the Assignor's true and lawful
attorney-in-fact, with the power to endorse the Assignor's name on all
applications, documents, papers and instruments necessary for the Administrative
Agent to use any of the Patent Collateral, to practice, make, use or sell the
inventions disclosed or claimed in any of the Patent Collateral, to grant or
issue any exclusive or nonexclusive license of any of the Patent Collateral to
any third person, or necessary for the Administrative Agent to assign, pledge,
convey or otherwise transfer title in or dispose of the Patent Collateral or any
part thereof or interest therein to any third person, and, in general, to
execute and deliver any instruments or documents and do all other acts which the
Assignor is obligated to execute and do hereunder. The Assignor hereby ratifies
all that such attorney shall lawfully do or cause to be done by virtue hereof,
and releases the Administrative Agent from any claims, liabilities, causes of
action or demands arising out of or in connection with any action taken or
omitted to be taken by the Administrative Agent under this power of attorney
(except for the Administrative Agent's or any such Person's gross negligence or
willful
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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 Administrative Agent may reasonably request
as necessary or proper to implement and effect fully the intentions, purposes
and provisions of this Patent Agreement, or to reasonably assure and confirm to
the Administrative Agent the grant, perfection and priority of the
Administrative Agent's security interest in any of the Patent Collateral.
12. TERMINATION.
At such time as all of the Obligations have been finally paid and
satisfied in full, this Patent Agreement shall terminate and the Administrative
Agent shall, upon the written request and at the expense of the Assignor,
execute and deliver to the Assignor all deeds, assignments and other instruments
as may be necessary or proper to reassign and reconvey to and re-vest in the
Assignor the entire right, title and interest to the Patent Collateral
previously granted, assigned, transferred and conveyed to the Administrative
Agent and the Lenders 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 Administrative Agent
and the Lenders pursuant hereto or the Domestic Security Agreement.
13. COURSE OF DEALING.
No course of dealing among the Assignor, the Lenders and the
Administrative Agent, nor any failure to exercise, nor any delay in exercising,
on the part of the Administrative Agent or any Lender, any right, power or
privilege hereunder or under the Domestic Security Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or thereunder preclude any other or further exercise thereof
or the exercise of any other right, power or privilege.
14. EXPENSES.
Any and all reasonable fees, costs and expenses, of whatever kind or
nature, including the reasonable attorneys' fees and legal expenses incurred by
the Administrative Agent in connection with 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
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any actions or proceedings arising out of or related to any of the Patent
Collateral, shall be borne and paid by the Assignor.
15. OVERDUE AMOUNTS.
Until paid, all amounts due and payable by the Assignor hereunder shall
be a debt secured by the Patent Collateral and other Collateral and shall bear,
whether before or after judgment, interest at the rate of interest for overdue
principal set forth in the Credit Agreement.
16. NO ASSUMPTION OF LIABILITY; INDEMNIFICATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NEITHER THE
ADMINISTRATIVE AGENT NOR ANY LENDER ASSUMES ANY LIABILITIES OF THE ASSIGNOR WITH
RESPECT TO ANY CLAIM OR CLAIMS REGARDING THE ASSIGNOR'S OWNERSHIP OR PURPORTED
OWNERSHIP OF, OR RIGHTS OR PURPORTED RIGHTS ARISING FROM, ANY OF THE PATENT
COLLATERAL OR ANY PRACTICE, USE, LICENSE OR SUBLICENSE THEREOF BY THE ASSIGNOR,
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
ADMINISTRATIVE AGENT AND THE LENDERS FOR ANY AND ALL COSTS, EXPENSES, DAMAGES
AND CLAIMS, INCLUDING REASONABLE LEGAL FEES, INCURRED BY THE ADMINISTRATIVE
AGENT OR ANY LENDER WITH RESPECT TO SUCH LIABILITIES.
17. RIGHTS AND REMEDIES CUMULATIVE.
All of the Administrative Agent's and the Lenders' rights and remedies
with respect to the Patent Collateral, whether established hereby or by the
Domestic Security Agreement or by any other agreements or by law, shall be
cumulative and may be exercised singularly or concurrently. This Patent
Agreement is supplemental to the Domestic Security Agreement, and nothing
contained herein shall in any way derogate from any of the rights or remedies of
the Administrative Agent and the Lenders 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 Administrative Agent for the benefit of the Lenders
and the Administrative Agent and the Administrative Agent under the Domestic
Security Agreement.
18. NOTICES.
All notices and other communications made or required to be given
pursuant to this Patent Agreement shall be in writing and shall be delivered in
hand, mailed by United States registered or certified first class mail, postage
prepaid, sent by overnight
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courier or postal service or by fascimile transmission confirmation, as the case
may be, at the address for such Person specified in (S)20 of the Credit
Agreement, or such other address for notice as the Administrative Agent or the
Assignor, as the case may be, shall have furnished in writing to the Person
giving the notice.
Any such notice or communication shall be deemed to have been duly given
or made and to have become effective (i) if delivered by hand, overnight courier
or fascimile to a responsible officer of the party to which it is directed, at
the time of the receipt thereof by such officer or the sending of such fascimile
with transmission confirmed and (ii) if sent by registered or certified
first-class mail, postage prepaid, on the third Business Day following the
mailing thereof.
19. AMENDMENT AND WAIVER.
This Patent Agreement is subject to modification only by a writing signed
by the Administrative Agent (with the consent of the Majority Lenders) and the
Assignor, except as provided in (S)5.2. The Administrative Agent shall not be
deemed to have waived any right hereunder unless such waiver shall be in writing
and signed by the Administrative Agent and the Majority Lenders. 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 SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF STATE OF NEW YORK. The Assignor agrees that any suit for the
enforcement of this Patent Agreement may be brought in the courts of the State
of New York 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 by reference
in (S)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.
EACH OF THE PARTIES HERETO 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 (i)
certifies that neither the Administrative Agent or any Lender nor any
representative, agent or attorney of the Administrative Agent or any Lender has
represented, expressly or otherwise, that the Administrative Agent or any Lender
would not, in the event of litigation, seek to enforce the foregoing waivers,
and (ii) acknowledges that, in entering into the Credit Agreement
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and the other Loan Documents to which the Administrative Agent or any Lender is
a party, the Administrative Agent and the Lenders are relying upon, among other
things, the waivers and certifications contained in this (S)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 respective successors and assigns, and shall inure to the benefit of the
Administrative Agent, the Lenders and their respective successors and assigns.
In the event of any irreconcilable conflict between the provisions of this
Patent Agreement and the Credit Agreement, or between this Patent Agreement and
the Domestic Security Agreement, the provisions of the Credit Agreement or the
Domestic Security Agreement, as the case may be, shall control. If any term of
this Patent Agreement shall be held to be invalid, illegal or unenforceable, the
validity of all other terms hereof shall in no way be affected thereby, and this
Patent Agreement shall be construed and be enforceable as if such invalid,
illegal or unenforceable term had not been included herein. The Assignor
acknowledges receipt of a copy of this Patent Agreement.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, this Patent Agreement has been executed as of the day
and year first above written.
REPUBLIC ENGINEERED PRODUCTS LLC
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
FLEET CAPITAL CORPORATION,
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF NEW YORK )
) ss.
COUNTY OF KINGS (certificate filed in New York) )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 16th day of August, 2002, personally appeared Xxxxxxx Xxxxxx
to me known personally, and who, being by me duly sworn, deposes and says that
he is the President of Republic Engineered Products LLC, and that said
instrument was signed and sealed on behalf of said limited liability company by
authority of its Board of Managers, and said person acknowledged said instrument
to be the free act and deed of said limited liability company.
/s/ Xxxxxxx X. Xxxxxxxx
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Notary Public
My commission expires:
SCHEDULE A
ISSUED AND PENDING PATENTS
Patents Issued by U.S. Patent
and Trademark Office
Patent No. Issue Date Inventor(s) Title
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Borrower
Patents Pending with U.S. Patent
and Trademark Office
Serial No. Filing Date Inventor(s) Title
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by Borrower
-2-
Foreign Patents and Patent Applications
CANADA
Patent No. Issue Date Inventor(s) Title
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[OTHER COUNTRIES]
Patent No. Issue Date Inventor(s) Title
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