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EXHIBIT 4.7
PATENT SECURITY AGREEMENT
THIS PATENT SECURITY AGREEMENT ("Agreement") is made as of
December 11, 2000, by and between XXXX CORPORATION, a Delaware corporation
("Grantor"), and ABN AMRO BANK N.V., as contractual representative (the
"Administrative Agent") for its benefit and the benefit of the "Holders of
Secured Obligations" (as such term is defined in the "Credit Agreement" defined
below).
WITNESSETH:
WHEREAS, Sybron Dental Management, Inc., the Subsidiary Swing
Line Borrowers from time to time party thereto, Xxxx Corporation and Ormco
Corporation, as the "Borrowers", Sybron Dental Specialties, Inc., as the
"Parent", the institutions from time to time party thereto as "Lenders", the
Administrative Agent, The Chase Manhattan Bank, as "Syndication Agent and First
Union National Bank, as "Documentation Agent" are parties to that certain Credit
Agreement dated as of November 28, 2000 (as the same may hereafter be modified,
amended, restated or supplemented from time to time, the "Credit Agreement"),
pursuant to which the Lenders may, from time to time, extend credit to
Borrowers; and
WHEREAS, Grantor and the Administrative Agent are parties to
that certain Security Agreement, dated as of December 11, 2000 (as the same may
hereafter be modified, amended, restated or supplemented from time to time, the
"Security Agreement"), pursuant to which Grantor has granted a security interest
in certain of its assets to the Administrative Agent for the benefit of the
Administrative Agent and the Holders of Secured Obligations; and
WHEREAS, the Lenders have required Grantor to execute and
deliver this Agreement (i) in order to secure the prompt and complete payment,
observance and performance of all of the "Secured Obligations" (as defined in
the Credit Agreement) and (ii) as a condition precedent to any extension of
credit to the Borrowers under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor agrees as follows:
SECTION 1. Defined Terms.
(a) Unless otherwise defined herein, each capitalized term used herein
that is defined in the Credit Agreement shall have the meaning specified for
such term in the Credit Agreement. Unless otherwise defined herein or in the
Credit Agreement, each capitalized term used herein that is defined in the
Security Agreement shall have the meaning specified for such term in the
Security Agreement.
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(b) The words "hereof," "herein" and "hereunder" and words of like
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section references are to
this Agreement unless otherwise specified.
(c) All terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural, and vice versa, unless otherwise
specified.
SECTION 2. Incorporation of Premises. The premises set forth above are
incorporated into this Agreement by this reference thereto and are made a part
hereof.
SECTION 3. Incorporation of the Credit Agreement. The Credit Agreement
and the terms and provisions thereof are hereby incorporated herein in their
entirety by this reference thereto.
SECTION 4. Security Interest in Patents. To secure the complete and
timely payment, performance and satisfaction of all of the Secured Obligations,
Grantor hereby grants to the Administrative Agent, for the benefit of the
Holders of Secured Obligations, a security interest in, as and by way of a first
mortgage and security interest having priority over all other security interests
(other than Permitted Existing Liens), with power of sale to the extent
permitted by applicable law, all of Grantor's now owned or existing and
hereafter acquired or arising:
(a) domestic patents and patent applications, and the inventions and
improvements described and claimed therein, including, without limitation, those
patents and patent applications listed on Schedule A attached hereto and made a
part hereof, and (i) the reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, (ii) all income, royalties,
damages and payments now and hereafter due and/or payable under and with respect
thereto, including, without limitation, payments under all licenses entered into
in connection therewith and damages and payments for past or future
infringements thereof, (iii) the right to xxx for past, present and future
infringements thereof, and (iv) all of Grantor's rights corresponding thereto
throughout the world (all of the foregoing patents and applications, together
with the items described in clauses (i)-(iv) in this Section 4(a) are sometimes
hereinafter individually and/or collectively referred to as the "Patents"); and
(b) rights under or interest in any patent license agreements with any
other party, whether Grantor is a licensee or licensor under any such license
agreement, including, without limitation, those patent license agreements listed
on Schedule B attached hereto and made a part hereof, and the right to prepare
for sale and sell any and all Inventory now or hereafter owned by Grantor and
now or hereafter covered by such licenses (all of the foregoing are hereinafter
referred to collectively as the "Licenses").
SECTION 5. Restrictions on Future Agreements. Grantor will not, after
the date hereof, without the Administrative Agent's prior written consent, enter
into any agreement, including, without limitation, any license agreement, which
is inconsistent with this Agreement, and Grantor further
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agrees that it will not take any action, and will use its reasonable commercial
efforts not to permit any action to be taken by others, including, without
limitation, licensees, or fail to take any action, which would in any respect
affect the validity or enforcement of the rights transferred to the
Administrative Agent under this Agreement or the rights associated with the
Patents or Licenses.
SECTION 6. New Patents and Licenses. Grantor represents and warrants
that, from and after the Closing Date, (a) the Patents listed on Schedule A
include all of the domestic patents and patent applications now owned or held by
Grantor, (b) the Licenses listed on Schedule B include all of the patent license
agreements under which Grantor is the licensee or licensor and (c) no liens,
claims or security interests in such Patents and Licenses have been granted by
Grantor to any Person other than the Administrative Agent or the holders of
Permitted Existing Liens. If, prior to the termination of this Agreement,
Grantor shall (i) obtain rights to any new domestic patentable inventions, (ii)
become entitled to the benefit of any domestic patent, patent application,
license or any reissue, division, continuation, renewal, extension or
continuation-in-part of any Patent or any improvement on any Patent or License,
or (iii) enter into any new patent license agreement, the provisions of Section
4 above shall automatically apply thereto. Grantor shall give to the
Administrative Agent written notice of events described in clauses (i), (ii) and
(iii) of the preceding sentence promptly after the occurrence thereof, but in
any event not less frequently than on a quarterly basis. Grantor hereby
authorizes the Administrative Agent to modify this Agreement unilaterally (i) by
amending Schedule A to include any future patents and patent applications, and
by amending Schedule B to include any future domestic patent license agreements,
which are Patents or Licenses under Section 4 above or under this Section 6, and
(ii) by filing, in addition to and not in substitution for this Agreement, a
duplicate original of this Agreement containing on Schedule A or B thereto, as
the case may be, such future patents, patent applications and license
agreements.
SECTION 7. Royalties. Grantor hereby agrees that the use by the
Administrative Agent of the Patents and Licenses as authorized hereunder in
connection with the Administrative Agent's exercise of its rights and remedies
under Section 15 or pursuant to Section 17 of the Security Agreement shall be
coextensive with Grantor's rights thereunder and with respect thereto and
without any liability for royalties or other related charges from the
Administrative Agent or the other Holders of Secured Obligations to Grantor.
SECTION 8. Right to Inspect; Further Assignments and Security
Interests. The Administrative Agent may at all reasonable times (and at any time
when an Unmatured Default or Default exists) have access to, examine, audit,
make copies (at Grantor's expense) and extracts from and inspect Grantor's
premises and examine Grantor's books, records and operations relating to the
Patents and Licenses; provided, that in conducting such inspections and
examinations, the Administrative Agent shall use reasonable efforts not to
disturb unnecessarily the conduct of Grantor's ordinary business operations.
Grantor agrees not to sell or assign its respective interests in, or grant any
license under, the Patents or the Licenses without the prior and express written
consent of the Administrative Agent (which consent, prior to the occurrence and
continuance of a Default, shall not be unreasonably withheld).
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SECTION 9. Nature and Continuation of the Administrative Agent's
Security Interest; Termination of the Administrative Agent's Security Interest.
This Agreement is made for collateral security purposes only. This Agreement
shall create a continuing security interest in the Patents and Licenses and
shall terminate only when the Secured Obligations have been paid in full in cash
and the Credit Agreement and the Security Agreement have been terminated. When
this Agreement has terminated, the Administrative Agent shall promptly execute
and deliver to Grantor, at Grantor's expense, all termination statements and
other instruments as may be necessary or proper to terminate the Administrative
Agent's security interest in the Patents and the Licenses, subject to any
disposition thereof which may have been made by the Administrative Agent
pursuant to this Agreement or the Security Agreement.
SECTION 10. Duties of Grantor. Grantor shall have the duty, to the
extent desirable in the normal conduct of Grantor's business and consistent with
the exercise of its reasonable business judgment, to: (i) prosecute diligently
any patent application that is part of the Patents pending as of the date hereof
or hereafter until the termination of this Agreement, and (ii) make application
on unpatented but patentable inventions. Grantor further agrees (i) not to
abandon any Patent or License unless the Grantor reasonably determines that it
is in the best interests to do so and such abandonment will not materially
impair Grantor's ability to maintain its business in the ordinary course, and
(ii) to use its reasonable commercial efforts to maintain in full force and
effect the Patents and the Licenses that are or shall be necessary or
economically desirable in the operation of Grantor's business. Any expenses
incurred in connection with the foregoing shall be borne by Grantor. Neither the
Administrative Agent nor any of the Holders of Secured Obligations shall have
any duty with respect to the Patents and Licenses. Without limiting the
generality of the foregoing, neither the Administrative Agent nor any of the
Holders of Secured Obligations shall be under any obligation to take any steps
necessary to preserve rights in the Patents or Licenses against any other
parties, but the Administrative Agent may do so at its option from and after the
occurrence of a Default, and all expenses incurred in connection therewith shall
be for the sole account of Grantor and shall be added to the Secured Obligations
secured hereby.
SECTION 11. The Administrative Agent's Right to Xxx. From and after the
occurrence of a Default, the Administrative Agent shall have the right, but
shall not be obligated, to bring suit in its own name to enforce the Patents and
the Licenses and, if the Administrative Agent shall commence any such suit,
Grantor shall, at the request of the Administrative Agent, do any and all lawful
acts and execute any and all proper documents required by the Administrative
Agent in aid of such enforcement. Grantor shall, upon demand, promptly reimburse
the Administrative Agent for all costs and expenses incurred by the
Administrative Agent in the exercise of its rights under this Section 11
(including, without limitation, reasonable fees and expenses of attorneys and
paralegals for the Administrative Agent).
SECTION 12. Waivers. The Administrative Agent's failure, at any time or
times hereafter, to require strict performance by Grantor of any provision of
this Agreement shall not waive, affect or diminish any right of the
Administrative Agent thereafter to demand strict compliance and performance
therewith nor shall any course of dealing between Grantor and the Administrative
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Agent have such effect. No single or partial exercise of any right hereunder
shall preclude any other or further exercise thereof or the exercise of any
other right. None of the undertakings, agreements, warranties, covenants and
representations of Grantor contained in this Agreement shall be deemed to have
been suspended or waived by the Administrative Agent unless such suspension or
waiver is in writing signed by an officer of the Administrative Agent and
directed to Grantor specifying such suspension or waiver.
SECTION 13. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but the provisions of this Agreement are severable, and if any
clause or provision shall be held invalid and unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part hereof, in such jurisdiction, and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
SECTION 14. Modification. This Agreement cannot be altered, amended or
modified in any way, except as specifically provided in Section 6 hereof or by a
writing signed by the parties hereto.
SECTION 15. Cumulative Remedies; Power of Attorney. Grantor hereby
irrevocably designates, constitutes and appoints the Administrative Agent (and
all Persons designated by the Administrative Agent in its sole and absolute
discretion) as Grantor's true and lawful attorney-in-fact, and authorizes the
Administrative Agent and any of the Administrative Agent's designees, in
Grantor's or the Administrative Agent's name, to take any action and execute any
instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation, from
and during the continuance of a Default and the giving by the Administrative
Agent of notice to Grantor of the Administrative Agent's intention to enforce
its rights and claims against Grantor, to (i) endorse Grantor's name on all
applications, documents, papers and instruments necessary or desirable for the
Administrative Agent in the use of the Patents or the Licenses, (ii) assign,
pledge, convey or otherwise transfer title in or dispose of the Patents or the
Licenses to anyone on commercially reasonable terms, (iii) grant or issue any
exclusive or nonexclusive license under the Patents or, to the extent permitted,
under the Licenses, to anyone on commercially reasonable terms, and (iv) take
any other actions with respect to the Patents or the Licenses as the
Administrative Agent deems in its own or the Holders of Secured Obligations'
best interest. Grantor hereby ratifies all that such attorney shall lawfully do
or cause to be done by virtue hereof. This power of attorney is coupled with an
interest and shall be irrevocable until all of the Secured Obligations shall
have been paid in full in cash and the Credit Agreement shall have been
terminated. Grantor acknowledges and agrees that this Agreement is not intended
to limit or restrict in any way the rights and remedies of the Administrative
Agent or the other Holders of Secured Obligations under the Security Agreement,
but rather is intended to facilitate the exercise of such rights and remedies.
The Administrative Agent shall have, in addition to all other
rights and remedies given it by the terms of this Agreement, all rights and
remedies allowed by law and the rights and remedies of a secured party under the
Uniform Commercial Code as enacted in any jurisdiction in
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which the Patents or the Licenses may be located or deemed located. Upon the
occurrence and during the continuance of a Default and the election by the
Administrative Agent to exercise any of its remedies under Section 9-504 or
Section 9-505 of the Uniform Commercial Code with respect to the Patents and
Licenses, Grantor agrees to assign, convey and otherwise transfer title in and
to the Patents and the Licenses to the Administrative Agent or any transferee of
the Administrative Agent and to execute and deliver to the Administrative Agent
or any such transferee all such agreements, documents and instruments as may be
necessary, in the Administrative Agent's sole discretion, to effect such
assignment, conveyance and transfer. All of the Administrative Agent's rights
and remedies with respect to the Patents and the Licenses, whether established
hereby, by the Security Agreement, by any other agreements or by law, shall be
cumulative and may be exercised separately or concurrently. Notwithstanding
anything set forth herein to the contrary, it is hereby expressly agreed that
upon the occurrence and during the continuance of a Default, the Administrative
Agent may exercise any of the rights and remedies provided in this Agreement,
the Security Agreement and any of the other Loan Documents. Grantor agrees that
any notification of intended disposition of any of the Patents and Licenses
required by law shall be deemed reasonably and properly given if given at least
ten (10) days before such disposition.
SECTION 16. Successors and Assigns. This Agreement shall be binding
upon Grantor and its successors and assigns, and shall inure to the benefit of
each of the Holders of Secured Obligations and its nominees, successors and
assigns. Grantor's successors and assigns shall include, without limitation, a
receiver, trustee or debtor-in-possession of or for Grantor; provided, however,
that Grantor shall not voluntarily assign or transfer its rights or obligations
hereunder without the Administrative Agent's prior written consent.
SECTION 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION
735 ILCS SECTION 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT
OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS. ANY DISPUTE BETWEEN THE PLEDGOR AND THE
ADMINISTRATIVE AGENT OR ANY LENDER, OR ANY OTHER HOLDER OF SECURED OBLIGATIONS
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT, AND WHETHER ARISING
IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET
SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
SECTION 18. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(a) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (b), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING
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OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS,
BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (a) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(b) OTHER JURISDICTIONS. THE GRANTOR AGREES THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF SECURED OBLIGATIONS SHALL HAVE THE
RIGHT TO PROCEED AGAINST THE GRANTOR OR ITS RESPECTIVE PROPERTY IN A COURT IN
ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER SUCH
GRANTOR OR (2) REALIZE ON THE COLLATERAL GRANTED IN CONNECTION HEREWITH, OR (3)
IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH
PERSON. THE GRANTOR AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS
IN ANY PROCEEDING BROUGHT BY SUCH PERSON IN A LOCATION OUTSIDE OF ILLINOIS TO
REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF SUCH PERSON; PROVIDED THAT THE GRANTOR'S RIGHT TO ASSERT
PERMISSIVE COUNTERCLAIMS IN STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS
SHALL BE PRESERVED. THE GRANTOR WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (b).
(c) VENUE. EACH OF THE LENDERS AND THE GRANTOR IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(d) THE GRANTOR WAIVES PERSONAL SERVICE OF ANY PROCESS UPON IT AND
IRREVOCABLY APPOINTS CT CORPORATION, WITH OFFICES AT 000 XXXXX XXXXXXX XXXXXX,
XXXXXXX, XXXXXXXX 00000, AS THE GRANTOR'S AGENT FOR THE PURPOSE OF ACCEPTING
SERVICE OF PROCESS ISSUED BY ANY COURT. NOTHING HEREIN SHALL IN ANY WAY BE
DEEMED TO LIMIT THE ABILITY OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE
ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.
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(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(f) WAIVER OF BOND. THE GRANTOR WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO REALIZE ON THE COLLATERAL, ENFORCE ANY JUDGMENT OR OTHER COURT
ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE,
TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTION, THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT.
(g) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 18, WITH ITS COUNSEL.
SECTION 19. Notices. All notices or other communications hereunder
shall be given in the manner and to the address of the Parent, in the case of
the Grantor, and to the address of the Administrative Agent, in each case, as
set forth in the Credit Agreement.
SECTION 20. Section Titles. The section titles herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
SECTION 21. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 22. Merger. This Agreement represents the final agreement of
the Grantor with respect to the matters contained herein and may not be
contradicted by evidence of prior or contemporaneous agreements, or subsequent
oral agreements, between the Grantor and the Administrative Agent or any Holder
of Secured Obligations.
SECTION 23. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
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SIGNATURE PAGE TO PATENT SECURITY AGREEMENT
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXX CORPORATION
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Representative
ATTEST:
By:
--------------------------------
Title:
Accepted and agreed to as of the day and
year first above written.
ABN AMRO BANK N.V.,
as Administrative Agent
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
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SCHEDULE A
to
Patent Security Agreement
Dated as of December 11, 2000
See attached
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SCHEDULE B
to
Patent Security Agreement
Dated as of December 11, 2000
See attached
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STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing Patent Security Agreement was acknowledged
before me this 7th day of December, 2000, by Xxxxxxx X. Xxxxxxx, an Authorized
Representative of Xxxx Corporation, a Delaware corporation, on behalf of such
corporation.
--------------------------------
Notary Public
Xxxx County, Illinois
My commission expires: 12/15/02
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STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing Patent Security Agreement was acknowledged
before me this ____ day of December, 2000, by ________________________, a
______________________________ and _____________________________, a
_______________________________of ABN AMRO Bank N.V., on behalf of such
institution.
-----------------------------
Notary Public
Xxxx County, Illinois
My commission expires:
-------
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PATENT SECURITY AGREEMENT
THIS PATENT SECURITY AGREEMENT ("Agreement") is made as of
December 11, 2000, by and between ORMCO CORPORATION, a Delaware corporation
("Grantor"), and ABN AMRO BANK N.V., as contractual representative (the
"Administrative Agent") for its benefit and the benefit of the "Holders of
Secured Obligations" (as such term is defined in the "Credit Agreement" defined
below).
WITNESSETH:
WHEREAS, Sybron Dental Management, Inc., the Subsidiary Swing
Line Borrowers from time to time party thereto, Xxxx Corporation and Ormco
Corporation, as the "Borrowers", Sybron Dental Specialties, Inc., as the
"Parent", the institutions from time to time party thereto as "Lenders", the
Administrative Agent, The Chase Manhattan Bank, as "Syndication Agent and First
Union National Bank, as "Documentation Agent" are parties to that certain Credit
Agreement dated as of November 28, 2000 (as the same may hereafter be modified,
amended, restated or supplemented from time to time, the "Credit Agreement"),
pursuant to which the Lenders may, from time to time, extend credit to
Borrowers; and
WHEREAS, Grantor and the Administrative Agent are parties to
that certain Security Agreement, dated as of December 11, 2000 (as the same may
hereafter be modified, amended, restated or supplemented from time to time, the
"Security Agreement"), pursuant to which Grantor has granted a security interest
in certain of its assets to the Administrative Agent for the benefit of the
Administrative Agent and the Holders of Secured Obligations; and
WHEREAS, the Lenders have required Grantor to execute and
deliver this Agreement (i) in order to secure the prompt and complete payment,
observance and performance of all of the "Secured Obligations" (as defined in
the Credit Agreement) and (ii) as a condition precedent to any extension of
credit to the Borrowers under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor agrees as follows:
SECTION 1. Defined Terms.
(a) Unless otherwise defined herein, each capitalized term used herein
that is defined in the Credit Agreement shall have the meaning specified for
such term in the Credit Agreement. Unless otherwise defined herein or in the
Credit Agreement, each capitalized term used herein that is defined in the
Security Agreement shall have the meaning specified for such term in the
Security Agreement.
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(b) The words "hereof," "herein" and "hereunder" and words of like
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section references are to
this Agreement unless otherwise specified.
(c) All terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural, and vice versa, unless otherwise
specified.
SECTION 2. Incorporation of Premises. The premises set forth above are
incorporated into this Agreement by this reference thereto and are made a part
hereof.
SECTION 3. Incorporation of the Credit Agreement. The Credit Agreement
and the terms and provisions thereof are hereby incorporated herein in their
entirety by this reference thereto.
SECTION 4. Security Interest in Patents. To secure the complete and
timely payment, performance and satisfaction of all of the Secured Obligations,
Grantor hereby grants to the Administrative Agent, for the benefit of the
Holders of Secured Obligations, a security interest in, as and by way of a first
mortgage and security interest having priority over all other security interests
(other than Permitted Existing Liens), with power of sale to the extent
permitted by applicable law, all of Grantor's now owned or existing and
hereafter acquired or arising:
(a) domestic patents and patent applications, and the inventions and
improvements described and claimed therein, including, without limitation, those
patents and patent applications listed on Schedule A attached hereto and made a
part hereof, and (i) the reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, (ii) all income, royalties,
damages and payments now and hereafter due and/or payable under and with respect
thereto, including, without limitation, payments under all licenses entered into
in connection therewith and damages and payments for past or future
infringements thereof, (iii) the right to xxx for past, present and future
infringements thereof, and (iv) all of Grantor's rights corresponding thereto
throughout the world (all of the foregoing patents and applications, together
with the items described in clauses (i)-(iv) in this Section 4(a) are sometimes
hereinafter individually and/or collectively referred to as the "Patents"); and
(b) rights under or interest in any patent license agreements with any
other party, whether Grantor is a licensee or licensor under any such license
agreement, including, without limitation, those patent license agreements listed
on Schedule B attached hereto and made a part hereof, and the right to prepare
for sale and sell any and all Inventory now or hereafter owned by Grantor and
now or hereafter covered by such licenses (all of the foregoing are hereinafter
referred to collectively as the "Licenses").
SECTION 5. Restrictions on Future Agreements. Grantor will not, after
the date hereof, without the Administrative Agent's prior written consent, enter
into any agreement, including, without limitation, any license agreement, which
is inconsistent with this Agreement, and Grantor further
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agrees that it will not take any action, and will use its reasonable commercial
efforts not to permit any action to be taken by others, including, without
limitation, licensees, or fail to take any action, which would in any respect
affect the validity or enforcement of the rights transferred to the
Administrative Agent under this Agreement or the rights associated with the
Patents or Licenses.
SECTION 6. New Patents and Licenses. Grantor represents and warrants
that, from and after the Closing Date, (a) the Patents listed on Schedule A
include all of the domestic patents and patent applications now owned or held by
Grantor, (b) the Licenses listed on Schedule B include all of the patent license
agreements under which Grantor is the licensee or licensor and (c) no liens,
claims or security interests in such Patents and Licenses have been granted by
Grantor to any Person other than the Administrative Agent or the holders of
Permitted Existing Liens. If, prior to the termination of this Agreement,
Grantor shall (i) obtain rights to any new domestic patentable inventions, (ii)
become entitled to the benefit of any domestic patent, patent application,
license or any reissue, division, continuation, renewal, extension or
continuation-in-part of any Patent or any improvement on any Patent or License,
or (iii) enter into any new patent license agreement, the provisions of Section
4 above shall automatically apply thereto. Grantor shall give to the
Administrative Agent written notice of events described in clauses (i), (ii) and
(iii) of the preceding sentence promptly after the occurrence thereof, but in
any event not less frequently than on a quarterly basis. Grantor hereby
authorizes the Administrative Agent to modify this Agreement unilaterally (i) by
amending Schedule A to include any future patents and patent applications, and
by amending Schedule B to include any future domestic patent license agreements,
which are Patents or Licenses under Section 4 above or under this Section 6, and
(ii) by filing, in addition to and not in substitution for this Agreement, a
duplicate original of this Agreement containing on Schedule A or B thereto, as
the case may be, such future patents, patent applications and license
agreements.
SECTION 7. Royalties. Grantor hereby agrees that the use by the
Administrative Agent of the Patents and Licenses as authorized hereunder in
connection with the Administrative Agent's exercise of its rights and remedies
under Section 15 or pursuant to Section 17 of the Security Agreement shall be
coextensive with Grantor's rights thereunder and with respect thereto and
without any liability for royalties or other related charges from the
Administrative Agent or the other Holders of Secured Obligations to Grantor.
SECTION 8. Right to Inspect; Further Assignments and Security
Interests. The Administrative Agent may at all reasonable times (and at any time
when an Unmatured Default or Default exists) have access to, examine, audit,
make copies (at Grantor's expense) and extracts from and inspect Grantor's
premises and examine Grantor's books, records and operations relating to the
Patents and Licenses; provided, that in conducting such inspections and
examinations, the Administrative Agent shall use reasonable efforts not to
disturb unnecessarily the conduct of Grantor's ordinary business operations.
Grantor agrees not to sell or assign its respective interests in, or grant any
license under, the Patents or the Licenses without the prior and express written
consent of the Administrative Agent (which consent, prior to the occurrence and
continuance of a Default, shall not be unreasonably withheld).
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SECTION 9. Nature and Continuation of the Administrative Agent's
Security Interest; Termination of the Administrative Agent's Security Interest.
This Agreement is made for collateral security purposes only. This Agreement
shall create a continuing security interest in the Patents and Licenses and
shall terminate only when the Secured Obligations have been paid in full in cash
and the Credit Agreement and the Security Agreement have been terminated. When
this Agreement has terminated, the Administrative Agent shall promptly execute
and deliver to Grantor, at Grantor's expense, all termination statements and
other instruments as may be necessary or proper to terminate the Administrative
Agent's security interest in the Patents and the Licenses, subject to any
disposition thereof which may have been made by the Administrative Agent
pursuant to this Agreement or the Security Agreement.
SECTION 10. Duties of Grantor. Grantor shall have the duty, to the
extent desirable in the normal conduct of Grantor's business and consistent with
the exercise of its reasonable business judgment, to: (i) prosecute diligently
any patent application that is part of the Patents pending as of the date hereof
or hereafter until the termination of this Agreement, and (ii) make application
on unpatented but patentable inventions. Grantor further agrees (i) not to
abandon any Patent or License unless the Grantor reasonably determines that it
is in the best interests to do so and such abandonment will not materially
impair Grantor's ability to maintain its business in the ordinary course, and
(ii) to use its reasonable commercial efforts to maintain in full force and
effect the Patents and the Licenses that are or shall be necessary or
economically desirable in the operation of Grantor's business. Any expenses
incurred in connection with the foregoing shall be borne by Grantor. Neither the
Administrative Agent nor any of the Holders of Secured Obligations shall have
any duty with respect to the Patents and Licenses. Without limiting the
generality of the foregoing, neither the Administrative Agent nor any of the
Holders of Secured Obligations shall be under any obligation to take any steps
necessary to preserve rights in the Patents or Licenses against any other
parties, but the Administrative Agent may do so at its option from and after the
occurrence of a Default, and all expenses incurred in connection therewith shall
be for the sole account of Grantor and shall be added to the Secured Obligations
secured hereby.
SECTION 11. The Administrative Agent's Right to Xxx. From and after the
occurrence of a Default, the Administrative Agent shall have the right, but
shall not be obligated, to bring suit in its own name to enforce the Patents and
the Licenses and, if the Administrative Agent shall commence any such suit,
Grantor shall, at the request of the Administrative Agent, do any and all lawful
acts and execute any and all proper documents required by the Administrative
Agent in aid of such enforcement. Grantor shall, upon demand, promptly reimburse
the Administrative Agent for all costs and expenses incurred by the
Administrative Agent in the exercise of its rights under this Section 11
(including, without limitation, reasonable fees and expenses of attorneys and
paralegals for the Administrative Agent).
SECTION 12. Waivers. The Administrative Agent's failure, at any time or
times hereafter, to require strict performance by Grantor of any provision of
this Agreement shall not waive, affect or diminish any right of the
Administrative Agent thereafter to demand strict compliance and performance
therewith nor shall any course of dealing between Grantor and the Administrative
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Agent have such effect. No single or partial exercise of any right hereunder
shall preclude any other or further exercise thereof or the exercise of any
other right. None of the undertakings, agreements, warranties, covenants and
representations of Grantor contained in this Agreement shall be deemed to have
been suspended or waived by the Administrative Agent unless such suspension or
waiver is in writing signed by an officer of the Administrative Agent and
directed to Grantor specifying such suspension or waiver.
SECTION 13. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but the provisions of this Agreement are severable, and if any
clause or provision shall be held invalid and unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part hereof, in such jurisdiction, and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
SECTION 14. Modification. This Agreement cannot be altered, amended or
modified in any way, except as specifically provided in Section 6 hereof or by a
writing signed by the parties hereto.
SECTION 15. Cumulative Remedies; Power of Attorney. Grantor hereby
irrevocably designates, constitutes and appoints the Administrative Agent (and
all Persons designated by the Administrative Agent in its sole and absolute
discretion) as Grantor's true and lawful attorney-in-fact, and authorizes the
Administrative Agent and any of the Administrative Agent's designees, in
Grantor's or the Administrative Agent's name, to take any action and execute any
instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation, from
and during the continuance of a Default and the giving by the Administrative
Agent of notice to Grantor of the Administrative Agent's intention to enforce
its rights and claims against Grantor, to (i) endorse Grantor's name on all
applications, documents, papers and instruments necessary or desirable for the
Administrative Agent in the use of the Patents or the Licenses, (ii) assign,
pledge, convey or otherwise transfer title in or dispose of the Patents or the
Licenses to anyone on commercially reasonable terms, (iii) grant or issue any
exclusive or nonexclusive license under the Patents or, to the extent permitted,
under the Licenses, to anyone on commercially reasonable terms, and (iv) take
any other actions with respect to the Patents or the Licenses as the
Administrative Agent deems in its own or the Holders of Secured Obligations'
best interest. Grantor hereby ratifies all that such attorney shall lawfully do
or cause to be done by virtue hereof. This power of attorney is coupled with an
interest and shall be irrevocable until all of the Secured Obligations shall
have been paid in full in cash and the Credit Agreement shall have been
terminated. Grantor acknowledges and agrees that this Agreement is not intended
to limit or restrict in any way the rights and remedies of the Administrative
Agent or the other Holders of Secured Obligations under the Security Agreement,
but rather is intended to facilitate the exercise of such rights and remedies.
The Administrative Agent shall have, in addition to all other
rights and remedies given it by the terms of this Agreement, all rights and
remedies allowed by law and the rights and remedies of a secured party under the
Uniform Commercial Code as enacted in any jurisdiction in
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which the Patents or the Licenses may be located or deemed located. Upon the
occurrence and during the continuance of a Default and the election by the
Administrative Agent to exercise any of its remedies under Section 9-504 or
Section 9-505 of the Uniform Commercial Code with respect to the Patents and
Licenses, Grantor agrees to assign, convey and otherwise transfer title in and
to the Patents and the Licenses to the Administrative Agent or any transferee of
the Administrative Agent and to execute and deliver to the Administrative Agent
or any such transferee all such agreements, documents and instruments as may be
necessary, in the Administrative Agent's sole discretion, to effect such
assignment, conveyance and transfer. All of the Administrative Agent's rights
and remedies with respect to the Patents and the Licenses, whether established
hereby, by the Security Agreement, by any other agreements or by law, shall be
cumulative and may be exercised separately or concurrently. Notwithstanding
anything set forth herein to the contrary, it is hereby expressly agreed that
upon the occurrence and during the continuance of a Default, the Administrative
Agent may exercise any of the rights and remedies provided in this Agreement,
the Security Agreement and any of the other Loan Documents. Grantor agrees that
any notification of intended disposition of any of the Patents and Licenses
required by law shall be deemed reasonably and properly given if given at least
ten (10) days before such disposition.
SECTION 16. Successors and Assigns. This Agreement shall be binding
upon Grantor and its successors and assigns, and shall inure to the benefit of
each of the Holders of Secured Obligations and its nominees, successors and
assigns. Grantor's successors and assigns shall include, without limitation, a
receiver, trustee or debtor-in-possession of or for Grantor; provided, however,
that Grantor shall not voluntarily assign or transfer its rights or obligations
hereunder without the Administrative Agent's prior written consent.
SECTION 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION
735 ILCS SECTION 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT
OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS. ANY DISPUTE BETWEEN THE PLEDGOR AND THE
ADMINISTRATIVE AGENT OR ANY LENDER, OR ANY OTHER HOLDER OF SECURED OBLIGATIONS
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT, AND WHETHER ARISING
IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET
SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
SECTION 18. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(a) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (b), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING
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20
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS,
BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (a) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(b) OTHER JURISDICTIONS. THE GRANTOR AGREES THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF SECURED OBLIGATIONS SHALL HAVE THE
RIGHT TO PROCEED AGAINST THE GRANTOR OR ITS RESPECTIVE PROPERTY IN A COURT IN
ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER SUCH
GRANTOR OR (2) REALIZE ON THE COLLATERAL GRANTED IN CONNECTION HEREWITH, OR (3)
IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH
PERSON. THE GRANTOR AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS
IN ANY PROCEEDING BROUGHT BY SUCH PERSON IN A LOCATION OUTSIDE OF ILLINOIS TO
REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF SUCH PERSON; PROVIDED THAT THE GRANTOR'S RIGHT TO ASSERT
PERMISSIVE COUNTERCLAIMS IN STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS
SHALL BE PRESERVED. THE GRANTOR WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (b).
(c) VENUE. EACH OF THE LENDERS AND THE GRANTOR IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(d) THE GRANTOR WAIVES PERSONAL SERVICE OF ANY PROCESS UPON IT AND
IRREVOCABLY APPOINTS CT CORPORATION, WITH OFFICES AT 000 XXXXX XXXXXXX XXXXXX,
XXXXXXX, XXXXXXXX 00000, AS THE GRANTOR'S AGENT FOR THE PURPOSE OF ACCEPTING
SERVICE OF PROCESS ISSUED BY ANY COURT. NOTHING HEREIN SHALL IN ANY WAY BE
DEEMED TO LIMIT THE ABILITY OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE
ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.
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(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(f) WAIVER OF BOND. THE GRANTOR WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO REALIZE ON THE COLLATERAL, ENFORCE ANY JUDGMENT OR OTHER COURT
ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE,
TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTION, THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT.
(g) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 18, WITH ITS COUNSEL.
SECTION 19. Notices. All notices or other communications hereunder
shall be given in the manner and to the address of the Parent, in the case of
the Grantor, and to the address of the Administrative Agent, in each case, as
set forth in the Credit Agreement.
SECTION 20. Section Titles. The section titles herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
SECTION 21. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 22. Merger. This Agreement represents the final agreement of
the Grantor with respect to the matters contained herein and may not be
contradicted by evidence of prior or contemporaneous agreements, or subsequent
oral agreements, between the Grantor and the Administrative Agent or any Holder
of Secured Obligations.
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SECTION 23. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
ORMCO CORPORATION
By:
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Representative
ATTEST:
By:
-------------------------
Title:
Accepted and agreed to
as of the day and year
first above written.
ABN AMRO BANK N.V.,
as Administrative Agent
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
24
SCHEDULE A
to
Patent Security Agreement
Dated as of December 11, 2000
See attached
25
SCHEDULE B
to
Patent Security Agreement
Dated as of December 11, 2000
See attached
26
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing Patent Security Agreement was acknowledged before me this
____ day of December, 2000, by Xxxxxxx X. Xxxxxxx, an Authorized Representative
of Ormco Corporation, a Delaware corporation, on behalf of such corporation.
------------------------------------
Notary Public
Xxxx County, Illinois
My commission expires:
--------------
27
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing Patent Security Agreement was acknowledged before me this
____ day of December, 2000, by ________________________, a
______________________________ and ______________________________, a
_________________________of ABN AMRO Bank N.V., on behalf of such institution.
------------------------------------
Notary Public
Xxxx County, Illinois
My commission expires:
--------------
28
PATENT SECURITY AGREEMENT
THIS PATENT SECURITY AGREEMENT ("Agreement") is made as of
December 11, 2000, by and between METREX RESEARCH CORPORATION, a Wisconsin
corporation ("Grantor"), and ABN AMRO BANK N.V., as contractual representative
(the "Administrative Agent") for its benefit and the benefit of the "Holders of
Secured Obligations" (as such term is defined in the "Credit Agreement" defined
below).
WITNESSETH:
WHEREAS, Sybron Dental Management, Inc., the Subsidiary Swing
Line Borrowers from time to time party thereto, Xxxx Corporation and Ormco
Corporation, as the "Borrowers", Sybron Dental Specialties, Inc., as the
"Parent", the institutions from time to time party thereto as "Lenders", the
Administrative Agent, The Chase Manhattan Bank, as "Syndication Agent and First
Union National Bank, as "Documentation Agent" are parties to that certain Credit
Agreement dated as of November 28, 2000 (as the same may hereafter be modified,
amended, restated or supplemented from time to time, the "Credit Agreement"),
pursuant to which the Lenders may, from time to time, extend credit to
Borrowers; and
WHEREAS, Grantor and the Administrative Agent are parties to
that certain Security Agreement, dated as of December 11, 2000 (as the same may
hereafter be modified, amended, restated or supplemented from time to time, the
"Security Agreement"), pursuant to which Grantor has granted a security interest
in certain of its assets to the Administrative Agent for the benefit of the
Administrative Agent and the Holders of Secured Obligations; and
WHEREAS, the Lenders have required Grantor to execute and
deliver this Agreement (i) in order to secure the prompt and complete payment,
observance and performance of all of the "Secured Obligations" (as defined in
the Credit Agreement) and (ii) as a condition precedent to any extension of
credit to the Borrowers under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor agrees as follows:
SECTION 1. Defined Terms.
(a) Unless otherwise defined herein, each capitalized term used herein
that is defined in the Credit Agreement shall have the meaning specified for
such term in the Credit Agreement. Unless otherwise defined herein or in the
Credit Agreement, each capitalized term used herein that is defined in the
Security Agreement shall have the meaning specified for such term in the
Security Agreement.
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(b) The words "hereof," "herein" and "hereunder" and words of like
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section references are to
this Agreement unless otherwise specified.
(c) All terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural, and vice versa, unless otherwise
specified.
SECTION 2. Incorporation of Premises. The premises set forth above are
incorporated into this Agreement by this reference thereto and are made a part
hereof.
SECTION 3. Incorporation of the Credit Agreement. The Credit Agreement
and the terms and provisions thereof are hereby incorporated herein in their
entirety by this reference thereto.
SECTION 4. Security Interest in Patents. To secure the complete and
timely payment, performance and satisfaction of all of the Secured Obligations,
Grantor hereby grants to the Administrative Agent, for the benefit of the
Holders of Secured Obligations, a security interest in, as and by way of a first
mortgage and security interest having priority over all other security interests
(other than Permitted Existing Liens), with power of sale to the extent
permitted by applicable law, all of Grantor's now owned or existing and
hereafter acquired or arising:
(a) domestic patents and patent applications, and the inventions and
improvements described and claimed therein, including, without limitation, those
patents and patent applications listed on Schedule A attached hereto and made a
part hereof, and (i) the reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, (ii) all income, royalties,
damages and payments now and hereafter due and/or payable under and with respect
thereto, including, without limitation, payments under all licenses entered into
in connection therewith and damages and payments for past or future
infringements thereof, (iii) the right to xxx for past, present and future
infringements thereof, and (iv) all of Grantor's rights corresponding thereto
throughout the world (all of the foregoing patents and applications, together
with the items described in clauses (i)-(iv) in this Section 4(a) are sometimes
hereinafter individually and/or collectively referred to as the "Patents"); and
(b) rights under or interest in any patent license agreements with any
other party, whether Grantor is a licensee or licensor under any such license
agreement, including, without limitation, those patent license agreements listed
on Schedule B attached hereto and made a part hereof, and the right to prepare
for sale and sell any and all Inventory now or hereafter owned by Grantor and
now or hereafter covered by such licenses (all of the foregoing are hereinafter
referred to collectively as the "Licenses").
SECTION 5. Restrictions on Future Agreements. Grantor will not, after
the date hereof, without the Administrative Agent's prior written consent, enter
into any agreement, including, without limitation, any license agreement, which
is inconsistent with this Agreement, and Grantor further agrees that it will not
take any action, and will use its reasonable commercial efforts not to permit
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30
any action to be taken by others, including, without limitation, licensees, or
fail to take any action, which would in any respect affect the validity or
enforcement of the rights transferred to the Administrative Agent under this
Agreement or the rights associated with the Patents or Licenses.
SECTION 6. New Patents and Licenses. Grantor represents and warrants
that, from and after the Closing Date, (a) the Patents listed on Schedule A
include all of the domestic patents and patent applications now owned or held by
Grantor, (b) the Licenses listed on Schedule B include all of the patent license
agreements under which Grantor is the licensee or licensor and (c) no liens,
claims or security interests in such Patents and Licenses have been granted by
Grantor to any Person other than the Administrative Agent or the holders of
Permitted Existing Liens. If, prior to the termination of this Agreement,
Grantor shall (i) obtain rights to any new domestic patentable inventions, (ii)
become entitled to the benefit of any domestic patent, patent application,
license or any reissue, division, continuation, renewal, extension or
continuation-in-part of any Patent or any improvement on any Patent or License,
or (iii) enter into any new patent license agreement, the provisions of Section
4 above shall automatically apply thereto. Grantor shall give to the
Administrative Agent written notice of events described in clauses (i), (ii) and
(iii) of the preceding sentence promptly after the occurrence thereof, but in
any event not less frequently than on a quarterly basis. Grantor hereby
authorizes the Administrative Agent to modify this Agreement unilaterally (i) by
amending Schedule A to include any future patents and patent applications, and
by amending Schedule B to include any future domestic patent license agreements,
which are Patents or Licenses under Section 4 above or under this Section 6, and
(ii) by filing, in addition to and not in substitution for this Agreement, a
duplicate original of this Agreement containing on Schedule A or B thereto, as
the case may be, such future patents, patent applications and license
agreements.
SECTION 7. Royalties. Grantor hereby agrees that the use by the
Administrative Agent of the Patents and Licenses as authorized hereunder in
connection with the Administrative Agent's exercise of its rights and remedies
under Section 15 or pursuant to Section 17 of the Security Agreement shall be
coextensive with Grantor's rights thereunder and with respect thereto and
without any liability for royalties or other related charges from the
Administrative Agent or the other Holders of Secured Obligations to Grantor.
SECTION 8. Right to Inspect; Further Assignments and Security
Interests. The Administrative Agent may at all reasonable times (and at any time
when an Unmatured Default or Default exists) have access to, examine, audit,
make copies (at Grantor's expense) and extracts from and inspect Grantor's
premises and examine Grantor's books, records and operations relating to the
Patents and Licenses; provided, that in conducting such inspections and
examinations, the Administrative Agent shall use reasonable efforts not to
disturb unnecessarily the conduct of Grantor's ordinary business operations.
Grantor agrees not to sell or assign its respective interests in, or grant any
license under, the Patents or the Licenses without the prior and express written
consent of the Administrative Agent (which consent, prior to the occurrence and
continuance of a Default, shall not be unreasonably withheld).
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SECTION 9. Nature and Continuation of the Administrative Agent's
Security Interest; Termination of the Administrative Agent's Security Interest.
This Agreement is made for collateral security purposes only. This Agreement
shall create a continuing security interest in the Patents and Licenses and
shall terminate only when the Secured Obligations have been paid in full in cash
and the Credit Agreement and the Security Agreement have been terminated. When
this Agreement has terminated, the Administrative Agent shall promptly execute
and deliver to Grantor, at Grantor's expense, all termination statements and
other instruments as may be necessary or proper to terminate the Administrative
Agent's security interest in the Patents and the Licenses, subject to any
disposition thereof which may have been made by the Administrative Agent
pursuant to this Agreement or the Security Agreement.
SECTION 10. Duties of Grantor. Grantor shall have the duty, to the
extent desirable in the normal conduct of Grantor's business and consistent with
the exercise of its reasonable business judgment, to: (i) prosecute diligently
any patent application that is part of the Patents pending as of the date hereof
or hereafter until the termination of this Agreement, and (ii) make application
on unpatented but patentable inventions. Grantor further agrees (i) not to
abandon any Patent or License unless the Grantor reasonably determines that it
is in the best interests to do so and such abandonment will not materially
impair Grantor's ability to maintain its business in the ordinary course, and
(ii) to use its reasonable commercial efforts to maintain in full force and
effect the Patents and the Licenses that are or shall be necessary or
economically desirable in the operation of Grantor's business. Any expenses
incurred in connection with the foregoing shall be borne by Grantor. Neither the
Administrative Agent nor any of the Holders of Secured Obligations shall have
any duty with respect to the Patents and Licenses. Without limiting the
generality of the foregoing, neither the Administrative Agent nor any of the
Holders of Secured Obligations shall be under any obligation to take any steps
necessary to preserve rights in the Patents or Licenses against any other
parties, but the Administrative Agent may do so at its option from and after the
occurrence of a Default, and all expenses incurred in connection therewith shall
be for the sole account of Grantor and shall be added to the Secured Obligations
secured hereby.
SECTION 11. The Administrative Agent's Right to Xxx. From and after the
occurrence of a Default, the Administrative Agent shall have the right, but
shall not be obligated, to bring suit in its own name to enforce the Patents and
the Licenses and, if the Administrative Agent shall commence any such suit,
Grantor shall, at the request of the Administrative Agent, do any and all lawful
acts and execute any and all proper documents required by the Administrative
Agent in aid of such enforcement. Grantor shall, upon demand, promptly reimburse
the Administrative Agent for all costs and expenses incurred by the
Administrative Agent in the exercise of its rights under this Section 11
(including, without limitation, reasonable fees and expenses of attorneys and
paralegals for the Administrative Agent).
SECTION 12. Waivers. The Administrative Agent's failure, at any time or
times hereafter, to require strict performance by Grantor of any provision of
this Agreement shall not waive, affect or diminish any right of the
Administrative Agent thereafter to demand strict compliance and performance
therewith nor shall any course of dealing between Grantor and the Administrative
Agent have such effect. No single or partial exercise of any right hereunder
shall preclude any other or further exercise thereof or the exercise of any
other right. None of the undertakings,
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agreements, warranties, covenants and representations of Grantor contained in
this Agreement shall be deemed to have been suspended or waived by the
Administrative Agent unless such suspension or waiver is in writing signed by an
officer of the Administrative Agent and directed to Grantor specifying such
suspension or waiver.
SECTION 13. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but the provisions of this Agreement are severable, and if any
clause or provision shall be held invalid and unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part hereof, in such jurisdiction, and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
SECTION 14. Modification. This Agreement cannot be altered, amended or
modified in any way, except as specifically provided in Section 6 hereof or by a
writing signed by the parties hereto.
SECTION 15. Cumulative Remedies; Power of Attorney. Grantor hereby
irrevocably designates, constitutes and appoints the Administrative Agent (and
all Persons designated by the Administrative Agent in its sole and absolute
discretion) as Grantor's true and lawful attorney-in-fact, and authorizes the
Administrative Agent and any of the Administrative Agent's designees, in
Grantor's or the Administrative Agent's name, to take any action and execute any
instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation, from
and during the continuance of a Default and the giving by the Administrative
Agent of notice to Grantor of the Administrative Agent's intention to enforce
its rights and claims against Grantor, to (i) endorse Grantor's name on all
applications, documents, papers and instruments necessary or desirable for the
Administrative Agent in the use of the Patents or the Licenses, (ii) assign,
pledge, convey or otherwise transfer title in or dispose of the Patents or the
Licenses to anyone on commercially reasonable terms, (iii) grant or issue any
exclusive or nonexclusive license under the Patents or, to the extent permitted,
under the Licenses, to anyone on commercially reasonable terms, and (iv) take
any other actions with respect to the Patents or the Licenses as the
Administrative Agent deems in its own or the Holders of Secured Obligations'
best interest. Grantor hereby ratifies all that such attorney shall lawfully do
or cause to be done by virtue hereof. This power of attorney is coupled with an
interest and shall be irrevocable until all of the Secured Obligations shall
have been paid in full in cash and the Credit Agreement shall have been
terminated. Grantor acknowledges and agrees that this Agreement is not intended
to limit or restrict in any way the rights and remedies of the Administrative
Agent or the other Holders of Secured Obligations under the Security Agreement,
but rather is intended to facilitate the exercise of such rights and remedies.
The Administrative Agent shall have, in addition to all other
rights and remedies given it by the terms of this Agreement, all rights and
remedies allowed by law and the rights and remedies of a secured party under the
Uniform Commercial Code as enacted in any jurisdiction in which the Patents or
the Licenses may be located or deemed located. Upon the occurrence and during
the continuance of a Default and the election by the Administrative Agent to
exercise any
5
33
of its remedies under Section 9-504 or Section 9-505 of the Uniform Commercial
Code with respect to the Patents and Licenses, Grantor agrees to assign, convey
and otherwise transfer title in and to the Patents and the Licenses to the
Administrative Agent or any transferee of the Administrative Agent and to
execute and deliver to the Administrative Agent or any such transferee all such
agreements, documents and instruments as may be necessary, in the Administrative
Agent's sole discretion, to effect such assignment, conveyance and transfer. All
of the Administrative Agent's rights and remedies with respect to the Patents
and the Licenses, whether established hereby, by the Security Agreement, by any
other agreements or by law, shall be cumulative and may be exercised separately
or concurrently. Notwithstanding anything set forth herein to the contrary, it
is hereby expressly agreed that upon the occurrence and during the continuance
of a Default, the Administrative Agent may exercise any of the rights and
remedies provided in this Agreement, the Security Agreement and any of the other
Loan Documents. Grantor agrees that any notification of intended disposition of
any of the Patents and Licenses required by law shall be deemed reasonably and
properly given if given at least ten (10) days before such disposition.
SECTION 16. Successors and Assigns. This Agreement shall be binding
upon Grantor and its successors and assigns, and shall inure to the benefit of
each of the Holders of Secured Obligations and its nominees, successors and
assigns. Grantor's successors and assigns shall include, without limitation, a
receiver, trustee or debtor-in-possession of or for Grantor; provided, however,
that Grantor shall not voluntarily assign or transfer its rights or obligations
hereunder without the Administrative Agent's prior written consent.
SECTION 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION
735 ILCS SECTION 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT
OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS. ANY DISPUTE BETWEEN THE PLEDGOR AND THE
ADMINISTRATIVE AGENT OR ANY LENDER, OR ANY OTHER HOLDER OF SECURED OBLIGATIONS
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT, AND WHETHER ARISING
IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET
SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
SECTION 18. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(a) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (b), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF
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34
THE OTHER LOAN DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR
OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN
CHICAGO, ILLINOIS, BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO,
ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO
THIS SUBSECTION (a) ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
CONSIDERING THE DISPUTE.
(b) OTHER JURISDICTIONS. THE GRANTOR AGREES THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF SECURED OBLIGATIONS SHALL HAVE THE
RIGHT TO PROCEED AGAINST THE GRANTOR OR ITS RESPECTIVE PROPERTY IN A COURT IN
ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER SUCH
GRANTOR OR (2) REALIZE ON THE COLLATERAL GRANTED IN CONNECTION HEREWITH, OR (3)
IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH
PERSON. THE GRANTOR AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS
IN ANY PROCEEDING BROUGHT BY SUCH PERSON IN A LOCATION OUTSIDE OF ILLINOIS TO
REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF SUCH PERSON; PROVIDED THAT THE GRANTOR'S RIGHT TO ASSERT
PERMISSIVE COUNTERCLAIMS IN STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS
SHALL BE PRESERVED. THE GRANTOR WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (b).
(c) VENUE. EACH OF THE LENDERS AND THE GRANTOR IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(d) THE GRANTOR WAIVES PERSONAL SERVICE OF ANY PROCESS UPON IT AND
IRREVOCABLY APPOINTS CT CORPORATION, WITH OFFICES AT 000 XXXXX XXXXXXX XXXXXX,
XXXXXXX, XXXXXXXX 00000, AS THE GRANTOR'S AGENT FOR THE PURPOSE OF ACCEPTING
SERVICE OF PROCESS ISSUED BY ANY COURT. NOTHING HEREIN SHALL IN ANY WAY BE
DEEMED TO LIMIT THE ABILITY OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE
ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.
(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
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35
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED
WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
(f) WAIVER OF BOND. THE GRANTOR WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO REALIZE ON THE COLLATERAL, ENFORCE ANY JUDGMENT OR OTHER COURT
ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE,
TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTION, THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT.
(g) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 18, WITH ITS COUNSEL.
SECTION 19. Notices. All notices or other communications hereunder
shall be given in the manner and to the address of the Parent, in the case of
the Grantor, and to the address of the Administrative Agent, in each case, as
set forth in the Credit Agreement.
SECTION 20. Section Titles. The section titles herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
SECTION 21. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 22. Merger. This Agreement represents the final agreement of
the Grantor with respect to the matters contained herein and may not be
contradicted by evidence of prior or contemporaneous agreements, or subsequent
oral agreements, between the Grantor and the Administrative Agent or any Holder
of Secured Obligations.
SECTION 23. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
METREX RESEARCH CORPORATION
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Representative
ATTEST:
By:
----------------------------
Title:
Accepted and agreed to as of the day and
year first above written.
ABN AMRO BANK N.V.,
as Administrative Agent
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
37
SCHEDULE A
to
Patent Security Agreement
Dated as of December 11, 2000
See attached
38
SCHEDULE B
to
Patent Security Agreement
Dated as of December 11, 2000
See attached
39
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing Patent Security Agreement was acknowledged
before me this 7th day of December, 2000, by Xxxxxxx X. Xxxxxxx, an Authorized
Representative of Metrex Research Corporation, a Wisconsin corporation, on
behalf of such corporation.
--------------------------------
Notary Public
Xxxx County, Illinois
My commission expires: 12/15/02
40
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing Patent Security Agreement was acknowledged
before me this _____ day of December, 2000, by ________________________, a
______________________________ and ______________________________ of
______________________________ of ABN AMRO Bank N.V., on behalf of such
institution.
--------------------------------
Notary Public
Xxxx County, Illinois
My commission expires:
----------
41
PATENT SECURITY AGREEMENT
THIS PATENT SECURITY AGREEMENT ("Agreement") is made as of
December 11, 2000, by and between PINNACLE PRODUCTS, INC., a Wisconsin
corporation ("Grantor"), and ABN AMRO BANK N.V., as contractual representative
(the "Administrative Agent") for its benefit and the benefit of the "Holders of
Secured Obligations" (as such term is defined in the "Credit Agreement" defined
below).
WITNESSETH:
WHEREAS, Sybron Dental Management, Inc., the Subsidiary Swing
Line Borrowers from time to time party thereto, Xxxx Corporation and Ormco
Corporation, as the "Borrowers", Sybron Dental Specialties, Inc., as the
"Parent", the institutions from time to time party thereto as "Lenders", the
Administrative Agent, The Chase Manhattan Bank, as "Syndication Agent and First
Union National Bank, as "Documentation Agent" are parties to that certain Credit
Agreement dated as of November 28, 2000 (as the same may hereafter be modified,
amended, restated or supplemented from time to time, the "Credit Agreement"),
pursuant to which the Lenders may, from time to time, extend credit to
Borrowers; and
WHEREAS, Grantor and the Administrative Agent are parties to
that certain Security Agreement, dated as of December 11, 2000 (as the same may
hereafter be modified, amended, restated or supplemented from time to time, the
"Security Agreement"), pursuant to which Grantor has granted a security interest
in certain of its assets to the Administrative Agent for the benefit of the
Administrative Agent and the Holders of Secured Obligations; and
WHEREAS, the Lenders have required Grantor to execute and
deliver this Agreement (i) in order to secure the prompt and complete payment,
observance and performance of all of the "Secured Obligations" (as defined in
the Credit Agreement) and (ii) as a condition precedent to any extension of
credit to the Borrowers under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor agrees as follows:
SECTION 1. Defined Terms.
(a) Unless otherwise defined herein, each capitalized term used herein
that is defined in the Credit Agreement shall have the meaning specified for
such term in the Credit Agreement. Unless otherwise defined herein or in the
Credit Agreement, each capitalized term used herein that is defined in the
Security Agreement shall have the meaning specified for such term in the
Security Agreement.
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(b) The words "hereof," "herein" and "hereunder" and words of like
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section references are to
this Agreement unless otherwise specified.
(c) All terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural, and vice versa, unless otherwise
specified.
SECTION 2. Incorporation of Premises. The premises set forth above are
incorporated into this Agreement by this reference thereto and are made a part
hereof.
SECTION 3. Incorporation of the Credit Agreement. The Credit Agreement
and the terms and provisions thereof are hereby incorporated herein in their
entirety by this reference thereto.
SECTION 4. Security Interest in Patents. To secure the complete and
timely payment, performance and satisfaction of all of the Secured Obligations,
Grantor hereby grants to the Administrative Agent, for the benefit of the
Holders of Secured Obligations, a security interest in, as and by way of a first
mortgage and security interest having priority over all other security interests
(other than Permitted Existing Liens), with power of sale to the extent
permitted by applicable law, all of Grantor's now owned or existing and
hereafter acquired or arising:
(a) domestic patents and patent applications, and the inventions and
improvements described and claimed therein, including, without limitation, those
patents and patent applications listed on Schedule A attached hereto and made a
part hereof, and (i) the reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, (ii) all income, royalties,
damages and payments now and hereafter due and/or payable under and with respect
thereto, including, without limitation, payments under all licenses entered into
in connection therewith and damages and payments for past or future
infringements thereof, (iii) the right to xxx for past, present and future
infringements thereof, and (iv) all of Grantor's rights corresponding thereto
throughout the world (all of the foregoing patents and applications, together
with the items described in clauses (i)-(iv) in this Section 4(a) are sometimes
hereinafter individually and/or collectively referred to as the "Patents"); and
(b) rights under or interest in any patent license agreements with any
other party, whether Grantor is a licensee or licensor under any such license
agreement, including, without limitation, those patent license agreements listed
on Schedule B attached hereto and made a part hereof, and the right to prepare
for sale and sell any and all Inventory now or hereafter owned by Grantor and
now or hereafter covered by such licenses (all of the foregoing are hereinafter
referred to collectively as the "Licenses").
SECTION 5. Restrictions on Future Agreements. Grantor will not, after
the date hereof, without the Administrative Agent's prior written consent, enter
into any agreement, including, without limitation, any license agreement, which
is inconsistent with this Agreement, and Grantor further
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agrees that it will not take any action, and will use its reasonable commercial
efforts not to permit any action to be taken by others, including, without
limitation, licensees, or fail to take any action, which would in any respect
affect the validity or enforcement of the rights transferred to the
Administrative Agent under this Agreement or the rights associated with the
Patents or Licenses.
SECTION 6. New Patents and Licenses. Grantor represents and warrants
that, from and after the Closing Date, (a) the Patents listed on Schedule A
include all of the domestic patents and patent applications now owned or held by
Grantor, (b) the Licenses listed on Schedule B include all of the patent license
agreements under which Grantor is the licensee or licensor and (c) no liens,
claims or security interests in such Patents and Licenses have been granted by
Grantor to any Person other than the Administrative Agent or the holders of
Permitted Existing Liens. If, prior to the termination of this Agreement,
Grantor shall (i) obtain rights to any new domestic patentable inventions, (ii)
become entitled to the benefit of any domestic patent, patent application,
license or any reissue, division, continuation, renewal, extension or
continuation-in-part of any Patent or any improvement on any Patent or License,
or (iii) enter into any new patent license agreement, the provisions of Section
4 above shall automatically apply thereto. Grantor shall give to the
Administrative Agent written notice of events described in clauses (i), (ii) and
(iii) of the preceding sentence promptly after the occurrence thereof, but in
any event not less frequently than on a quarterly basis. Grantor hereby
authorizes the Administrative Agent to modify this Agreement unilaterally (i) by
amending Schedule A to include any future patents and patent applications, and
by amending Schedule B to include any future domestic patent license agreements,
which are Patents or Licenses under Section 4 above or under this Section 6, and
(ii) by filing, in addition to and not in substitution for this Agreement, a
duplicate original of this Agreement containing on Schedule A or B thereto, as
the case may be, such future patents, patent applications and license
agreements.
SECTION 7. Royalties. Grantor hereby agrees that the use by the
Administrative Agent of the Patents and Licenses as authorized hereunder in
connection with the Administrative Agent's exercise of its rights and remedies
under Section 15 or pursuant to Section 17 of the Security Agreement shall be
coextensive with Grantor's rights thereunder and with respect thereto and
without any liability for royalties or other related charges from the
Administrative Agent or the other Holders of Secured Obligations to Grantor.
SECTION 8. Right to Inspect; Further Assignments and Security
Interests. The Administrative Agent may at all reasonable times (and at any time
when an Unmatured Default or Default exists) have access to, examine, audit,
make copies (at Grantor's expense) and extracts from and inspect Grantor's
premises and examine Grantor's books, records and operations relating to the
Patents and Licenses; provided, that in conducting such inspections and
examinations, the Administrative Agent shall use reasonable efforts not to
disturb unnecessarily the conduct of Grantor's ordinary business operations.
Grantor agrees not to sell or assign its respective interests in, or grant any
license under, the Patents or the Licenses without the prior and express written
consent of the Administrative Agent (which consent, prior to the occurrence and
continuance of a Default, shall not be unreasonably withheld).
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44
SECTION 9. Nature and Continuation of the Administrative Agent's
Security Interest; Termination of the Administrative Agent's Security Interest.
This Agreement is made for collateral security purposes only. This Agreement
shall create a continuing security interest in the Patents and Licenses and
shall terminate only when the Secured Obligations have been paid in full in cash
and the Credit Agreement and the Security Agreement have been terminated. When
this Agreement has terminated, the Administrative Agent shall promptly execute
and deliver to Grantor, at Grantor's expense, all termination statements and
other instruments as may be necessary or proper to terminate the Administrative
Agent's security interest in the Patents and the Licenses, subject to any
disposition thereof which may have been made by the Administrative Agent
pursuant to this Agreement or the Security Agreement.
SECTION 10. Duties of Grantor. Grantor shall have the duty, to the
extent desirable in the normal conduct of Grantor's business and consistent with
the exercise of its reasonable business judgment, to: (i) prosecute diligently
any patent application that is part of the Patents pending as of the date hereof
or hereafter until the termination of this Agreement, and (ii) make application
on unpatented but patentable inventions. Grantor further agrees (i) not to
abandon any Patent or License unless the Grantor reasonably determines that it
is in the best interests to do so and such abandonment will not materially
impair Grantor's ability to maintain its business in the ordinary course, and
(ii) to use its reasonable commercial efforts to maintain in full force and
effect the Patents and the Licenses that are or shall be necessary or
economically desirable in the operation of Grantor's business. Any expenses
incurred in connection with the foregoing shall be borne by Grantor. Neither the
Administrative Agent nor any of the Holders of Secured Obligations shall have
any duty with respect to the Patents and Licenses. Without limiting the
generality of the foregoing, neither the Administrative Agent nor any of the
Holders of Secured Obligations shall be under any obligation to take any steps
necessary to preserve rights in the Patents or Licenses against any other
parties, but the Administrative Agent may do so at its option from and after the
occurrence of a Default, and all expenses incurred in connection therewith shall
be for the sole account of Grantor and shall be added to the Secured Obligations
secured hereby.
SECTION 11. The Administrative Agent's Right to Xxx. From and after the
occurrence of a Default, the Administrative Agent shall have the right, but
shall not be obligated, to bring suit in its own name to enforce the Patents and
the Licenses and, if the Administrative Agent shall commence any such suit,
Grantor shall, at the request of the Administrative Agent, do any and all lawful
acts and execute any and all proper documents required by the Administrative
Agent in aid of such enforcement. Grantor shall, upon demand, promptly reimburse
the Administrative Agent for all costs and expenses incurred by the
Administrative Agent in the exercise of its rights under this Section 11
(including, without limitation, reasonable fees and expenses of attorneys and
paralegals for the Administrative Agent).
SECTION 12. Waivers. The Administrative Agent's failure, at any time or
times hereafter, to require strict performance by Grantor of any provision of
this Agreement shall not waive, affect or diminish any right of the
Administrative Agent thereafter to demand strict compliance and performance
therewith nor shall any course of dealing between Grantor and the Administrative
4
45
Agent have such effect. No single or partial exercise of any right hereunder
shall preclude any other or further exercise thereof or the exercise of any
other right. None of the undertakings, agreements, warranties, covenants and
representations of Grantor contained in this Agreement shall be deemed to have
been suspended or waived by the Administrative Agent unless such suspension or
waiver is in writing signed by an officer of the Administrative Agent and
directed to Grantor specifying such suspension or waiver.
SECTION 13. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but the provisions of this Agreement are severable, and if any
clause or provision shall be held invalid and unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part hereof, in such jurisdiction, and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
SECTION 14. Modification. This Agreement cannot be altered, amended or
modified in any way, except as specifically provided in Section 6 hereof or by a
writing signed by the parties hereto.
SECTION 15. Cumulative Remedies; Power of Attorney. Grantor hereby
irrevocably designates, constitutes and appoints the Administrative Agent (and
all Persons designated by the Administrative Agent in its sole and absolute
discretion) as Grantor's true and lawful attorney-in-fact, and authorizes the
Administrative Agent and any of the Administrative Agent's designees, in
Grantor's or the Administrative Agent's name, to take any action and execute any
instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation, from
and during the continuance of a Default and the giving by the Administrative
Agent of notice to Grantor of the Administrative Agent's intention to enforce
its rights and claims against Grantor, to (i) endorse Grantor's name on all
applications, documents, papers and instruments necessary or desirable for the
Administrative Agent in the use of the Patents or the Licenses, (ii) assign,
pledge, convey or otherwise transfer title in or dispose of the Patents or the
Licenses to anyone on commercially reasonable terms, (iii) grant or issue any
exclusive or nonexclusive license under the Patents or, to the extent permitted,
under the Licenses, to anyone on commercially reasonable terms, and (iv) take
any other actions with respect to the Patents or the Licenses as the
Administrative Agent deems in its own or the Holders of Secured Obligations'
best interest. Grantor hereby ratifies all that such attorney shall lawfully do
or cause to be done by virtue hereof. This power of attorney is coupled with an
interest and shall be irrevocable until all of the Secured Obligations shall
have been paid in full in cash and the Credit Agreement shall have been
terminated. Grantor acknowledges and agrees that this Agreement is not intended
to limit or restrict in any way the rights and remedies of the Administrative
Agent or the other Holders of Secured Obligations under the Security Agreement,
but rather is intended to facilitate the exercise of such rights and remedies.
The Administrative Agent shall have, in addition to all other
rights and remedies given it by the terms of this Agreement, all rights and
remedies allowed by law and the rights and remedies of a secured party under the
Uniform Commercial Code as enacted in any jurisdiction in
5
46
which the Patents or the Licenses may be located or deemed located. Upon the
occurrence and during the continuance of a Default and the election by the
Administrative Agent to exercise any of its remedies under Section 9-504 or
Section 9-505 of the Uniform Commercial Code with respect to the Patents and
Licenses, Grantor agrees to assign, convey and otherwise transfer title in and
to the Patents and the Licenses to the Administrative Agent or any transferee of
the Administrative Agent and to execute and deliver to the Administrative Agent
or any such transferee all such agreements, documents and instruments as may be
necessary, in the Administrative Agent's sole discretion, to effect such
assignment, conveyance and transfer. All of the Administrative Agent's rights
and remedies with respect to the Patents and the Licenses, whether established
hereby, by the Security Agreement, by any other agreements or by law, shall be
cumulative and may be exercised separately or concurrently. Notwithstanding
anything set forth herein to the contrary, it is hereby expressly agreed that
upon the occurrence and during the continuance of a Default, the Administrative
Agent may exercise any of the rights and remedies provided in this Agreement,
the Security Agreement and any of the other Loan Documents. Grantor agrees that
any notification of intended disposition of any of the Patents and Licenses
required by law shall be deemed reasonably and properly given if given at least
ten (10) days before such disposition.
SECTION 16. Successors and Assigns. This Agreement shall be binding
upon Grantor and its successors and assigns, and shall inure to the benefit of
each of the Holders of Secured Obligations and its nominees, successors and
assigns. Grantor's successors and assigns shall include, without limitation, a
receiver, trustee or debtor-in-possession of or for Grantor; provided, however,
that Grantor shall not voluntarily assign or transfer its rights or obligations
hereunder without the Administrative Agent's prior written consent.
SECTION 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION
735 ILCS SECTION 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT
OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS. ANY DISPUTE BETWEEN THE PLEDGOR AND THE
ADMINISTRATIVE AGENT OR ANY LENDER, OR ANY OTHER HOLDER OF SECURED OBLIGATIONS
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT, AND WHETHER ARISING
IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET
SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
SECTION 18. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(a) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (b), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING
6
47
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS,
BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (a) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(b) OTHER JURISDICTIONS. THE GRANTOR AGREES THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF SECURED OBLIGATIONS SHALL HAVE THE
RIGHT TO PROCEED AGAINST THE GRANTOR OR ITS RESPECTIVE PROPERTY IN A COURT IN
ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER SUCH
GRANTOR OR (2) REALIZE ON THE COLLATERAL GRANTED IN CONNECTION HEREWITH, OR (3)
IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH
PERSON. THE GRANTOR AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS
IN ANY PROCEEDING BROUGHT BY SUCH PERSON IN A LOCATION OUTSIDE OF ILLINOIS TO
REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF SUCH PERSON; PROVIDED THAT THE GRANTOR'S RIGHT TO ASSERT
PERMISSIVE COUNTERCLAIMS IN STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS
SHALL BE PRESERVED. THE GRANTOR WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (b).
(c) VENUE. EACH OF THE LENDERS AND THE GRANTOR IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(d) THE GRANTOR WAIVES PERSONAL SERVICE OF ANY PROCESS UPON IT AND
IRREVOCABLY APPOINTS CT CORPORATION, WITH OFFICES AT 000 XXXXX XXXXXXX XXXXXX,
XXXXXXX, XXXXXXXX 00000, AS THE GRANTOR'S AGENT FOR THE PURPOSE OF ACCEPTING
SERVICE OF PROCESS ISSUED BY ANY COURT. NOTHING HEREIN SHALL IN ANY WAY BE
DEEMED TO LIMIT THE ABILITY OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE
ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.
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48
(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(f) WAIVER OF BOND. THE GRANTOR WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO REALIZE ON THE COLLATERAL, ENFORCE ANY JUDGMENT OR OTHER COURT
ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE,
TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTION, THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT.
(g) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 18, WITH ITS COUNSEL.
SECTION 19. Notices. All notices or other communications hereunder
shall be given in the manner and to the address of the Parent, in the case of
the Grantor, and to the address of the Administrative Agent, in each case, as
set forth in the Credit Agreement.
SECTION 20. Section Titles. The section titles herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
SECTION 21. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 22. Merger. This Agreement represents the final agreement of
the Grantor with respect to the matters contained herein and may not be
contradicted by evidence of prior or contemporaneous agreements, or subsequent
oral agreements, between the Grantor and the Administrative Agent or any Holder
of Secured Obligations.
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49
SECTION 23. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
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50
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
PINNACLE PRODUCTS, INC.
By:
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Representative
ATTEST:
By:
--------------------------
Title:
Accepted and agreed to
as of the day and year
first above written.
ABN AMRO BANK N.V.,
as Administrative Agent
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
51
SCHEDULE A
to
Patent Security Agreement
Dated as of December 11, 2000
See attached
52
SCHEDULE B
to
Patent Security Agreement
Dated as of December 11, 2000
See attached
53
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing Patent Security Agreement was acknowledged before me this
7th day of December, 2000, by Xxxxxxx X. Xxxxxxx, an Authorized Representative
of Pinnacle Products, Inc., a Wisconsin corporation, on behalf of such
corporation.
--------------------------------
Notary Public
Xxxx County, Illinois
My commission expires: 12/15/02
54
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
The foregoing Patent Security Agreement was acknowledged
before me this ____ day of December, 2000, by ________________________, a
______________________________ and ____________________________, a
________________________________of ABN AMRO Bank N.V., on behalf of such
institution.
----------------------------------
Notary Public
Xxxx County, Illinois
My commission expires:
------------
