Exihibit 10.30
PATENT SECURITY AGREEMENT
-------------------------
This Patent Security Agreement ("Agreement") is made this 26th day of
December, 2001, by RADNOR DELAWARE, INC., a Delaware corporation having a
mailing address at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx
00000 ("Grantor") and delivered to PNC BANK, NATIONAL ASSOCIATION having a
mailing address at 0000 Xxxxxx Xxxxxx, X0-X000-00-0, Xxxxxxxxxxxx, XX 00000,
Attn: Xxxxxxx Xxxxxx ("Agent") as agent for the Lenders under the Credit
Agreement (as defined below).
BACKGROUND
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A. This Agreement is being executed in connection with that
certain Fourth Amended and Restated Revolving Credit and Security Agreement
among Agent, the financial institutions which are now or which hereafter become
a party thereto as Lenders, the Grantor named therein and the other Borrowers
named as Borrowers therein, of even date herewith (as it may hereafter be
amended, modified, restated or replaced from time to time, the "Credit
Agreement"), under which, inter alia, Grantor is (i) granting Agent, for the
benefit of Lenders, a lien on and security interest in the Patent Collateral
(as defined herein) of Grantor as security for the payment and performance of
all of the Obligations (as defined in the Credit Agreement) of Grantor under
the Credit Agreement, and under which Agent is entitled to foreclose or
otherwise deal with such Patent Collateral under the terms and conditions set
forth therein and (ii) granting Agent a license to use or dispose of
(conditioned upon the occurrence and continuance of an Event of Default) the
Patent Collateral of Grantor. Capitalized terms not defined herein shall have
the meanings given to such terms in the Credit Agreement.
B. Grantor owns (i) the United States Letters Patent and the
inventions described and claimed therein set forth on Schedule A hereto and the
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patents issued by jurisdictions and/or patent authorities other than the United
States and the inventions described and claimed therein set forth on Schedule B
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hereto (hereinafter referred to collectively as the "Patents") and (ii) the
applications for Letters Patent and the inventions described and claimed
therein set forth on Schedule A hereto and any United States Letters Patent
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which may be issued upon any of said applications and the applications to any
jurisdictions and/or patent authorities other than the United Stated and the
inventions described and claimed therein set forth on Schedule B hereto and any
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patents which may be issued upon any of said applications (hereinafter referred
to collectively as the "Applications"). In conjunction with the Patents and
Applications, Grantor may use any reissues, extensions, divisions or
continuations of the Patents or Applications (such reissues, extension,
divisions and continuations being herein referred to collectively as the
"Reissued Patents"); and may be entitled to all future royalties or other fees
paid or payments made to Grantor in respect of the Patents (hereinafter
referred to collectively as the "Royalties"). The Patents, Applications,
Reissued Patents and Royalties are herein referred to collectively as the
"Patent Rights".
C. Grantor and Agent desire to have the security interest of
Agent in such Patent Collateral confirmed by a document identifying same and in
such form that it may be recorded in the United States Patent and Trademark
Office or other appropriate patent office.
NOW THEREFORE, with the foregoing Background hereinafter deemed
incorporated by reference and made a part hereof, and in consideration of the
premises and mutual promises herein contained, the parties hereto, intending to
be legally bound hereby, covenant and agree as follows:
1. In consideration of and pursuant to the terms of the Credit
Agreement and Other Documents, and for other good, valuable and sufficient
consideration, the receipt of which is hereby acknowledged, and to secure the
payment and performance of all of the Obligations of Grantor under the Credit
Agreement, Grantor grants a lien on and security interest to Agent for the
benefit of Lenders in (a) all of the Patent Rights and all proceeds thereof
(including license royalties) and (b) all the right, title, interest, claims
and demands that Grantor has or may have in profits and damages for past and
future infringements of the Patent Rights, and the proceeds thereof, including,
without limitation, license royalties and proceeds of infringement suits (such
rights, interest, claims and demand being herein called the "Claims") (the
Patent Rights and Claims are collectively referred to as the "Patent
Collateral").
2. Grantor hereby covenants and agrees to maintain the Patent
Collateral in full force and effect, provided, however, that Grantor may, in its
reasonable business judgment, abandon any Application or permit any Patent to
become cancelled or expire before its maximum term, and otherwise perform all of
its obligations and undertakings under this Agreement until all of the
Obligations of Grantor are indefeasibly paid and satisfied in full and the
Credit Agreement and the obligations of the Lenders under the Credit Agreement
to make Advances (the "Revolving Credit Commitments") have been terminated.
3. Grantor represents, warrants and covenants to Agent that:
(a) The Patent Collateral is subsisting and has not been
adjudged invalid or unenforceable;
(b) All of the Patents are granted, and all of the
Applications are pending;
(c) Except for any Permitted Encumbrances, Grantor is
the sole and exclusive owner of the entire and unencumbered right, title and
interest in and to the Patent Collateral, and all of the Patent Collateral is
free and clear of any liens, claims, charges, encumbrances and licenses (other
than licenses to affiliates of Grantor) including, without limitation, pledges,
assignments, options, and covenants by Grantor not to xxx third persons, except
as set forth on Schedule C;
(d) Grantor has the full right, power and authority to
enter into this Agreement and perform its terms;
(e) To Grantor's knowledge, Grantor has complied with,
and will continue for the duration of this Agreement to comply with the
requirements set forth in 35 U.S.C.[double sect].1 et seq., and any other
applicable statutes, rules and regulations in connection with its use of the
Patent Collateral; and
(f) Grantor has no notice of any suits or actions
commenced or threatened against it, or notice of claims asserted or threatened
against it, with reference to the Patent Collateral, except as set forth on
Schedule D.
4. Grantor further covenants that:
(a) Until all of the Obligations of Grantor have been
indefeasibly paid and satisfied in full and the Credit Agreement and Revolving
Credit Commitments have been terminated (other than Indemnification Obligations
which survive the Credit Agreement), Grantor will not enter into any agreement
which is inconsistent with the obligations of Grantor under this Agreement, the
Obligations of Grantor under the Credit Agreement or which may restrict or
impair the rights or priorities of Agent hereunder.
(b) If Grantor acquires rights of ownership to any new
Patents or Applications not listed on Schedule "A" attached hereto or
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Schedule "B" hereto, as applicable, ("Additional Patents"), then (i) the
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provisions of this Agreement shall be deemed to automatically apply thereto and
such Additional Patents shall be deemed part of the Patent Collateral, (ii)
Grantor shall give Agent written notice promptly upon its acquisition of any
such Patent or Application or, in the case of an application for patent by
Grantor filed with an assignment to Grantor, on the filing of such application,
and (iii) Grantor shall promptly deliver to Agent with respect to such
Additional Patents a Supplement to Patent Security Agreement in the form
attached hereto as Exhibit II, duly completed and executed by Grantor and
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accompanied by a fully completed Schedule A-1/Schedule B-1 with respect to such
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Additional Patents. Each such Schedule A-1/ Schedule B-1 attached to each such
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Supplement to Patent Security Agreement shall be incorporated and become part
of Schedule A/Schedule B attached hereto and all references to Schedule
--------------------- --------
A/Schedule B contained in this Agreement shall be deemed, for all purposes, to
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also include each such Schedule A-1/Schedule B-1.
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5. So long as this Agreement is in effect and so long as Grantor
has not received notice from Agent that an Event of Default has occurred and is
continuing under the Credit Agreement and that Agent has elected to exercise
its rights hereunder, (i) Grantor shall continue to have the right to use the
Patent Collateral; and (ii) Agent shall have no right to use the Patent
Collateral or issue any exclusive or nonexclusive license with respect
thereto, or assign, pledge or otherwise transfer title in the Patent Collateral
to anyone else.
6. Grantor agrees not to sell, grant any license, grant any
option, assign or further encumber its rights and interest in the Patent
Collateral without the prior written consent of Agent or as may be expressly
permitted under the Credit Agreement.
7. Following the occurrence and during the continuance of an
Event of Default under the Credit Agreement (including without limitation an
Event of Default arising from any failure of Grantor to comply with any
covenant or undertaking under this Agreement), Agent, as the holder of a
security interest under the Uniform Commercial Code, as now or hereafter in
effect in the jurisdiction whose law governs the interpretation of the Credit
Agreement, may take such action permitted under the Credit Agreement and Other
Documents, hereunder or under any law, in its exclusive discretion, to record,
foreclose upon or otherwise exercise its rights against the Patent Collateral
covered hereby. For such purposes, and only upon the occurrence and during the
continuance of an Event of Default, Grantor
hereby authorizes, appoints and empowers Agent, its successors and assigns, and
any officer or agent of Agent as Agent may select, in its exclusive discretion,
as the true and lawful attorney-in-fact of Grantor, with the power to endorse
the name of Grantor on all applications, documents, papers and instruments
necessary for Agent to record its interest in any Patent Collateral or
Additional Patents in the United States Patent and Trademark Office or in the
patent office of any jurisdiction or patent authority other than the United
States, as applicable, including, without limitation, the power to execute on
behalf of Grantor a Supplement to Patent Security Agreement, to use the Patent
Collateral or to grant or issue any exclusive or non-exclusive license under the
Patent Collateral to anyone else, or necessary for Agent to assign, pledge,
convey or otherwise transfer title in or dispose of the Patent Collateral to
anyone else including, without limitation, the power to execute on behalf of
Grantor an assignment of Patent Collateral in the form attached hereto as
Exhibit I. Grantor hereby ratifies all that such attorney shall lawfully do or
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cause to be done by virtue hereof and in accordance with the terms hereof,
except for the gross negligence or willful misconduct of such attorney. This
power of attorney shall be irrevocable for the life of this Agreement, the
Credit Agreement, Other Documents, and until all of the Obligations of Grantor
are indefeasibly paid and satisfied in full and the Credit Agreement and the
Revolving Credit Commitments are terminated.
8. This Agreement shall be subject to the terms, provisions, and
conditions set forth in the Credit Agreement and may not be modified without the
written consent of the parties hereto.
9. All rights and remedies herein granted to Agent shall be in
addition to any rights and remedies granted to Agent under the Credit Agreement
and Other Documents and shall be cumulative. In the event of an inconsistency
between this Agreement and the Credit Agreement, the language of the Credit
Agreement shall control. All obligations of Grantor under this Agreement that
are addressed in the Credit Agreement shall be satisfied by compliance by the
Grantor with the Credit Agreement.
10. Upon full and unconditional satisfaction and performance of
all of the Obligations of Grantor and termination of the Credit Agreement and
the Revolving Credit Commitments, Agent shall execute and deliver to Grantor
all documents reasonably necessary to terminate the security interest of Agent
in the Patent Collateral.
11. Any and all reasonable fees, costs and expenses, of whatever
kind or nature, including attorneys' fees and legal expenses incurred by Agent
in connection with the preparation of this Agreement and all other documents
relating hereto and the consummation of this transaction, the filing or
recording of any documents (including all taxes in connection therewith) in
public offices, the payment or discharge of any taxes, counsel fees,
maintenance fees, encumbrances or costs otherwise incurred in protecting,
maintaining, preserving the Patent Collateral, or in defending or prosecuting
any actions or proceedings arising out of or related to the Patent Collateral,
or in defending, protecting, enforcing or terminating the rights of Agent
hereunder, in each case in accordance with the terms of this Agreement, shall
be borne and paid by Grantor on demand by Agent and until so paid shall be
added to the principal amount of the Obligations of Grantor and shall bear
interest at the highest rate applicable to Revolving Advances from time to time
under the Credit Agreement.
12. Subject to any applicable terms of the Credit Agreement,
Grantor shall have the duty to prosecute diligently any application with
respect to the Patent Collateral pending as of the date of this Agreement or
thereafter, and maintain all rights in the Patent Collateral, provided,
however, that Grantor may, in its reasonable business judgment, abandon any
Application or permit any Patent to become
13. Grantor shall have the right to bring suit in its own name to
enforce the Patent Collateral, in which event Agent may, if Grantor reasonably
deems it necessary, be joined as a nominal party to such suit if Agent shall
have been satisfied, in its sole discretion, that it is not thereby incurring
any risk of liability because of such joinder. Grantor shall promptly, upon
demand, reimburse and indemnify Agent for all damages, costs and expenses,
including reasonable attorneys' fees and costs, incurred by Agent in the
fulfillment of the provisions of this paragraph.
14. If an Event of Default has occurred and is continuing under
the Credit Agreement, Agent may, without any obligation to do so, complete any
obligation of Grantor hereunder, in the name of Grantor or in the name of
Agent, but at the expense of Grantor, and Grantor hereby agrees to reimburse
Agent in full for all costs and expenses, including, without limitation, all
reasonable attorneys' fees, incurred by Agent in protecting, defending and
maintaining the Patent Collateral.
15. No course of dealing between Grantor and Agent, nor any
failure to exercise, nor any delay in exercising, on the part of Agent, any
right, power or privilege hereunder, shall operate as a waiver thereof, and all
of the rights and remedies of Agent with respect to the Patent Collateral,
whether established hereby or by the Credit Agreement and Other Documents, or
by any other future agreements between Grantor and Agent or by law, shall be
cumulative and may be exercised singularly or concurrently.
16. The provisions of this Agreement are severable and the
invalidity or unenforceability of any provision herein shall not affect the
remaining provisions which shall continue unimpaired and in full force and
effect.
17. This Agreement shall inure to the benefit of and be binding
upon the respective successors and permitted assigns of the parties.
18. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT REFERENCE
TO ITS CONFLICTS OF LAWS RULES. Any judicial proceeding brought by or against
any Grantor with respect to this Agreement or any related agreement may be
brought in any court of competent jurisdiction located in the Commonwealth of
Pennsylvania, and, by execution and delivery of this Agreement, Grantor accepts
for itself and in connection with its properties, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts, and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Agreement. Grantor hereby waives personal service of any and all
process upon it and consents that all such service of process may be made by
internationally recognized overnight courier directed to Grantor at its address
set forth in Section 16.6 of the Credit Agreement and service so made shall be
deemed completed one (1) day after the same shall have been so delivered to
such overnight courier. Nothing herein shall affect the right to serve process
in any manner permitted by law or shall limit the right of Agent or any Lender
to bring proceedings against Grantor in the courts of any other jurisdiction.
Grantor waives any objection to jurisdiction and venue of any action instituted
hereunder and shall not assert any defense based on lack of jurisdiction or
venue or based upon forum non conveniens. Any judicial proceeding by Grantor
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against Agent or any Lender involving, directly or indirectly, any matter or
claim in any way arising out of, related to or connected with this Agreement or
any related agreement, shall be brought only in a federal or state court
located in the counties of Philadelphia or Xxxxxxxxxx, Commonwealth of
Pennsylvania.
19. GRANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT
OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL
TO THE DEALINGS OF GRANTOR, LENDERS AND/OR AGENT OR ANY OF THEM WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO
IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE AND GRANTOR HEREBY CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT GRANTOR, AGENT AND/OR LENDERS MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
GRANTOR TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
IN WITNESS WHEREOF, and intending to be legally bound the parties
hereto have executed this Patent Security Agreement, under seal, the day and
year first above written.
RADNOR DELAWARE, INC.
By: /s/ X. Xxxxxxxxx Hastings
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X. Xxxxxxxxx Xxxxxxxx, Sr. VP, Treasurer
Acknowledged and agreed:
PNC BANK, NATIONAL ASSOCIATION
As Agent under the Credit Agreement
By: /s/ Xxxx X. Xxxxxxx, Xx
------------------------------------
Xxxx X. Xxxxxxx, Xx., Vice President
COMPANY ACKNOWLEDGMENT
----------------------
UNITED STATES OF AMERICA :
COMMONWEALTH OF PENNSYLVANIA : SS
COUNTY OF PHILADELPHIA :
On this 26th of December, 2001, before me personally appeared
X. Xxxxxxxxx Hastings, to me known and being duly sworn, deposes and says that
s/he is authorized to sign on behalf of Radnor Delaware, Inc.; that s/he signed
the Agreement thereto pursuant to the authority vested in him by law; that the
within Agreement is the voluntary act of such company; and s/he desires the same
to be recorded as such.
/s/ Xxxxxxx Xxxxxxx
---------------------------------
Notary Public
My Commission Expires:
SCHEDULE A
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United States Patents
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Patent Patent No. Country Filing Date
------ ---------- ------- -----------
(Application No.)
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Method and system for securing 09/478,095 USA
lid to cup
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Drink-Through Cup Lid (09/689,095) USA
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Car Cup-Holder with Flowerpot Des. 446,687 USA
Rim
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Car Cup-Holder with Flared Rim Des. 436,295 USA
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SCHEDULE B
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FOREIGN PATENTS
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Patent Registration No. Country Filing Date
------ ---------------- ------- -----------
EXHIBIT I
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PATENT ASSIGNMENT
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WHEREAS, Radnor Delaware, Inc., a Delaware corporation ("Grantor") is
the registered owner of: (i) the United States Letters Patent and the inventions
described and claimed therein set forth on Schedule A hereto and the patents
issued by jurisdictions or patent authorities other than the United States and
the inventions described and claimed therein set forth on Schedule B hereto
(hereinafter referred to collectively as the "Patents") and (ii) the
applications for Letters Patent and the inventions described and claimed therein
set forth on Schedule A hereto and any United States Letters Patent which may be
issued upon any of said applications and the applications for patents made to
jurisdiction or patent authorities other than the United States and the
inventions described and claimed therein set forth on Schedule B hereto and any
patents which may be issued upon any of said applications (hereinafter referred
to collectively as the "Applications"), which are registered with the United
States Patent and Trademark Office (in the case of Patents and Applications on
Schedule A) or with other appropriate patent offices (in the case of Patents and
Applications on Schedule B).
WHEREAS, in conjunction with the Patents and Applications, Grantor may
use any reissues, extensions, divisions or continuations of the Patents or
Applications (such reissues, extension, divisions and continuations being herein
referred to collectively as the "Reissued Patents"); may be entitled to all
future royalties or other fees paid or payments made to Grantor in respect of
the Patents (hereinafter referred to collectively as the "Royalties"), (the
Patents, Applications and the Reissued Patents and the Royalties being herein
referred to collectively as the "Patent Rights") and may be entitled to profits
and damages for past and future infringements of the Patent Rights (such rights,
interest, claims and demand being herein called the "Claims") (the Patent Rights
and Claims are collectively referred to as the "Patent Collateral").
WHEREAS, _____________________ ("Grantee") having a place of
business at___________________________________ is desirous of acquiring said
Patent Collateral;
NOW THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, and intending to be legally bound hereby, Grantor, its
successors and assigns, does hereby transfer, assign and set over unto Grantee,
its successors, transferees and assigns, all of its present and future right,
title and interest in and to the Patent Collateral and all proceeds thereof .
IN WITNESS WHEREOF, the undersigned has caused this Patent Assignment
to be executed as of the ____ day of _______________, _______.
RADNOR DELAWARE, INC.
By: ___________________________
As Attorney-in-fact
STATE OF :
: S.S.
COUNTY OF :
On this ______ day of ____________, ________ before me, a Notary Public
for the said County and Commonwealth, personally appeared known to me or
satisfactorily proven to me to be attorney-in-fact on behalf of Radnor Delaware,
Inc. ("Grantor") and s/he acknowledged to me that s/he executed the foregoing
Patent Assignment on behalf of Grantor, and as the act and deed of Grantor for
the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
___________________________________
Notary Public
My Commission Expires:
______________________________
POWER OF ATTORNEY
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RADNOR DELAWARE, INC., a Delaware corporation ("Grantor"), hereby
authorizes PNC BANK, NATIONAL ASSOCIATION, its successors and assigns, and any
officer or agent thereof (collectively, "Agent") as agent for the Lenders under
the Fourth Amended and Restated Revolving Credit and Security Agreement among
Agent, the financial institutions which are now or which hereafter become a
party thereto as Lenders, the Grantor named therein and the other Borrowers
named as Borrowers therein, of even date herewith (as it may hereafter be
amended, modified, restated or replaced from time to time, the "Credit
Agreement"), as the true and lawful attorney-in-fact of Grantor, with the
following powers exercisable only following the occurrence and during the
continuance of an Event of Default under the Credit Agreement (including without
limitation an Event of Default arising from any failure of Grantor to comply
with any covenant or undertaking under the Patent Security Agreement referenced
below), with the power to endorse the name of Grantor on all applications,
assignments, documents, papers and instruments necessary for Agent to enforce
and effectuate its rights under a certain Patent Security Agreement between
Grantor and Agent dated the date hereof (as it may hereafter be supplemented,
restated, superseded, amended or replaced, the "Patent Agreement"), including,
without limitation, the power to record its interest in any Patent Collateral or
Additional Patents in the United States Patent and Trademark Office or other
appropriate patent office including, without limitation, the power to execute on
behalf of Grantor a supplement to Patent Security Agreement, to use the Patent
Collateral or to grant or issue any exclusive or non-exclusive license under the
Patent Collateral to anyone else, to assign, pledge, convey or otherwise
transfer title in or dispose of the Patent Collateral to anyone else including,
without limitation, the power to execute on behalf of Grantor an assignment of
Patent Collateral, in each case subject to the terms of the Patent Agreement.
Nothing herein contained shall obligate Agent to use or exercise any rights
granted herein.
This Power of Attorney is given and any action taken pursuant hereto is
intended to be so given or taken pursuant to and subject to the provisions of
the Credit Agreement.
Grantor hereby unconditionally ratifies all that such attorney shall
lawfully do or cause to be done by virtue hereof and in accordance with the
terms of the Patent Agreement, the Credit Agreement and the Other Documents.
This Power of Attorney shall be irrevocable for the life of the Patent
Agreement.
IN WITNESS WHEREOF, the Grantor has executed this Power of Attorney,
under seal, this 26th day of December, 2001.
RADNOR DELAWARE, INC.
By: /s/ X. Xxxxxxxxx Xxxxxxxx, Sr.
-----------------------------------
X. Xxxxxxxxx Hastings, Sr. VP, Treasurer
COMPANY ACKNOWLEDGMENT
----------------------
UNITED STATES OF AMERICA :
COMMONWEALTH OF PENNSYLVANIA : SS
COUNTY OF PHILADELPHIA :
On this 26th of December, 2001 personally appeared X. Xxxxxxxxx
Xxxxxxxx, to me known and being duly sworn, deposes and says that s/he
authorized to sign on behalf the Grantor company described in the foregoing
Power of Attorney; that s/he signed the Power of Attorney pursuant to the
authority vested in her/him by law; that the within Power of Attorney is the
voluntary act of such company; and s/he desires the same to be recorded as such.
/s/ Xxxxxxx Xxxxxxx
---------------------------------
Notary Public
EXHIBIT II
SUPPLEMENT TO PATENT SECURITY AGREEMENT
---------------------------------------
This Supplement to Patent Security Agreement ("Supplement"), dated
__________ ___, ________, is entered into by RADNOR DELAWARE, INC., a Delaware
corporation having a mailing address at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000 ("Grantor") and delivered to PNC BANK, NATIONAL
ASSOCIATION having a mailing address at 0000 Xxxxxx Xxxxxx, X0-X000-00-0,
Xxxxxxxxxxxx, XX 00000, Attn: Xxxxxxx Ferhle ("Agent") as agent for the Lenders
under the Credit Agreement (as defined below).
BACKGROUND
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A. This Supplement is being delivered in connection with that
certain Fourth Amended and Restated Revolving Credit and Security Agreement
among Agent, the financial institutions which are now or which hereafter
become a party thereto as Lenders, the Grantor named therein and the other
Borrowers named as Borrowers therein, dated December 26, 2001 (as it may
hereafter be amended, modified, restated or replaced from time to time, the
"Credit Agreement"), and that certain Patent Security Agreement, dated as of
the date of the Credit Agreement, by and between Grantor and Agent, (as it may
have been and may hereafter be amended, supplemented, restated, replaced, or
otherwise modified from time to time "Patent Security Agreement"). Capitalized
terms used but not defined herein shall have the respective meanings given to
such terms in, or by reference in, the Patent Security Agreement.
B. Pursuant to the Credit Agreement and the Patent Security
Agreement, Grantor granted to Agent for the benefit of Lenders a lien on and
security interest in all of the Patent Collateral of Grantor (as defined
therein).
C. Grantor has acquired certain additional Patents and/or
Applications as set forth on Schedule A-1/Schedule B-1 attached hereto and
-------------------------
made part hereof (collectively, "Additional Patents"). Grantor and Agent
desire to execute this Supplement for the purpose of, inter alia, granting,
----------
ratifying and confirming the lien and security interest of Agent on and in the
Additional Patents, as more fully set forth in the Patent Security Agreement,
and for recording in the United States Patent and Trademark Office or other
appropriate patent office.
NOW THEREFORE, with the foregoing Background hereinafter deemed
incorporated by reference and made a part hereof, and for good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Grantor, intending to be legally bound hereby, covenants and agrees as follows.
1. In consideration of and pursuant to the terms of the Credit
Agreement and Other Documents, and for other good, valuable and sufficient
consideration, the receipt of which is hereby acknowledged, and to secure the
Obligations, Grantor grants a lien and security interest to Agent, for the
benefit of Lenders, in all of its present and future right, title and interest
in and to the Additional Patents, and the right (but not obligation) to xxx
for past, present and future infringements thereof, including, without
limitation, license royalties and proceeds of infringement suits.
2. Grantor acknowledges and confirms that the rights and remedies
of Agent with respect to the security interest in the Additional Patents
granted hereby are more fully set forth in the Credit
Agreement and the Patent Security Agreement, the terms and provisions of which
are incorporated herein by reference. All references to the Patent Security
Agreement contained in the Credit Agreement or Other Documents shall be
deemed, for all purposes, to also refer to and include this Supplement.
3. Schedule A/Schedule B to the Patent Agreement is hereby
---------------------
supplemented by the information contained on Schedule A-1/Schedule B-1
-------------------------
attached hereto. All references to Schedule A/Schedule B contained in the
---------------------
Credit Agreement, Patent Security Agreement or Other Documents shall be
deemed, for all purposes, to also refer to and include Schedule A-1/Schedule
---------------------
B-1.
---
4. Except as expressly amended by this Supplement, all of the
terms, conditions and provisions of the Credit Agreement and Patent Security
Agreement are hereby ratified and continue unchanged and remain in full force
and effect.
5. This Supplement may be executed in any number of 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. Signature by
facsimile shall also bind the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Supplement on
the day and year first above written.
RADNOR DELAWARE, INC.
By:______________________________
Approved and accepted:
PNC BANK, NATIONAL ASSOCIATION
As Agent under the Credit Agreement
By: ___________________________
Name:
Title:
COMPANY ACKNOWLEDGMENT
----------------------
UNITED STATES OF AMERICA :
STATE OF ___________________ : SS
COUNTY OF ________________ :
On this [___ day of ______________, 200_], before me personally
appeared ______________________, and _____________________who being duly sworn,
deposes and says that he/she is authorized to sign on behalf of Radnor Delaware,
Inc, the company described in the foregoing document, that he/she in such
capacity is authorized to execute on behalf of the said company the foregoing
document for the purposes contained therein, and that he/she is the person whose
name and signature is subscribed to the foregoing document.
___________________________________
Notary Public
My commission expires: ____________
My Commission Expires:
