EXHIBIT 10-07
EXECUTION COPY
PATENT SECURITY AGREEMENT
THIS PATENT SECURITY AGREEMENT ("Agreement") is made as of February
__, 1998, by and between [_______________], a __________ corporation
("Grantor"), and The First National Bank of Chicago, with its chief executive
office at One First National Plaza, Chicago, Illinois 60670, as the contractual
representative (the "Agent") for the "Holders of Secured Obligations" (as such
term is defined in the "Credit Agreement" defined below).
W I T N E S S E T H:
WHEREAS, IFR Systems, Inc., a Delaware corporation (the "Borrower"),
the Agent and certain financial institutions (the "Lenders") are parties to that
certain Credit Agreement of even date herewith (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 Borrower; and
WHEREAS, Grantor and the Agent are parties to that certain Security
Agreement of even date herewith (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
Agent for the benefit of the 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
Borrower 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:
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.
(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.
2. INCORPORATION OF PREMISES. The premises set forth above are
incorporated into this Agreement by this reference thereto and are made a part
hereof.
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.
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 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, with power
of sale to the extent permitted by applicable law, all of Grantor's now owned or
existing and hereafter acquired or arising:
(i) 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 (a) the reissues, divisions, continuations,
renewals, extensions and continuations-in-part thereof, (b) 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, (c) the right to sue for past,
present and future infringements thereof, and (d) all of Grantor's rights
corresponding thereto throughout the world (all of the foregoing patents
and applications, together with the items described in CLAUSES (a)-(d) in
this PARAGRAPH 4(i) are sometimes hereinafter individually and/or
collectively referred to as the "Patents"); and
(ii) 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"). Notwithstanding the foregoing provisions of this PARAGRAPH 4,
the Licenses shall not include any license agreement in effect as of the
date hereof which by its terms prohibits the grant of the security
contemplated by this Agreement; provided, however, that upon the
termination of such prohibitions for any reason whatsoever, the provisions
of this PARAGRAPH 4 shall be deemed to apply thereto automatically.
5. RESTRICTIONS ON FUTURE AGREEMENTS. Grantor will not, without the
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
best 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 Agent under
this Agreement or the rights associated with the Patents or Licenses.
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 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 Agent. If,
prior to the termination of this Agreement, Grantor shall (i) obtain rights to
any new patentable inventions, (ii) become entitled to the benefit of any
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 PARAGRAPH 4 above shall automatically apply thereto. Grantor
shall give to the 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 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 patent license agreements, which are
Patents or Licenses under PARAGRAPH 4 above or under this PARAGRAPH 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.
7. ROYALTIES. Grantor hereby agrees that the use by the Agent of
the Patents and Licenses as authorized hereunder in connection with the Agent's
exercise of its rights and remedies under PARAGRAPH 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 Agent or the other Holders of Secured Obligations to
Grantor.
8. RIGHT TO INSPECT; FURTHER ASSIGNMENTS AND SECURITY INTERESTS.
The 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 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 Agent.
9. NATURE AND CONTINUATION OF THE AGENT'S SECURITY INTEREST;
TERMINATION OF THE 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 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 Agent's security interest in the Patents
and the Licenses, subject to any disposition thereof which may have been made by
the Agent pursuant to this Agreement or the Security Agreement.
10. DUTIES OF GRANTOR. Grantor shall have the duty, to the extent
desirable in the normal conduct of Grantor's business, 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 without the prior written consent of the
Agent, and (ii) to use its best 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 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 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 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.
11. THE AGENT'S RIGHT TO SUE. From and after the occurrence of a
Default, the 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 Agent
shall commence any such suit, Grantor shall, at the request of the Agent, do any
and all lawful acts and execute any and all proper documents required by the
Agent in aid of such enforcement. Grantor shall, upon demand, promptly
reimburse the Agent for all costs and expenses incurred by the Agent in the
exercise of its rights under this PARAGRAPH 11 (including, without limitation,
reasonable fees and expenses of attorneys and paralegals for the Agent).
12. WAIVERS. The 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 Agent thereafter to demand strict
compliance and performance therewith nor shall any course of dealing between
Grantor and the 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 Agent unless such suspension or
waiver is in writing signed by an officer of the Agent and directed to Grantor
specifying such suspension or waiver.
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.
14. MODIFICATION. This Agreement cannot be altered, amended or
modified in any way, except as specifically provided in PARAGRAPH 6 hereof or by
a writing signed by the parties hereto.
15. CUMULATIVE REMEDIES; POWER OF ATTORNEY. Grantor hereby
irrevocably designates, constitutes and appoints the Agent (and all Persons
designated by the Agent in its sole and absolute discretion) as Grantor's true
and lawful attorney-in-fact, and authorizes the Agent and any of the Agent's
designees, in Grantor's or the Agent's name, to take any action and execute any
instrument which the Agent may deem necessary or advisable to accomplish the
purposes of this Agreement, including, without limitation, from and after the
occurrence of a Default and the giving by the Agent of notice to Grantor of the
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 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 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 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 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 of a Default and the election by
the 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 Agent or any transferee of the Agent and to execute and
deliver to the Agent or any such transferee all such agreements, documents and
instruments as may be necessary, in the Agent's sole discretion, to effect such
assignment, conveyance and transfer. All of the 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
of a Default, the 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; PROVIDED,
HOWEVER, that the Agent may give any shorter notice that is commercially
reasonable under the circumstances.
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 Agent's prior written consent.
17. GOVERNING LAW. This Agreement shall be construed and enforced
and the rights and duties of the parties shall be governed by in all respects in
accordance with the internal laws and decisions of the State of Illinois.
18. NOTICES. All notices or other communications hereunder shall be
given in the manner and to the address of the Borrower, in the case of the
Grantor, and to the address of the Agent, in each case, as set forth in the
Credit Agreement.
19. 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.
20. 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.
21. 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 Agent or any Holder of Secured
Obligations.
22. 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.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
[ ]
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By:
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Name:
Title:
ATTEST:
By:
--------------------------------
Name:
Title:
Accepted and agreed to as
of the day and year first above written.
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
By:
------------------------------------------
Name:
Title:
Schedule A
to
Patent Security Agreement
Dated as of February ___, 1998
PATENTS
None, except:
Patent No. Issue Date Subject
- -----------------------------------------------
PATENT APPLICATIONS
None, except:
Serial No. Filing Date Subject
- -----------------------------------------------
Schedule B
to
Patent Security Agreement
Dated as of February ___, 1998
LICENSE AGREEMENTS
None, except:
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
The foregoing Patent Security Agreement was acknowledged before me
this ___ day of February, 1998, by ___________________, a ____________ of
[________________], a __________ corporation, on behalf of such corporation.
-----------------------------
Notary Public
Cook County, Illinois
My commission expires:
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STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
The foregoing Patent Security Agreement was acknowledged before me
this ___ day of February, 1998, by __________________, a _________________ of
The First National Bank of Chicago, a national banking association, on behalf of
such association.
-----------------------------
Notary Public
Cook County, Illinois
My commission expires:
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