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Exhibit 10.6
PATENT COLLATERAL ASSIGNMENT
This
Agreement is made on this 8th day of November, 2007, by and
among Nature Vision, Inc., a Minnesota corporation, and Nature
Vision Operating, Inc., a Minnesota corporation, each having a
mailing address at 1480 Northern Pacific Road, Brainerd,
MN 56401 (individually and collectively the
“Assignor”) and M&I Business Credit, LLC, a
Minnesota limited liability company, having a mailing address
at Suite 450, 651 Nicollet Mall, Minneapolis, Minnesota 55402
(“Lender”).
Background . Assignor has executed and delivered to
Lender a Credit and Security Agreement dated as of the date hereof
whereby Lender may make loans to Assignor (said Credit and Security
Agreement as amended from time to time is referred to herein as the
“Credit Agreement”). In order to induce the
Lender to execute and deliver the Credit Agreement, Assignor has
agreed to assign to Lender certain Patent rights.
NOW,
THEREFORE, in consideration of the premises, each Assignor
hereby agrees with Lender as follows:
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1.
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To
secure the complete and timely satisfaction of all Obligations (as
defined in the Credit Agreement), Assignor hereby grants, assigns,
and conveys to Lender all of its right, title and interest, if any,
in and to the Patent applications and Patents listed in Schedule A
hereto, including without limitation all proceeds thereof (such as,
by way of example, license royalties and proceeds of infringement
suits), the right to sue for past, present and future
infringements, all rights corresponding thereto throughout the
world and all reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof (collectively called
the “Patents”).
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2. Assignor
covenants and warrants that:
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a.
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The
Patents are subsisting and have not been adjudged invalid or
unenforceable, in whole or in part;
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b.
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To
the best of Assignor’s knowledge, each of the Patents is
valid and enforceable and Assignor has notified Lender in writing
of all prior art (including public uses and sales) of which it is
aware;
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c.
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Assignor
is the sole and exclusive owner of the entire and unencumbered
right, title and interest in and to each of the Patents, free and
clear of any liens, charges and encumbrances, including without
limitation pledges, assignments, licenses, shop rights and
covenants by Assignor not to sue third persons; and
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d.
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Assignor
has the unqualified right to enter into this Agreement and perform
its terms and has entered and will enter into written agreements
with each of its present and future employees, agents and
consultants which will enable it to comply with the covenants
herein contained.
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3.
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Assignor
agrees that, until all of the Obligations (as defined in the Credit
Agreement) shall have been satisfied in full, it will not enter
into any agreement (for example, a license agreement) which is
inconsistent with Assignor’s obligations under this
Agreement, without Lender’s prior written
consent.
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4.
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If,
before the Obligations shall have been satisfied in full, Assignor
shall obtain rights to any new Patentable inventions, or become
entitled to the benefit of any Patent application or
Patent for any reissue, division, continuation, renewal,
extension, or continuation-in-part of any Patent or any improvement
on any Patent, the provisions of paragraph 1 shall automatically
apply thereto and Assignor shall give to Lender prompt notice
thereof in writing hereof.
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5.
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Assignor
authorizes Lender to modify this Agreement by amending Schedule A
to include any future Patents and Patent applications which are
Patents under paragraph 1 or paragraph 4 hereof.
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6.
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Unless
and until there shall have occurred and be continuing an Event of
Default (as defined in the Credit Agreement), Lender hereby grants
to Assignor the exclusive, nontransferable right and license under
the Patents to make, have made for it, use and sell the inventions
disclosed and claimed in the Patents for Assignor’s own
benefit and account and for none other. Assignor agrees
not to sell or assign its interest in, or grant any sublicense
under, the license granted to Assignor in this paragraph 6, without
the prior written consent of Lender.
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7.
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If
any Event of Default shall have occurred and be continuing,
Assignor’s license under the Patents as set forth in
paragraph 6, shall terminate forthwith, and the Lender shall have,
in addition to all other rights and remedies given it by this
Agreement, those 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 may be located and, without
limiting the generality of the foregoing, the Lender may
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