Exhibit 99.18
Date: January 24, 2002
GRANT OF SECURITY INTEREST IN
PATENTS, TRADEMARKS AND LICENSES
THIS GRANT OF SECURITY INTEREST IN PATENTS, TRADEMARKS AND LICENSES (herein the
"Agreement") made as of this 24 day of January, 2002, by WESTWATER INDUSTRIES,
INC., a Delaware corporation, with its principal place of business at ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (herein the "Company"), and THE CIT
GROUP/COMMERCIAL SERVICES, INC., a New York corporation, with offices at ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (herein "CIT").
W I T N E S E T H:
WHEREAS, the Company and CIT are parties to a certain factoring and/or financing
arrangements, pursuant to which CIT may make certain loan and advances to the
Company, all as further set forth in the loan and security documents executed in
connection herewith, dated of even date herewith and as the same may be amended
from time to time (herein collectively, the "Agreement"), which Agreement
provides (i) for CIT to purchase, at its discretion certain accounts receivable
of the Company and/or make certain loans, advances and extensions of credit, all
to or for the benefit and account of the Company, and (ii) for the grant by the
Company to CIT, as collateral security therefor, a security interest in certain
of the Company's assets, including, without limitation, its trademarks,
trademark applications and/or registrations, tradenames, goodwill and licenses,
and, if applicable, any patents, patent applications and/or registrations, all
as more fully set forth herein and in the Agreement;
NOW THEREFORE, in consideration of the premises set forth herein and for other
good and valuable consideration, receipt and sufficiency of which is hereby
acknowledged, the Company agrees as follows:
1. Definitions. Capitalized terms used herein and defined in the Agreement
shall have the meanings set forth therein unless otherwise specifically
defined herein.
2. Grant of Security Interest. To secure the payment of the "Obligations"
(as defined in the Agreement), the Company hereby grants to CIT a
security interest, effective immediately, in all of the Company's
right, title and interest in and to all of the following described
property, whether now owned or hereafter acquired (collectively herein
the "Intellectual Property Collateral"):
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(i) Trademarks, trademark registrations, recordings and/or applications,
tradenames, trade styles, service marks, prints and labels on which any
of the foregoing have or may appear, designs, general intangibles
pertaining to any of the foregoing, including, without limitation, the
trademarks and applications, if any, listed on Schedule B attached
hereto and made a part hereof, and any and all reissues and/or renewals
thereof, and all income, royalties, damages and payments now and
hereafter due and/or payable in connection therewith including, without
limitation, damages and payments for past or future infringements
thereof (all of the foregoing are sometimes hereinafter individually
and/or collectively referred to as the "Trademark Collateral");
(ii) Patents and patent applications and/or registrations together with the
inventions and improvements described and claimed therein including,
without limitation, the patents and applications, if any, listed on
Schedule A, attached hereto and made a part hereof, and any and all
reissues and renewals thereof and all income, royalties, damages and
payments now and hereafter due and/or payable in connection therewith
including, without limitation, damages and payments for past or future
infringements thereof (all of the foregoing are sometimes hereinafter
individually and/or collectively referred to as the "Patent
Collateral");
(iii) Any license agreement in which the Company is or becomes licensed to
use any patents and/or trademarks owned by a third party including,
without limitation, the licenses, if any, listed on Schedule C attached
hereto and made a part hereof (all of the foregoing are sometimes
referred to herein individually and/or collectively as the "License
Collateral");
(iv) The goodwill of the Company's business connected with and symbolized by
the Intellectual Property Collateral;
(v) Any and all of the Company's rights and interests in any of the
foregoing as they relate to the Company's Accounts, Inventory,
Equipment and General Intangibles, or any Collateral bearing any of the
foregoing, including without limitation the right to sell Inventory,
goods and property bearing or covered by any of the foregoing
Intellectual Property; and
(vi) All cash and non-cash proceeds, royalties and income of the foregoing,
including without limitation any amounts obtained pursuant to any
infringement action.
3. CIT' Rights. Upon the occurrence of any Event of Default hereunder, CIT
shall have all the rights and remedies of a secured party under the
Uniform Commercial Code and any other applicable state or federal laws.
CIT will give the Company reasonable notice of the time and place of
any public sale of the Intellectual Property Collateral or the time
after which any private sale of the Intellectual Property Collateral or
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any other intended disposition thereof is to be made. Unless otherwise
provided by law, the requirement of reasonable notice shall be met if
such notice is mailed, postage prepaid to the address of the Company
set forth above at least ten (10) days before the date of such sale or
disposition. In addition to the foregoing and all other rights and
remedies of CIT upon the occurrence of any Event of Default hereunder,
CIT shall thereupon have the immediate right to transfer to itself or
to sell, assign and transfer to any other person all right, title and
interest in and to all or any part of the Intellectual Property
Collateral. A formal irrevocable power of attorney (in the form annexed
hereto) is being executed and delivered by the Company to CIT
concurrently with this agreement to enable such rights to be carried
out. The Company agrees that, in the event CIT exercises its rights
hereunder and/or pursuant to said power of attorney in accordance with
its terms, after written notification of such exercise from CIT to the
Company, the Company shall never thereafter, without the prior written
authorization of the owner or owners of such Intellectual Property
Collateral, use any of such Intellectual Property Collateral. The
condition of the foregoing provision is such that unless and until
there occurs an Event of Default under this agreement, the Company
shall continue to own and use the Intellectual Property Collateral in
the normal course of its business and to enjoy the benefits, royalties
and profits therefrom provided, however, that from and after the
occurrence of an Event of Default such right will, upon the exercise by
CIT of the rights provided by this agreement, be revoked and the right
of the Company to enjoy the uses, benefits, royalties and profits of
said Intellectual Property Collateral will wholly cease, whereupon CIT
or its transferee(s) shall be entitled to all of the Company's right,
title and interest in and to the Intellectual Property Collateral
hereby so assigned. This agreement will not operate to place upon CIT
any duty or responsibility to maintain the Intellectual Property
Collateral.
4. Fees. The Company will pay all filing fees with respect to the security
interest created hereby which CIT may deem necessary or advisable in
order to perfect and maintain the perfection of its security interest
in the Intellectual Property Collateral.
5. Representations and Warranties. The Company represents and warrants:
that the Company lawfully possesses and owns the Intellectual Property
Collateral and that except for the security interest granted hereby,
the Intellectual Property Collateral will be kept free from all liens,
security interests, claims and encumbrances whatsoever; that the
Company has not made or given any prior assignment, transfer or
security interest in the Intellectual Property Collateral or any of the
proceeds thereof; that the Intellectual Property Collateral is and will
continue to be, in all respects, in full force and effect; and that
there are no known infringements of the Intellectual Property
Collateral. The Company agrees not to take any action inconsistent with
the terms and intent hereof, provided that the Company may enter into
licencing agreements in the ordinary course of its business on fair and
reasonable terms, provided further that no Event of Default (as defined
herein below) has occurred and that any such agreement does not
adversely effect CIT' rights and interests hereunder. The Company
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hereby further agrees to provide notice to CIT of any hereafter
acquired Intellectual Property Collateral, provided that any such
Collateral shall be automatically subject to the terms hereof and
provided that the Company shall take any such additional action as CIT
shall reasonably request with respect thereto.
6. Application of Proceeds. The proceeds of any sale, transfer or
disposition of the Intellectual Property Collateral shall be applied
first to all costs and expenses, including, but not limited to,
reasonable attorneys' fees and expenses and court costs, incurred by
CIT in connection with such sale and the exercise of CIT' rights and
remedies hereunder and under the Agreement; next, such proceeds shall
be applied to the payment, in whole or in part, of the Obligations due
CIT in such order as CIT may elect; and the balance, if any, shall be
paid to the Company or as a court of competent jurisdiction may direct.
7. Defense of Claims. The Company will defend at its own cost and expense
any action, claim or proceeding affecting the Intellectual Property
Collateral or the interest of CIT therein. The Company agrees to
reimburse CIT for all costs and expenses incurred by CIT in defending
any such action, claim or proceeding.
8. Rights Cumulative. This Agreement shall be in addition to the Agreement
and shall not be deemed to affect, modify or limit the Agreement or any
rights that CIT has under the Agreement. The Company agrees to execute
and deliver to CIT (at the Company's expense) any further documentation
or papers necessary to carry out the intent or purpose of this
agreement including, but not limited to, financing statements under the
Uniform Commercial Code.
9. Construction and Invalidity. Any provisions hereof contrary to,
prohibited by or invalid under any laws or regulations shall be
inapplicable and deemed omitted here from, but shall not invalidate the
remaining provisions hereof.
10. CHOICE OF LAW. THE COMPANY AGREES THAT THE VALIDITY, INTERPRETATION AND
ENFORCEMENT OF THIS AGREEMENT AND ALL RIGHTS HEREUNDER SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THIS AGREEMENT TOGETHER
WITH THE AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT OF THE COMPANY AND
CIT WITH RESPECT TO THE INTELLECTUAL PROPERTY COLLATERAL, CAN ONLY BE
CHANGED OR MODIFIED IN WRITING AND SHALL BIND AND BENEFIT THE COMPANY,
CIT AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. THE COMPANY AND CIT
EACH HEREBY EXPRESSLY WAIVES ANY RIGHT OF TRIAL BY JURY ON ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING HEREUNDER.
11. Events of Default. Any of the following constitutes an Event of Default
under this agreement:
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(i) The Company fails to perform or observe any agreement, covenant
or condition required under this agreement;
(ii) Any warranty or representation made by Company, in this agreement
shall be or becomes false or misleading in any material respect;
or
(iii) The occurrence of any Event of Default under the Agreement which
is not waived in writing by CIT.
12. Notices. The Company covenants and agrees that, with respect to the
Intellectual Property Collateral, it will give CIT written notice in
the manner provided in the Agreement of:
(i) any claim by a third party that the Company has infringed on the
rights of a third party;
(ii) any suspected infringement by a third party on the rights of the
Company; or
(iii) any Intellectual Property Collateral created, arising or acquired
by the Company after the date hereof.
13. Further Assurances. The Company will take any such action as CIT may
reasonably require to further confirm or protect CIT' rights under this
agreement in the Intellectual Property Collateral. In furtherance
thereof, the Company hereby grants to CIT a power of attorney coupled
with an interest which shall be irrevocable during the term of this
agreement to execute any documentation or take any action in the
Company's behalf required to effectuate the terms, provisions and
conditions of this agreement.
14. Termination. This agreement shall terminate upon termination of the
Agreement and full, final and indefeasible payment in cash of all
Obligations of the Company thereunder. Upon the Company's request, CIT
shall within a reasonable time after any such termination execute and
deliver to the Company (at the Company's expense) such documents and
instruments as are reasonably necessary to evidence such termination
and release of the security interest granted herein on any applicable
public record.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the 24 day of January, 2002.
WESTWATER INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Agreed and Accepted this
24 day of January, 2002
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
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IRREVOCABLE POWER OF ATTORNEY
-----------------------------
WESTWATER INDUSTRIES, INC., with offices at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, (hereinafter referred to as the "Company"), hereby grants to THE CIT
GROUP/COMMERCIAL SERVICES, INC., a New York corporation, with offices at ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as "CIT"),
the exclusive Irrevocable Power of Attorney to transfer to CIT or to any
designee of CIT all Intellectual Property Collateral listed on the Schedules
attached to the Grant of Security Interest in Patents, Trademarks and Licenses
(the "Agreement"), dated as of the date hereof, between the Company and CIT
including, without limitation, all patents, patent applications and/or
registrations, trademarks, trademark applications and/or registrations, and
licenses together with the goodwill of the business connected with or symbolized
by such Intellectual Property Collateral and the Company's entire inventory of
labels and decals bearing any trademarks not affixed to its products, and the
right to operate and control, sell, assign, and transfer the business under
those trademarks under the following terms and conditions:
1. The Power of Attorney granted hereunder shall be effective as of
the date hereof and shall last for as long as any now existing or hereafter
arising indebtedness, liabilities or obligations of the Company to CIT are
outstanding under the Agreement, dated on or about the date hereof, between the
Company and CIT.
2. The Power of Attorney granted herein shall be irrevocable
throughout the duration of its life as specified in Paragraph 1 hereinabove;
3. The Power of Attorney granted herein shall only be exercisable by
CIT after the occurrence of an Event of Default under the Agreement between CIT
and the Company; and
4. CIT shall give the Company ten (10) days prior written notice of
the exercise of this power, and the waiver by CIT of any particular Event of
Default as set forth in Paragraph 3 hereinabove shall have no force or effect
unless in writing and signed by an authorized officer of CIT. Even then such
waiver shall not constitute or be considered a waiver of any other Event of
Default then existing or thereafter arising whether similar or not.
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IN WITNESS WHEREOF, the Company has caused this Power of Attorney to be executed
as of the 24th day of January, 2002.
WESTWATER INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
STATE OF New York)
)
COUNTY OF New York)
On 24th of January, 2002, before me, the undersigned, a notary public
in and for said State, personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇ known to me to be the
Vice President of, Westwater Industries Inc. the corporation that executed the
within instrument, and acknowledged to me that such corporation executed the
within instrument pursuant to its by-laws and a resolution of its board of
directors.
WITNESS my hand and official seal.
/s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Notary Public
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SCHEDULE A TO GRANT OF SECURITY INTEREST IN PATENTS,
TRADEMARKS AND LICENSES
between
WESTWATER INDUSTRIES, INC.
and
THE CIT GROUP/COMMERCIAL SERVICES, INC.
U.S. PATENTS
------------
Title Patent No. Issue Date
----- ---------- ----------
[TO BE PROVIDED BY COMPANY]
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SCHEDULE B TO GRANT OF SECURITY INTEREST IN PATENTS,
TRADEMARKS AND LICENSES
between
WESTWATER INDUSTRIES, INC.
and
THE CIT GROUP/COMMERCIAL SERVICES, INC.
U.S. TRADEMARKS
---------------
Title or ▇▇▇▇ Registration No. Registration Date
------------- ---------------- -----------------
Mill Mountain 75610503 December 23, 1998
Westwater Enterprises 74619680 September 24, 1996
[ADDITIONAL TITLE OR MARKS TO BE PROVIDED BY THE COMPANY]
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SCHEDULE C TO GRANT OF SECURITY INTEREST IN PATENTS,
TRADEMARKS AND LICENSES
between
WESTWATER INDUSTRIES, INC.
and
THE CIT GROUP/COMMERCIAL SERVICES, INC.
U.S. LICENSES
-------------
Name Registration No. Registration Date
---- ---------------- -----------------
[TO BE PROVIDED BY THE COMPANY]
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