EXH10-9
COLLATERAL ASSIGNMENT
AND SECURITY AGREEMENT
THIS AGREEMENT, made as of this 5th day of December, 1990 by and between
AUTOMATED LIGHT TECHNOLOGIES, INC., a Connecticut corporation with an office at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ("Assignor") and the CONNECTICUT
DEVELOPMENT AUTHORITY, a body politic and corporate constituting a public
instrumentality of the State of Connecticut with an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ("Assignee")
WHEREAS, Assignor has executed and delivered to Assignee a promissory note in
the principal amount of $300,000.00 (the "Note"), pursuant to a certain loan
agreement between Assignor and Assignee dated December 5, 1990 (the "Loan
Agreement"): and
WHEREAS, in order to induce Assignee to execute and deliver the Loan Agreement
and to make the loan and as security for the performance by Assignor of its
duties under the Note the Loan Agreement and other documents executed in
connection therewith, Assignor has agreed to assign to Assignee certain patent,
trademark and copyright rights and to grant to Assignee B security interest
therein.
NOW THEREFORE, in consideration of the premises and the agreements contained
herein, Assignor hereby agrees with Assignee as follows:
1. To secure the complete and timely performance of Assignor's
responsibilities under the Note, the Loan Agreement and other documents
delivered in connection therewith, exclusive of the obligations of Assignor
under the Warrant, Assignor hereby grants, assigns and conveys to Assignee its
entire right, title and interest in and to the patents, trademarks, copyrights
and intellectual property listed in Schedule A attached hereto, including
without limitation a11 proceeds thereof, the right to ▇▇▇ for past, present and
future infringements, all rights corresponding thereto throughout the world and
a11 reissues, divisions, continuations, renewals extensions ant
continuations-in-part thereof and all improvements thereon (collectively called
the "Rights") and a11 future patents, trademarks, copyrights and intellectual
property which may be obtained by Assignor and acquired or created by Assignor
after the date hereof ("After Acquired Rights"). For the purposes of this
Agreement the term "intellectual property" shall mean all creations, inventions
and ideas developed, created, acquired or obtained by Assignor during such time
as the Note is outstanding whether or not such items are patentable, patented,
trademarkable, trademarked, copyrightable or copyrighted.
2. Assignor covenants and warrants:
a. the Rights are subsisting and have not been adjudged
invalid or unenforceable, in whole or in part:
b. to the best of Assignor's knowledge, each of the Rights is
valid and enforceable and Assignor has notified Assignee in writing of all prior
acts with respect to the Rights (including public uses and sales) of which it is
aware:
c. Assignor is the sole and exclusive owner of the entire and
unencumbered right, title and interest in and to each of the Rights, free and
clear of any liens, charges and encumbrances, including without limitation
licenses, shop rights and covenants not to ▇▇▇; and
d. Assignor has the unqualified right to enter in this
Agreement and perform its terms and has entered into written agreements with
each of its employees, agents and consultants which will enable it to comply
with the covenants herein contained.
Assignor agrees that, until all of the liabilities under the Note and the Loan
Agreement have been satisfied in full, it will not enter into any agreement
which is inconsistent with Assignor's obligations hereunder without Assignee's
prior written consent, which consent shall not be unreasonably withheld.
3. If, before all liabilities under the Note shall have been satisfied
in full, Assignor shall become entitled to the benefit of any patent, trademark
or copyright application or patent, trademark or copyright for reissue,
division, continuation, renewal, extension or continuation-in-part of any Right
or any After Acquired Right or any improvement on any Right or any After
Acquired Right, Assignor shall give Assignee prompt notice of the same and the
provisions of Paragraph 1 shall apply thereto.
4. If Assignor has not filed a formal application for any of the Rights
or After Acquired Rights within three months of the date hereof or if any such
application lists the inventor, owner, product, trademark or copyright by a name
different from that set forth on Schedule A, then Assignor agrees to execute, if
necessary, a separate agreement for such Right or After Acquired Right at the
time such application is filed.
5. Assignor hereby authorizes Assignee to modify this Agreement by
amending Schedule A to include any reissues, divisions, continuations, renewals,
extensions and continuations-in-part of any Rights, After Acquired Rights and
any improvements thereon.
6. Unless and until there shall have occurred an event of default as
defined in the Loan Agreement or the Note, Assignee hereby grants to Assignor
the exclusive, nontransferable right and license to make, have made, use and
sell the inventions, trademarks and copyrights disclosed and claimed in the
Rights and After Acquired Rights for Assignor's own benefit and account and for
none other. Assignor agrees not to sell or assign its interest in, or grant any
sublicenses under the license granted herein without the prior written consent
of Assignee, which consent shall not be unreasonably withheld.
7. If any event of default under the Loan Agreement, Note or any other
document executed in connection with the loan shall have occurred and not be
cured within any applicable cure period or extended period as permitted by
Assignee, Assignor's license of the Rights and After
Acquired Rights as set forth in Paragraph 6 shall terminate forthwith, and
Assignee 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 Rights and After Acquired Rights may be located and, without limiting the
generality of the foregoing, Assignee may, without demand of performance and
without other notice or demand whatsoever to Assignor, all of which are hereby
expressly waived, and without advertisement, immediately sell, assign, lease or
otherwise dispose of the Rights, the After Acquired Rights or any part thereof,
either at public or private sale acceptable to Assignee, all at Assignee's sole
option and as it, in its sole discretion, may deem advisable. Assignee will give
Assignor reasonable notice of the time and place of any public sale or the time
after which any private sale or other intended disposition will be made. The
requirement of reasonable notice shall be met if such notice is mailed to
Assignor at least five (5) days before the time of the sale or disposition.
After deducting from the proceeds of sale or other disposition of the Rights and
After Acquired Rights all expenses (including all reasonable expenses for
brokers' fees and legal services), Assignee shall apply the residue of such
proceeds towards the payment of the Note. Any remainder of the proceeds after
payment in full of the Note shall be paid over to the Assignor. At any such sale
or other disposition of the Rights and After Acquired Rights, any holder of the
Note or Assignee may, to the extent permitted under applicable law, purchase the
whole or any part of the Rights and After Acquired Rights, free from any right
of redemption on the part of Assignor, which right is hereby waived and
released.
8. At such time as Assignor shall completely satisfy all of the
liabilities under the Note, Assignee shall execute and deliver to Assignor all
deeds, assignments and other instruments as may be necessary or proper to revest
in Assignor full title to the Rights and After Acquired Rights, subject to any
disposition thereof which may have been made by Assignee pursuant hereto.
9. Any and all fees, costs and expenses, of whatever kind and nature,
including reasonable attorneys' fees and legal expenses, incurred by Assignee in
connection with the preparation of this Agreement ant all other documents
relating hereto and the consumation of this transaction, the filing or recording
of any documents (including a11 taxes in connection therewith) in public
offices, the payment or discharge of any taxes, counsel fees, maintenance fees,
encumbrances or otherwise protecting, maintaining, preserving the Rights and
After Acquired Rights or in defending or prosecuting any actions or proceedings
arising out of or related to the Rights and After Acquired Rights, shall be
borne and paid by Assignor on demand by Assignee and until so paid shall be
added to the principal amount of the Note and shall bear interest at the rate
set forth in the Note.
10. Assignor shall have the duty, through counsel reasonably acceptable
to Assignee, to prosecute diligently any application of the Rights and After
Acquired Rights pending as of the date hereof or thereafter until the Note has
been paid in full, to make application on unpatented but patentable inventions
and to preserve and maintain all rights in patent, trademark and copyright
applications and patents, trademarks and copyrights of the Rights and After
Acquired Rights. Any expenses incurred in connection with such an application
and/or preservation or maintenance of the Rights and After Acquired Rights shall
be borne by Assignor. The Assignor shall not abandon any right to any patent,
trademark or copyright or intellectual property, any patent, trademark,
copyright
application or to file a patent, trademark or copyright application or
extension, division, continuation, renewal, reissue, continuation-in-part or
improvement thereof without the consent of Assignee, which consent shall not be
unreasonably withheld.
11. Assignee shall have the right but shall in no way be obligated to
bring suit in its own name to enforce the Rights, After Acquired Rights and any
license thereunder, in which event Assignor shall at the request of Assignee do
any and all lawful acts and execute any and all proper documents required by
Assignee in aid of such enforcement. Assignor shall promptly, upon demand,
reimburse and indemnify Assignee for all costs and expenses incurred by Assignee
in the exercise of its rights hereunder. In the event that Assignee does not
exercise its right to bring suit to enforce the Rights, After Acquired Rights
and any license thereunder, then Assignor shall have the duty, through counsel
reasonably acceptable to Assignee, to bring suit to enforce the Rights, After
Acquired Rights and any license thereunder.
12. No course of dealing between Assignor and Assignee, nor any failure
to exercise, nor any delay in exercising, on the part of Assignee, any right,
power or privilege hereunder or under the Loan Agreement or Note shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or thereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
13. All of Assignee's rights and remedies with respect to the Rights
and After Acquired Rights, whether established hereby or by the Loan Agreement
or Note, or by any other agreements or by law shall be cumulative and may be
exercised singularly or concurrently.
14. The provisions of this Agreement are severable, and if any clause
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 thereof, 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.
15. This Agreement is subject to modification only by a writing signed
by the parties, except as provided in Paragraph 4.
16. The benefits and burdens of this Agreement shall inure to the
benefit of and be binding upon the respective successors and permitted assigns
of the parties.
17. This Agreement shall be governed by and construed in accordance
with the laws of the State of Connecticut. \
IN WITNESS WHEREOF, the parties hereunto set their hands and seals as of the a
5th day of December, 1990.
AUTOMATED LIGHT TECHNOLOGIES, INC.
By:____/s/________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇
Its President
Duly Authorized
CONNECTICUT DEVELOPMENT AUTHORITY
By:___/s/_________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its Loan Officer
Duly authorized
STATE OF CONNECTICUT )
) ss. at Hartford
COUNTY OF HARTFORD )
The foregoing was acknowledged before me, the undersigned officer, this 5th day
of December, 1990 by ▇▇▇▇ ▇. ▇▇▇▇▇▇, President of Automated Light Technologies,
Inc., a corporation, on behalf of the corporation.
_____/s_____________________
Commissioner of the Superior
Court
STATE OF CONNECTICUT)
) ss. at Hartford
COUNTY OF HARTFORD )
The foregoing was acknowledged before me, the undersigned officer, this 5th day
of December, 1990 by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Loan Officer of the Connecticut
Development Authority, a corporation, on behalf of the corporation.
_____/s_____________________
Commissioner of the Superior
Court
SCHEDULE A
I. PATENTS
A. CABLE MONITORING SYSTEM PATENTS
l. Original Patents
a. U.S. Patent Number 4,480,251
b. U.K. Patent Number GB 2082406B
2. Cable Failure Detection System
a. U.S. Patent Application Number 512,318 - Filed 4/20/90
b. U.S. Patent Application Number 339,967 - Filed 4/19/89
c. U.S. Patent Application Number 175,251 - Filed 3/30/88
d. Filings of Patents of Confirmation
B. LONG RANGE FAULT LOCATOR PATENT FILINGS
1. Resistive Fault Location Means & Device for Use on Electrical
Cables
a. U. S. Patent Application Number 07/293,288 - Filed
1/4/89
b. European Patent Application EP 0372191 A2
c. British Preliminary Patent Application
d. Japanese Patent Application Number PA-05440
II. TRADEMARKS
A. "FLOODHOUND" - Registration Number 1,485,151