1
EXHIBIT 4.13
AMENDED AND RESTATED CONTINUING
SECURITY INTEREST AND CONDITIONAL ASSIGNMENT
OF PATIENTS, TRADEMARKS AND LICENSES
This AMENDED AND RESTATED CONTINUING SECURITY INTEREST AND
CONDITIONAL ASSIGNMENT OF PATENTS, TRADEMARKS, COPYRIGHTS AND LICENSES
("Agreement") is dated as of June 7, 1996 between PROTECTION ONE ALARM
MONITORING, INC., a Delaware corporation ("Borrower") and ▇▇▇▇▇▇ FINANCIAL,
INC., a Delaware corporation, individually and as agent ("Agent") for the other
Lenders under that certain Amended and Restated Credit Agreement dated as of the
date hereof among Assignor, Agent and the other Lenders named therein (as the
same may hereafter be amended, supplemented or otherwise modified from time to
time, the "Credit Agreement").
W I T N E S S E T H:
WHEREAS, it is a condition to the Credit Agreement that
Assignor shall have executed and delivered this Agreement; and
WHEREAS, that certain Amended and Restated Security Agreement
of even date herewith among Agent and Assignor (as the saw may hereafter be
amended, supplemented or otherwise modified from time to time, the "Security
Agreement") grants to Agent a Lien (as hereinafter defined) on Assignor's
assets, including, without limitation, all of Assignor's Intellectual Property
(as hereinafter defined);
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, Assignor agrees as follows:
1. Incorporation of Security Agreement; Credit Agreement
Definitions. The Security Agreement and the terms and provisions thereof are
hereby incorporated herein in their entirety by this reference thereto.
Capitalized terms used but not otherwise defined herein or in the Security
Agreement shall have the meanings ascribed thereto in the Credit Agreement.
2. Grant of Lien. To secure the complete and timely payment
and satisfaction of the Secured Obligations, Assignor hereby grants to Agent,
for the benefit of the Lenders, a continuing Lien on Assignor's entire right,
title and interest in and to all of its now owned or existing and hereafter
acquired or arising:
(a) United States, Canada and all other foreign
Patents, including, without limitation, the Patents listed on Schedule
A;
(b) United States, Canada and WI other foreign
Copyrights, including, without limitation, the Copyrights listed on
Schedule B;
(c) United States, Canada and all other foreign
Trademarks, including, without limitation, the Trademarks listed on
Schedule C;
(d) United States, Canada and all other foreign
Patent Licenses, Copyright Licenses, Trademark Licenses and all license
agreements in which Assignor is or becomes licensed to use a patent,
copyright, trademark or the knowhow of any other Person,
2
including, without limitation, the Patent Licenses, Copyright Licenses,
Trademark Licenses and all other license agreements listed on Schedule
D (collectively, the "Licenses"); and
(e) the goodwill of Assignor's business connected
with the use of and symbolized by the Trademarks and Trademark
Licenses.
3. Assignment of Patents. In addition to all other rights
granted to Agent under the Credit Agreement, the Security Agreement and this
Agreement, as collateral security only for the payment, performance and
observance of the Secured Obligations, Assignor hereby sells, assigns, transfers
and sets over to Agent, effective upon the occurrence and during the continuance
of any Event of Default, Assignor's entire right, title and interest in and to
all Patents, including, without limitation, any Patents that may pertain to any
other Collateral.
4. Assignment of Copyrights. In addition to all other rights
granted to Agent under the Credit Agreement, the Security Agreement and this
Agreement, as collateral security only for the payment, performance and
observance of the Secured Obligations, Assignor hereby sells, assigns, transfers
and sets over to Agent, effective upon the occurrence and during the continuance
of any Event of Default, Assignor's entire right, title and interest in and to
all Copyrights, including, without limitation, any Copyrights that may pertain
to any other Collateral.
5. Assignment of Trademarks and Goodwill. In addition to all
other rights granted to Agent under the Credit Agreement, the Security Agreement
and this Agreement, as collateral security only for the payment, performance and
observance of the Secured Obligations, Assignor hereby grants to Agent,
effective upon the occurrence and during the continuance of any Event of
Default, Assignor's entire right, title and interest in and to all Trademarks
and the goodwill of Assignor's business connected with the use of and symbolized
by the Trademarks, including, without limitation, any Trademarks or goodwill
that may pertain to any other Collateral.
6. Assignment of Licenses. In addition to all other rights
granted to Agent under the Credit Agreement, the Security Agreement and this
Agreement, as collateral security only for the payment, performance and
observance of the Secured Obligations, Assignor hereby sells, assigns, transfers
and sets over to Agent, effective upon the and during the continuance of any
Event of Default, Assignor's entire right, title and interest in, to and under
all Licenses (other than Licenses which terminate or are terminable upon such
assignment) and any license agreement with any other party, whether now existing
or hereafter entered into and whether Assignor is a licensor or licensee under
such license agreement, and the right to prepare for sale, sell and advertise
for sale, all Collateral now or hereafter owned by Assignor and now or hereafter
covered by such License and Assignor agrees that it will not take any action, or
permit any action to be taken by others subject to its control, including
licensees, or fall to take any action, which could affect the validity or
enforcement of the rights transferred to Agent under this Agreement, which
rights are used or usable in the conduct of Assignor's business. Assignor hereby
covenants that it will promptly notify Agent if any Patent, Copyright or
Trademark shall at any time hereafter become subject to any such license
agreement and that it will promptly provide Agent with full identification
thereof and with such further documentation as Agent may reasonably request to
accomplish or assure the accomplishment of the purpose of this Section 6.
7. Royalties; Term. Assignor hereby agrees that the use by
Agent of all Patents, Copyrights, Trademarks and Licenses shall be worldwide, to
the extent of Assignor's rights and without any liability for royalties or other
related charges from Agent to Assignor. The term of the grant of the Lien
granted herein shall extend until the expiration of each of the respective
Patents,
2
3
Copyrights, Trademarks and Licenses assigned hereunder, or until Assignors
obligations under the Credit Agreement have been finally paid in full and the
Credit Agreement and the Security Agreement terminate, whichever first occurs.
8. Reports of Applications. The United States, Canada and all
other foreign Patents, Copyrights, Trademarks and Licenses constitute all of the
material patents, copyrights, trademarks, applications and licenses now owned by
or licensed to Assignor. Assignor shall provide Agent on a quarterly basis with
a list of all new applications for United States and foreign letters patent,
copyrights and registered trademarks and licenses, which new applications,
patents, copyrights, trademarks and licenses shall all be subject to the terms
and conditions of the Security Agreement and this Agreement.
9. Effect on Credit Agreement Cumulative Remedies. Assignor
acknowledges and agrees that this Agreement is not intended to limit or restrict
in any way the rights and remedies of Agent under the Credit Agreement or the
Security Agreement but rather is intended to supplement and facilitate the
exercise of such rights and remedies. All of the rights and remedies of Agent
with respect to the Patents, Copyrights, Trademarks and Licenses, whether
established hereby, by the Credit Agreement or the Security Agreement, by any
other agreements, or by law, shall be cumulative and may be exercised singularly
or concurrently. NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN OR IN ANY OTHER
DOCUMENT TO THE CONTRARY, AGENT SHALL NOT HAVE THE RIGHT TO USE AND ENFORCE THE
PATENTS, COPYRIGHTS, TRADEMARKS AND LICENSES UNLESS AND UNTIL THE OCCURRENCE OF
AN EVENT OF DEFAULT THE CREDIT AGREEMENT; PROVIDED, THAT AGENT SHALL HAVE THE
RIGHT HEREUNDER PRIOR TO THE OCCURRENCE OF A DEFAULT, TO EXERCISE ANY RIGHTS OF
ASSIGNOR UNDER OR IN RESPECT OF ANY OF THE LICENSES TO RENEW OR EXTEND THE SAME.
10. Binding Effect; Benefits. This Assignment shall be binding
upon Assignor and its respective successors and assigns, and shall inure to the
benefit of Agent and its respective successors and assigns.
11. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS.
12. Severability. The invalidity, illegality or
unenforceability of any provision in or obligation under this Agreement, the
Security Agreement or the Credit Agreement shall not affect or impair the
validity, legality or enforceability of the remaining provisions or obligations
under this Agreement.
13. Counterparts. This Agreement and any amendments, waivers,
consents or supplements may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all of which
counterparts together shall constitute but one and the same instrument. This
Agreement shall become effective upon the execution of a counterpart hereof by
each of the parties hereto.
14. Effect of Amendment and Restatement. This Agreement
amends, restates and supersedes the Continuing Security Interest and Conditional
Assignment of Patents, Trademarks, Copyrights and Licenses dated November 3,
1993 between Assignor and Agent (the "Existing Agreement"); provided, that (i)
the liens and security interests in favor of Agent for the benefit of Lenders
securing payment of the Obligations are in all respects continuing and in full
force and
3
4
effect with respect to all Secured Obligations and (ii) all references
in the other Loan Documents to the Existing Agreement shall be deemed to refer
without further amendment to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their duly authorized
representatives as of the date first written above.
PROTECTION ONE ALARM MONITORING, INC.,
a Delaware corporation
By: ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: Executive Vice President
-----------------------------------
Accepted and Agreed to:
▇▇▇▇▇▇ FINANCIAL, INC.,
a Delaware corporation,
individually and as
Agent for the Lenders
By: ▇▇▇▇▇▇▇ CANON
--------------------------------
Title: Vice President
--------------------------------
5
List of Schedules
Schedule A - United States, Canada and Other Foreign Patents
Schedule B - United States, Canada and Other Foreign Copyrights
Schedule C - United States, Canada and Other Foreign ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇ - ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ and Other Foreign Patents Licenses,
Copyrights, Licenses and Trademark Licenses