Exhibit 10.50
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TRADEMARK COLLATERAL ASSIGNMENT
AND SECURITY AGREEMENT
Dated as of September 22, 1999
between
COMMONWEALTH SCIENTIFIC CORPORATION
and
MANUFACTURERS AND TRADERS TRUST COMPANY
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This TRADEMARK COLLATERAL SECURITY AND PLEDGE AGREEMENT dated as of
September 22, 1999, between COMMONWEALTH SCIENTIFIC CORPORATION, a Virginia
corporation (the "Assignor"), having its principal place of business at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and MANUFACTURERS AND TRADERS
TRUST COMPANY, having an ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇&▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the
"Bank").
WHEREAS, CVC Products, Inc. (the "Borrower") and the Bank are parties to a
Loan Agreement, dated as of March 31, 1998, (as amended and in effect from time
to time, the "Loan Agreement"); and
WHEREAS, the Borrower and the Bank have entered into an Amendment to Loan
Agreement dated the date hereof (the "Amendment"); and
WHEREAS, it is a condition precedent to the Bank making any loans or
otherwise extending credit to the Borrower under the Loan Agreement that the
Assignor execute and deliver to the Bank this Trademark Agreement; and
WHEREAS, the Assignor has executed and delivered to the Bank a General
Security Agreement, dated as of September 3, 1998 (the "Security Agreement"),
pursuant to which the Assignor granted to the Bank a first priority perfected
security interest in all of the Assignor's personal property and fixture assets,
including, without limitation, the trademarks, service marks, trademark and
service ▇▇▇▇ registrations and trademark and service ▇▇▇▇ registration
applications listed on Schedule A attached hereto, all to secure the payment and
performance of all the indebtedness of the Borrower and Assignor to the Bank;
and
WHEREAS, this Trademark Agreement (defined below) is supplemental to the
provisions contained in the Security Agreement;
NOW, THEREFORE, in consideration of the premises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS.
Capitalized terms used herein and not otherwise defined herein shall have
the respective meanings provided therefor in the Loan Agreement. In addition,
the following terms shall have the meanings set forth in this Section 1 or
elsewhere in this Trademark Agreement referred to below:
Assignor means Commonwealth Scientific Corporation, a Virginia
corporation.
Associated Goodwill means all goodwill of the Assignor and its
businesses, products and services appurtenant to, associated with or symbolized
by the Trademarks and the use thereof.
Events of Default means any "Event of Default" which has occurred
under the Security Agreement.
Obligations means, collectively, any indebtedness, liabilities and
obligations for payment of money, regardless of kind, class or form and whether
for the payment of principal or of interest or otherwise, incurred, for any
business, commercial, agricultural or consumer purposes or otherwise, now
existing or hereafter arising, created directly (including, but not limited to,
all indebtedness, liabilities and obligations arising as a direct or indirect
result of any overdraft) or by an assignment or other transfer, direct or
indirect, absolute or contingent (including, but not limited to, all
indebtedness, liabilities and obligations arising as a direct or indirect result
of any guaranty, endorsement or other assurance or as a direct or indirect
result of any letter of credit), similar or dissimilar, related or unrelated,
due or not due, contractual or tortuous, liquidated or unliquidated, arising by
operation of law or otherwise, that are now or hereafter owing by Borrower and
Assignor in any capacity, whether alone or otherwise, to the Bank in any
capacity, whether or not allowed as a claim against such Assignor in any case or
other proceeding pursuant to any bankruptcy or insolvency statute, regulation or
other law or any other statute, regulation or other law relating to the relief
of debtors, to the readjustment, composition or extension of indebtedness, to
liquidation or to reorganization.
Pledged Trademarks means all of the Assignor's right, title and
interest in and to all of the Trademarks, the Trademark Registrations, the
Trademark License Rights; the Trademark Rights, the Associated Goodwill, the
Related Assets, and all accessions to, substitutions for, replacements of, and
all products and proceeds of any and all of the foregoing.
PTO means the United States Patent and Trademark Office.
Related Assets means all assets, rights and interests of the
Assignor that uniquely reflect or embody the Associated Goodwill, including the
following:
(a) all patents, inventions, copyrights, trade secrets,
confidential information, formulae, methods or processes, compounds, recipes,
know-how, methods and operating systems, drawings, descriptions, formulations,
manufacturing and production and delivery procedures, quality control
procedures, product and service specifications, catalogs, price lists, and
advertising materials, relating to the manufacture, production, delivery,
provision and sale of goods or services under or in association with any of the
Trademarks; and
(b) the following documents and things in the possession or
under the control of the Assignor, or subject to their demand for possession or
control, related to the production, delivery, provision and sale by the
Assignor, or any affiliate, franchisee,
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licensee or contractor, of products or services sold by or under the authority
of the Assignor in connection with the Trademarks or Trademark Rights, whether
prior to, on or subsequent to the date hereof:
(i) all lists, contracts, ancillary documents and other
information that identify, describe or provide information with respect to any
customers, dealers or distributors of the Assignor, its affiliates or
franchisees or licensees or contractors, for products or services sold under or
in connection with the Trademarks or Trademark Rights, including all lists and
documents containing information regarding each customer's, dealer's or
distributor's name and address, credit, payment, discount, delivery and other
sale terms, and history, pattern and total of purchases by brand, product,
style, size and quantity;
(ii) all agreements (including franchise agreements),
product and service specification documents and operating, production and
quality control manuals relating to or used in the design, manufacture,
production, delivery, provision and sale of products or services under or in
connection with the Trademarks or Trademark Rights;
(iii) all documents and agreements relating to the
identity and locations of all sources of supply, all terms of purchase and
delivery, for all materials, components, raw materials and other supplies and
services used in the manufacture, production, provision, delivery and sale of
products or services under or in connection with the Trademarks or Trademark
Rights; and
(iv) all agreements and documents constituting or
concerning the present or future, current or proposed advertising and promotion
by the Assignor (or any of their affiliates, franchisees, licensees or
contractors) of products or services sold under or in connection with the
Trademarks or Trademark Rights.
Trademark Agreement means this Trademark Collateral Security and
Pledge Agreement, as amended and in effect from time to time.
Trademark License Rights means any and all past, present or future
rights and interests of the Assignor pursuant to any and all past, present and
future franchising or licensing agreements in favor of the Assignor, or to which
the Assignor is a party, pertaining to any Trademarks, Trademark Registrations,
or Trademark Rights owned or used by third parties in the past, present or
future, including the right (but not the obligation) in the name of the Assignor
or the Bank to enforce, and ▇▇▇ and recover for, any breach or violation of any
such agreement to which the Assignor is a party.
Trademark Registrations means all past, present or future federal,
state, local and foreign registrations of the Trademarks, all past, present and
future applications for any such registrations (and any such registrations
thereof upon approval of such applications), together with the right (but not
the obligation) to apply for such registrations (and prosecute such
applications) in the name of the Assignor or the Bank, and to take any and all
actions
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necessary or appropriate to maintain such registrations in effect and renew and
extend such registrations.
Trademark Rights means any and all past, present or future rights
in, to and associated with the Trademarks throughout the world, whether arising
under federal law, state law, common law, foreign law or otherwise, including
the following: all such rights arising out of or associated with the Trademark
Registrations; the right (but not the obligation) to register claims under any
state, federal or foreign trademark law or regulation; the right (but not the
obligation) to ▇▇▇ or bring opposition or cancellation proceedings in the name
of the Assignor or the Bank for any and all past, present and future
infringements or dilution of or any other damages or injury to the Trademarks,
the Trademark Rights, or the Associated Goodwill, and the rights to damages or
profits due or accrued arising out of or in connection with any such past,
present or future infringement, dilution, damage or injury; and the Trademark
License Rights.
Trademarks means all of the trademarks, service marks, designs,
logos, indicia, trade names, corporate names, company names, business names,
fictitious business names, trade styles, elements of package or trade dress, and
other source and product or service identifiers, used or associated with or
appurtenant to the products, services an businesses of the Assignor, that (i)
are set forth on Schedule A hereto, or (ii) have been adopted, acquired, owned,
held or used by the Assignor or are now owned, held or used by the Assignor, in
the Assignor's business, or with the Assignor's products and services, or in
which the Assignor has any right, title or interest, or (iii) are in the future
adopted, acquired, owned, held and used by the Assignor in the Assignor's
business or with the Assignor's products and services, or in which the Assignor
in the future acquires any right, title or interest.
Use means, with respect to any Trademark, all uses of such Trademark
by, for or in connection with the Assignor or its business or for the direct or
indirect benefit of the Assignor or its business, including all such uses by the
Assignor itself, by any of the affiliates of the Assignor, or by any franchisee,
licensee or contractor of the Assignor.
2. GRANT OF SECURITY INTEREST.
2.1 Collateral Assignment of Pledged Trademarks.
To secure the payment and performance in full of any and all
Obligations, the Assignor hereby grants, assigns, transfers and conveys to the
Bank, BY WAY OF COLLATERAL SECURITY, all of the Trademark Collateral. THE BANK
ASSUMES NO LIABILITY ARISING IN ANY WAY BY REASON OF ITS HOLDING SUCH COLLATERAL
SECURITY.
2.2 Supplemental to Security Agreements.
Pursuant to the Security Agreement the Assignor has granted to the
Bank a continuing security interest in and lien on the Collateral (including the
Pledged
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Trademarks). The Security Agreement, and all rights and interests of the Bank in
and to the Collateral (including the Pledged Trademarks) thereunder, are hereby
ratified and confirmed in all respects. In no event shall this Trademark
Agreement, the grant, assignment, transfer and conveyance of the Pledged
Trademarks hereunder, or the recordation of this Trademark Agreement (or any
document hereunder) with the PTO, adversely affect or impair, in any way or to
any extent, the Security Agreement, the security interest of the Bank in the
Collateral (including the Pledged Trademarks) pursuant to the Security Agreement
and this Trademark Agreement, the attachment and perfection of such security
interest under the Uniform Commercial Code (including the security interest in
the Pledged Marks), or any present or future rights and interests of the Bank in
and to the Collateral under or in connection with the Security Agreement, this
Trademark Agreement or the Uniform Commercial Code. Any and all rights and
interests of the Bank in and to the Pledged Trademarks (and any and all
obligations of the Assignor with respect to the Pledged Trademarks) provided
herein, or arising hereunder or in connection herewith, shall only supplement
and be cumulative and in addition to the rights and interests of the Bank (and
the obligations of the Assignor) in, to or with respect to the Collateral
(including the Pledged Trademarks) provided in or arising under or in connection
with the Security Agreement and shall not be in derogation thereof.
2.3 License Back to Assignor.
Unless and until there shall have occurred and be continuing an
Event of Default and the Bank has notified the Assignor that the license granted
hereunder is terminated, the Bank hereby grants to the Assignor the sole and
exclusive, nontransferable, royalty-free, worldwide right and license under the
Trademarks to make, have made for them, use, sell and otherwise practice the
inventions disclosed and claimed in the Trademarks for the Assignor's own
benefit and account and for none other; provided however that the foregoing
right and license shall be no greater in scope than, and limited by, the rights
assigned to the Bank by the Assignor hereby. The Assignor agrees not to sell,
assign, transfer, encumber or sublicense its interest in the license granted to
the Assignor in this Section 2.3, without the prior written consent of the Bank.
Any such sublicenses granted on or after the date hereof shall be terminable by
the Bank upon termination of the Assignor's license hereunder.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS.
The Assignor represents, warrants and covenants that, except as disclosed
on the Intellectual Property Audit Report from ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & Freidenrich LLP
dated September 21, 1999: (i) Schedule A sets forth a true and complete list of
all Trademarks and Trademark Registrations now owned, licensed, controlled or
used by the Assignor; (ii) the Trademarks and Trademark Registrations are
subsisting and have not been adjudged invalid or unenforceable, in whole or in
part, and there is no litigation or proceeding pending concerning the validity
or enforceability of the Trademarks or Trademark Registrations; (iii) to the
best of the Assignor's knowledge, each of the Trademarks and Trademark
Registrations is valid and enforceable; (iv) to the best of the Assignor's
knowledge, there is no infringement by others of the Trademarks, Trademark
Registrations
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or Trademark Rights; (v) no claim has been made that the use of any of the
Trademarks does or may violate the rights of any third person, and to the best
of the Assignor's knowledge, there is no infringement by the Assignor of the
trademark rights of others; (vi) the Assignor is the sole and exclusive owners
of the entire and unencumbered right, title and interest in and to each of the
Trademarks (other than ownership and other rights reserved by third party owners
with respect to Trademarks that the Assignor is licensed to use), free and clear
of any liens, charges, encumbrances and adverse claims, including pledges,
assignments, licenses, registered user agreements and covenants by the Assignor
not to ▇▇▇ third persons, other than the security interest and assignment
created by the Security Agreement and this Trademark Agreement; (vii) the
Assignor has the unqualified right to enter into this Trademark Agreement and to
perform its terms and have entered and will enter into written agreements with
each of its present and future employees, agents, consultants, licensors and
licensees that will enable it to comply with the covenants herein contained;
(viii) the Assignor has used, and will continue to use, proper statutory and
other appropriate proprietary notices in connection with its use of the
Trademarks; (ix) the Assignor has used, and will continue to use for the
duration of this Trademark Agreement, consistent standards of quality in its
manufacture and provision of products and services sold or provided under the
Trademarks; (x) this Trademark Agreement, together with the Security Agreement,
will create in favor of the Bank a valid and perfected first priority security
interest in the Pledged Trademarks upon making the filings referred to in clause
(xi) of this Section 3; and (xi) except for the filing of financing statements
with the City of Alexandria and the Secretary of State for the State of Virginia
under the Uniform Commercial Code and the recording of this Trademark Agreement
with the PTO, no authorization, approval or other action by, and no notice to or
filing with, any governmental or regulatory authority, agency or office is
required either (A) for the grant by the Assignor or the effectiveness of the
security interest and assignment granted hereby or for the execution, delivery
and performance of this Trademark Agreement by the Assignor, or (B) for the
perfection of or the exercise by the Bank of any of its rights and remedies
hereunder.
4. INSPECTION RIGHTS.
The Assignor hereby grants to the Bank and its employees and agents the
right to visit the Assignor's plants and facilities that manufacture, inspect or
store products sold under any of the Trademarks, and to inspect the products and
quality control records relating thereto upon advance notice and at reasonable
times during regular business hours.
5. NO TRANSFER OR INCONSISTENT AGREEMENTS.
Without the Bank's prior written consent and except for licenses of the
Pledged Trademarks in the ordinary course of the Assignor's business consistent
with its past practices, the Assignor will not (i) mortgage, pledge, assign,
encumber, grant a security interest in, transfer, license or alienate any of the
Pledged Trademarks, or (ii) enter into any agreement (for example, a license
agreement) that is inconsistent with the Assignor's obligations under this
Trademark Agreement or the Security Agreement.
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6. AFTER-ACQUIRED TRADEMARKS, ETC.
6.1 After-acquired Trademarks.
If, before the Obligations shall have been finally paid and
satisfied in full and the Assignor does not have any rights to request
borrowings under a line of credit with Bank and all lines of credit provided by
Bank have been terminated, the Assignor shall obtain any right, title or
interest in or to any other or new Trademarks, Trademark Registrations or
Trademark Rights, the provisions of this Trademark Agreement shall automatically
apply thereto and the Assignor shall (i) promptly on request by the Bank and
(ii) on an annual basis provide to the Bank notice thereof in writing and
execute and deliver to the Bank such documents or instruments as the Bank may
reasonably request further to implement, preserve or evidence the Bank's
interest therein.
6.2 Amendment to Schedule.
The Assignor authorizes the Bank to modify this Trademark Agreement
without the necessity of the Assignor's further approval or signature, by
amending Schedule A hereto and the Annex to the Assignment of Marks to include
any future or other Trademarks, Trademark Registrations or Trademark Rights
under Section 2 or Section 6.
7. TRADEMARK PROSECUTION.
7.1 Assignor Responsible.
The Assignor shall assume full and complete responsibility for the
prosecution, defense, enforcement or any other necessary or desirable actions in
connection with the Pledged Trademarks, and shall hold the Bank harmless from
any and all costs, damages, liabilities and expenses that may be incurred by the
Bank in connection with the Bank's interest in the Pledged Trademarks or any
other action or failure to act in connection with this Trademark Agreement or
the transactions contemplated hereby. In respect of such responsibility, the
Assignor shall retain trademark counsel acceptable to the Bank. The Bank shall
not unreasonably delay in responding to any request to approve counsel proposed
by the Assignor
7.2 Assignor's Duties, Etc.
The Assignor shall have the right and the duty, through trademark
counsel acceptable to the Bank, to prosecute diligently any trademark
registration applications of the Trademarks pending as of the date of this
Trademark Agreement or thereafter, to preserve and maintain all rights in the
Trademarks and Trademark Registrations, including the filing of appropriate
renewal applications and other instruments to maintain in effect the Trademark
Registrations and the payment when due of all registration renewal fees and
other fees, taxes and other expenses that shall be incurred or that shall accrue
with respect to any of the Trademarks or Trademark Registrations. Any expenses
incurred in connection
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with such applications and actions shall be borne by the Assignor. The Assignor
shall not abandon any filed trademark registration application, or any Trademark
Registration or Trademark, without the consent of the Bank, which consent shall
not be unreasonably withheld.
7.3 Assignor's Enforcement Rights.
The Assignor shall have the right and the duty to bring suit or
other action in the Assignor's own name to maintain and enforce the Trademarks,
the Trademark Registrations and the Trademark Rights. The Assignor may require
the Bank to join in such suit or action as necessary to assure the Assignor's
ability to bring and maintain any such suit or action in any proper forum if
(but only if) the Bank is completely satisfied that such joinder will not
subject the Bank to any risk of liability. The Assignor shall promptly, upon
demand, reimburse and indemnify the Bank for all damages, costs and expenses,
including legal fees, incurred by the Bank pursuant to this Section 7.3.
7.4 Protection of Trademarks, Etc.
In general, the Assignor shall take any and all such actions
(including institution and maintenance of suits, proceedings or actions) as may
be necessary or appropriate to properly maintain, protect, preserve, care for
and enforce the Pledged Trademarks. The Assignor shall not take or fail to take
any action, nor permit any action to be taken or not taken by others under its
control, that would adversely affect the validity, grant or enforcement of the
Pledged Trademarks.
7.5 Notification by Assignor.
Promptly upon obtaining knowledge thereof, the Assignor will notify
the Bank in writing of the institution of, or any final adverse determination
in, any proceeding in the PTO or any similar office or agency of the United
States or any foreign country, or any court, regarding the validity of any of
the Trademarks or Trademark Registrations or the Assignor's rights, title or
interests in and to the Pledged Trademarks.
8. REMEDIES.
Upon the occurrence and during the continuance of an Event of Default, the
Bank shall have, in addition to all other rights and remedies given it by this
Trademark Agreement (including, without limitation, those set forth in Section
2.2), the Loan Agreement, the Security Agreement and all of the other
agreements, instruments and documents executed by the Assignor with or in favor
of the Bank at any time, those allowed by law and the rights and remedies of a
secured party under the Uniform Commercial Code as enacted in the State of New
York, and, without limiting the generality of the foregoing, the Bank may
immediately, without demand of performance and without other notice (except as
set forth next below) or demand whatsoever to the Assignor, all of which are
hereby expressly waived, sell or license at public or private sale or otherwise
realize upon the whole or from time to time any part of the Pledged Trademarks,
or any
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interest that the Assignor may have therein, and after deducting from the
proceeds of sale or other disposition of the Pledged Trademarks all reasonable
expenses incurred by the Bank in attempting to enforce this Trademark Agreement
(including all reasonable expenses for broker's fees and legal services), shall
apply the residue of such proceeds toward the payment of the Obligations as set
forth in or by reference in the Security Agreement. Notice of any sale, license
or other disposition of the Pledged Trademarks shall be given to the Assignor at
least five (5) days before the time that any intended public sale or other
public disposition of the Pledged Trademarks is to be made or after which any
private sale or other private disposition of the Pledged Trademarks may be made,
which the Assignor hereby agrees shall be reasonable notice of such public or
private sale or other disposition. At any such sale or other disposition, the
Bank may, to the extent permitted under applicable law, purchase or license the
whole or any part of the Pledged Trademarks or interests therein sold, licensed
or otherwise disposed of.
9. COLLATERAL PROTECTION.
If the Assignor shall fail to do any act that it has covenanted to do
hereunder, or if any representation or warranty of the Assignor shall be
breached, the Bank, in its own name or that of the Assignor (in the sole
discretion of the Bank), may (but shall not be obligated to) after ten (10) days
written notice do such act or remedy such breach (or cause such act to be done
or such breach to be remedied), and the Assignor agrees promptly to reimburse
the Bank for any cost or expense incurred by the Bank in so doing.
10. POWER OF ATTORNEY
If any Event of Default shall have occurred and be continuing, the
Assignor does hereby make, constitute and appoint the Bank (and any officer or
agent of the Bank as the Bank may select in its exclusive discretion) as the
Assignor's true and lawful attorney-in-fact, with full power of substitution and
with the power to endorse the Assignor's name on all applications, documents,
papers and instruments necessary for the Bank to use the Pledged Trademarks, or
to grant or issue any exclusive or nonexclusive license of any of the Pledged
Trademarks to any third person, or to take any and all actions necessary for the
Bank to assign, pledge, convey or otherwise transfer title in or dispose of any
of the Pledged Trademarks or any interest of the Assignor therein to any third
person, and, in general, to execute and deliver any instruments or documents and
do all other acts that the Assignor is obligated to execute and do hereunder.
The Assignor hereby ratifies all that such attorney shall lawfully do or cause
to be done by virtue hereof and releases the Bank from any claims, liabilities,
causes of action or demands arising out of or in connection with any action
taken or omitted to be taken by the Bank under this power of attorney (except
for the Bank's gross negligence or willful misconduct). This power of attorney
is coupled with an interest and shall be irrevocable for the duration of this
Trademark Agreement.
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11. FURTHER ASSURANCES.
The Assignor shall, at any time and from time to time, and at its expense,
make, execute, acknowledge and deliver, and file and record as necessary or
appropriate with governmental or regulatory authorities, agencies or offices,
such agreements, assignments, documents and instruments, and do such other and
further acts and things (including, without limitation, obtaining consents of
third parties), as the Bank may request or as may be necessary or appropriate in
order to implement and effect fully the intentions, purposes and provisions of
this Trademark Agreement, or to assure and confirm to the Bank the grant,
perfection and priority of the Bank's security interest in the Pledged
Trademarks.
12. TERMINATION.
At such time as all of the Obligations have been finally paid and
satisfied in full and the Assignor does not have any rights to request an
advance under any line of credit and all lines of credit provided by Bank have
been terminated, this Trademark Agreement shall terminate and the Bank shall,
upon the written request and at the expense of the Assignor, execute and deliver
to the Assignor all deeds, assignments and other instruments as may be necessary
or proper to reassign and reconvey to and re-vest in the Assignor the entire
right, title and interest to the Pledged Trademarks previously granted,
assigned, transferred and conveyed to the Bank by the Assignor pursuant to this
Trademark Agreement, as fully as if this Trademark Agreement had not been made,
subject to any disposition of all or any part thereof that may have been made by
the Bank pursuant hereto or the Security Agreement.
13. COURSE OF DEALING.
No course of dealing between the Assignor and the Bank, nor any failure to
exercise, nor any delay in exercising, on the part of the Bank, any right, power
or privilege hereunder or under the Security Agreement or any other agreement
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.
14. EXPENSES.
Any and all reasonable fees, costs and expenses, of whatever kind or
nature, including the reasonable attorneys' fees and expenses incurred by the
Bank in connection with the preparation of this Trademark Agreement and all
other documents relating hereto, the consummation of the transactions
contemplated hereby or the enforcement hereof, the filing or recording of any
documents (including all taxes in connection therewith) in public offices, the
payment or discharge of any taxes, counsel fees, maintenance or renewal fees,
encumbrances, or otherwise protecting, maintaining or preserving the Pledged
Trademarks, or in defending or prosecuting any actions or proceedings arising
out of or related to the Pledged Trademarks shall be borne and paid by the
Assignor.
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15. OVERDUE AMOUNTS.
Until paid, all amounts due and payable by the Assignor hereunder shall be
a debt secured by the Pledged Trademarks and other Collateral and shall bear,
whether before or after judgment, interest at the rate of interest for overdue
principal set forth in the applicable notes evidencing such Obligations.
16. NO ASSUMPTION OF LIABILITY; INDEMNIFICATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE BANK
ASSUMES NO LIABILITIES OF THE ASSIGNOR WITH RESPECT TO ANY CLAIM OR CLAIMS
REGARDING THE ASSIGNOR'S OWNERSHIP OR PURPORTED OWNERSHIP OF, OR RIGHTS OR
PURPORTED RIGHTS ARISING FROM, ANY OF THE PLEDGED TRADEMARKS OR ANY USE, LICENSE
OR SUBLICENSE THEREOF, WHETHER ARISING OUT OF ANY PAST, CURRENT OR FUTURE EVENT,
CIRCUMSTANCE, ACT OR OMISSION OR OTHERWISE. ALL OF SUCH LIABILITIES SHALL BE
EXCLUSIVELY THE RESPONSIBILITY OF THE ASSIGNOR, AND THE ASSIGNOR SHALL INDEMNIFY
THE BANK FOR ANY AND ALL COSTS, EXPENSES, DAMAGES AND CLAIMS, INCLUDING LEGAL
FEES, INCURRED BY THE BANK WITH RESPECT TO SUCH LIABILITIES.
17. NOTICES.
All notices and other communications made or required to be given pursuant
to this Trademark Agreement shall be in writing and shall be delivered in hand,
mailed by United States registered or certified first-class mail, postage
prepaid, or sent by telegraph, telecopy or telex and confirmed by delivery via
courier or postal service, addressed as follows:
(a) if to the Assignor, at ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ 0. ▇▇▇▇▇▇▇▇▇, Senior Vice President and Chief Financial
Officer, or at such other address for notice as the Assignor shall last have
furnished in writing to the person giving the notice; and
(b) if to the Bank, at One M&T Plaza, Buffalo, New York 14203,
Attention: Collateral Department, or at such other address for notice as the
Bank shall last have furnished in writing to the person giving the notice, with
copies to Bank at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Vice President.
Any such notice or demand shall be deemed to have been duly given or made and to
have become effective (i) if delivered by hand to a responsible officer of the
party to which it is directed, at the time of the receipt thereof by such
officer, (ii) if sent by registered or certified first-class mail, postage
prepaid, two (2) Business Days after the posting thereof, (iii) if sent by
telegraph, telecopy, or telex, at the time of the dispatch thereof, if in normal
business hours in the country of receipt, or otherwise at the opening of
business on the following Business Day.
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18. AMENDMENT AND WAIVER.
This Trademark Agreement is subject to modification only by a writing
signed by the Bank and the Assignor, except as provided in Section 6.2. The Bank
shall not be deemed to have waived any right hereunder unless such waiver shall
be in writing and signed by the Bank. A waiver on any one occasion shall not be
construed as a bar to or waiver of any right on any future occasion.
19. GOVERNING LAW; CONSENT TO JURISDICTION.
THIS TRADEMARK AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED
INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK. The Assignor agrees that any suit for the enforcement
of this Trademark Agreement may be brought in the courts of the County of Monroe
or any federal court sitting therein and consents to the non-exclusive
jurisdiction of such court and to service of process in any such suit being made
upon the Assignor by mail at the address specified in Section 17. The Assignor
hereby waives any objection that it may now or hereafter have to the venue of
any such suit or any such court or that such suit is brought in an inconvenient
court.
20. WAIVER OF JURY TRIAL.
THE ASSIGNOR WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION
OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS TRADEMARK AGREEMENT,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY SUCH RIGHTS OR
OBLIGATIONS. Except as prohibited by law, the Assignor waives any right which it
may have to claim or recover in any litigation referred to in the preceding
sentence any special, exemplary, punitive or consequential damages or any
damages other than, or in addition to, actual damages. The Assignor (i)
certifies that neither the Bank nor any representative, agent or attorney of the
Bank has represented, expressly or otherwise, that the Bank would not, in the
event of litigation, seek to enforce the foregoing waivers, and (ii)
acknowledges that, in entering into the Loan Agreement and the other agreements,
instruments or documents to which the Bank is a party, the Bank is relying upon,
among other things, the waivers and certifications contained in this Section 20.
21. BANKS RIGHT TO ACCEPT OR CONSENT, ETC.
Notwithstanding anything herein to the contrary, Bank shall not be deemed
to have unreasonably delayed in responding to a request for a consent hereunder
or the approval of a counsel proposed by Assignor whom the Bank must consent to
unless Bank fails to respond to a request for such consent or acceptance of
proposed counsel for ten (10) days after such request is submitted and Assignor
thereafter notifies Bank in writing that it believes Bank has unreasonably
delayed in responding to such request and Bank continues for more than ten (10)
days after its receipt of such notice to respond to such request. In any event,
the sole remedy for Assignor if Bank unreasonably delayed in responding to any
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such request shall be that it loses its right to consent to any such action or
to approve any such counsel.
22. MISCELLANEOUS.
The headings of each section of this Trademark Agreement are for
convenience only and shall not define or limit the provisions thereof. This
Trademark Agreement and all rights and obligations hereunder shall be binding
upon the Assignor and its successors and assigns, and shall inure to the benefit
of the Bank and its successors and assigns. In the event of any irreconcilable
conflict between the provisions of this Trademark Agreement and the Loan
Agreement, or between this Trademark Agreement and the Security Agreement, the
provisions of the Loan Agreement or the Security Agreement, as the case may be,
shall control. If any term of this Trademark Agreement shall be held to be
invalid, illegal or unenforceable, the validity of all other terms hereof shall
in no way be affected thereby, and this Trademark Agreement shall be construed
and be enforceable as if such invalid, illegal or unenforceable term had not
been included herein. The Assignor acknowledges receipt of a copy of this
Trademark Agreement.
IN WITNESS WHEREOF, this Trademark Agreement has been executed as of the
day and year first above written.
COMMONWEALTH SCIENTIFIC
CORPORATION
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name:
Title: Sr. V.P. & CFO
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
COUNTY OF Monroe ) ss:
On the 22nd day of September in the year 1999 before me, the undersigned,
a Notary Public in and for said state, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
/s/ ▇▇▇▇▇ ▇. Reochia
--------------------------------------
Notary Public
▇▇▇▇▇ ▇. REOCHIA
Notary Public, State of New York
No. 02RE5004858
Qualified in Monroe County
Certicate Filed in Monroe County
Commission Expires Nov. 23, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
COUNTY OF Monroe ) ss:
On the 22nd day of September in the year 1999 before me, the undersigned,
a Notary Public in and for said state, personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
/s/ ▇▇▇▇▇ ▇. Reochia
--------------------------------------
Notary Public
▇▇▇▇▇ ▇. REOCHIA
Notary Public, State of New York
No. 02RE5004858
Qualified in Monroe County
Certicate Filed in Monroe County
Commission Expires Nov. 23, 2000
-14-
CVC Intellectual Property Audit Attorney-Client Privilege
Client Confidential Information
=======================================================================================
Table 8: CVC's Trademark Assets
---------------------------------------------------------------------------------------
▇▇▇▇ Status Goods Protected
=======================================================================================
Millatron3 U.S. Trademark This trademark has been registered
registration 1,148,692 to Commonwealth Scientific --
Status of the registration to be
Issued 3/24/81 verified
Corporation and it related to ion beam
etching machines in class 7.
---------------------------------------------------------------------------------------
RIBE(TM) U.S. Trademark This trademark has been registered
registration 1,173,999 to Commonwealth Scientific --
Status of the registration to be
Issued 10/20/81 verified
Corporation. Protects ion beam
etching machines.
---------------------------------------------------------------------------------------
OPTILIN(TM) U.S. Trademark This trademark has been registered
registration 2,038,220 to Commonwealth Scientific --
Status of the registration to be
2/18/97 verified
Electrostatic ion accelerators for use
in etching a variety of substrates,
namely metal, semiconductors and
insulators for use in depositing thin
films of metal semiconductors and
insulators on other surfaces in class 9.
---------------------------------------------------------------------------------------
MIM(TM) U.S. Trademark This trademark has been registered
registration 980,228 to Commonwealth Scientific --
Status of the registration to be
3/1274 to Commonwealth verified
Scientific Corporation
Metal and metal composites in class 14.
=======================================================================================
CVC has no prior opinions or similar documents relating to the scope or
validity of its trademarks. No maintenance fees are presently due for CVC's
existing CONNEXION(R) trademark registration. In addition, there are no
documents relating to litigation or licenses involving CVC's trademarks, related
foreign filings, and product-line information related to the trademarks.
3. CVC's Foreign Trademark Assets. To date, CVC holds no foreign trademark
registrations. Nor does CVC, as of the date of this Intellectual Property Audit
Report, have pending any foreign trademark applications. To the extent that CVC
uses a particular ▇▇▇▇ for a
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