ASSIGNMENT FOR SECURITY
(TRADEMARKS)
STATE OF GEORGIA )
) SS.:
COUNTY OF FULTON )
WHEREAS, EDITEK, INC., a Delaware corporation (the
"Assignor"), has adopted, used and is using marks which are either registered or
applied for in the United States Patent and Trademark Office as set forth on
Exhibit A (the "Trademarks"), and
WHEREAS, the Assignor is the sole owner of the entire right,
title and interest in and to the Trademarks which are registered and the
goodwill of the business symbolized by the Trademarks and the registrations
thereof, and
WHEREAS, Assignor has entered into that certain Loan and
Security Agreement, dated of even date (as amended, supplemented or restated
from time to time, the "Loan Agreement"), between Assignor, certain of its
affiliates and HELLER FINANCIAL, INC., a Delaware corporation ("Lender"), and
Lender has, on the date hereof, made certain loans to or for the benefit of
Assignor and may make additional loans to or for the benefit of Assignor, and
WHEREAS, pursuant to the Loan Agreement and as a condition
precedent to the extension of the financial accommodations to or for the benefit
of the Assignor under the Loan Agreement, the Assignor has agreed to assign to
Lender and to grant to Lender a continuing security interest in, and a
continuing lien on, all of the Assignor's right, title and interest in and to
the following (collectively the "Trademark Collateral"),
(a) the Trademarks, together with all rights, benefits and
privileges derived therefrom, and the goodwill of the business
symbolized by the Trademarks and the registrations thereof, and
(b) all proceeds thereof, including, but not limited to, any
claims and demands arising out of any infringement of the Trademarks,
including the right to settle disputes concerning such claims and
demands.
NOW, THEREFORE, in order to induce Lender to consummate the
financial accommodations to the Assignor provided for in the Loan Agreement, and
for other good and valuable consideration, receipt and sufficiency of which are
hereby acknowledged, the Assignor does hereby assign to Lender and grant to
Lender a continuing security interest in and a continuing lien on, the entire
right, title and interest of Assignor in and to the Trademark Collateral.
The Trademark Collateral shall serve as collateral security to Lender
for the payment and performance of the Obligations (as such term is defined
in the Loan Agreement)and shall constitute a part of the Collateral (as such
term is defined in the Loan Agreement), and shall be subject to all of
the terms and conditions of the Loan Agreement, which is incorporated
herein by reference.
Unless and until said lien and security interest is foreclosed
upon, Assignor (i) shall be deemed to remain in exclusive and undisturbed
possession of the Trademarks, (ii) shall exclusively retain all rights to
license others under the Trademarks, but only in a manner consistent with the
preservation of their current substance, validity, registration and the security
interest granted herein, and (iii) may bring suit for the infringement of the
Trademarks and to retain the proceeds of the foregoing. Lender need not be
joined as a plaintiff in any such infringement suit; provided, that should it be
necessary, in Lender's sole judgment, that Lender be joined as an indispensable
party or true party in interest in any such infringement suit, Lender shall, at
its option, either
(1) appoint Assignor its attorney in fact for the purpose of
prosecuting such infringement suit on the express condition that
Assignor indemnify and hold Lender harmless for any liability incurred
by Lender as a result of such appointment, or
(2) participate actively in the prosecution of such suit.
Assignor further agrees (i) that while a secured party
hereunder, Lender shall have no obligation or responsibility to protect or
defend the Trademark Collateral and Assignor shall at its own expense protect,
defend and maintain the same to the extent reasonably advisable for its
business, (ii) to use its best efforts to detect any infringers of the Trademark
Collateral, to forthwith advise Lender in writing of infringements detected, and
protect, defend and maintain the Trademark Collateral against any infringements,
(iii) that if Assignor fails to comply with the foregoing clauses (i) and (ii),
Lender may do so in Assignor's name or in Lender's name but at Assignor's
expense, and Assignor hereby agrees to reimburse Lender for all expenses,
including reasonable attorneys' fees, incurred by Lender in protecting,
defending and maintaining the Trademark Collateral owned by Assignor, and (iv)
to use the Trademarks only in its businesses as they are presently conducted.
The security interest in the Trademark Collateral granted
hereunder shall remain in full force and effect until the later of the
termination of the Loan Agreement and the payment and satisfaction in full of
the Obligations. At any time thereafter Lender shall, if requested by Assignor,
execute and deliver to Assignor, or to a third party upon Assignor's
instructions, for filing with the United States Patent and Trademark Office and
in each office in which any financing statement relative to the security
interest granted hereby may have been filed, (i) documentation in accordance
with the rules and regulations of said office, (ii) termination statements under
the Uniform Commercial Code and (iii) any other documentation reasonably
requested by Assignor, all as may be necessary to release Lender's interest in
the Trademark Collateral, and all at the cost and expense of Assignor.
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IN WITNESS WHEREOF, the Assignor has caused this Assignment to
be duly executed by its authorized officer or agent as of January ___, 1996.
EDITEK, INC.
By:
Title:
Attest:
Title:
[CORPORATE SEAL]
STATE OF GEORGIA )
) ss.:
COUNTY OF FULTON )
On this ___ day of January, 1996, before me personally came
___________________ and _____________________, to me known, who, being by me
duly sworn, did depose and say that they are, respectively, the
____________________and _____________________ of EDITEK, INC., the corporation
described herein and which executed the foregoing instrument; that they know the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation and that they signed thereto by like order.
Sworn to and subscribed before me
this ___ day of January, 1996.
Notary Public
[NOTARIAL SEAL]
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My Commission Expires:
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EXHIBIT A
TRADEMARK REGISTRATION NUMBER REGISTRATION DATE
EDITEK 1,879,044 02/14/95
BIOMAN 363,506 11/10/89
LOGO 1,374,423 12/10/85
QUIK-CARD 1,387,168 03/25/86
EZ-SCREEN 1,412,788 10/14/86
DAIRISCREEN 1,629,710 01/01/91
DAIRYSCREEN 1,629,709 01/01/91
VERDICT 1,771,281 05/18/93
PREDICT 1,877,141 01/31/95
RECON 1,847,306 07/26/94
EZ-QUANT 1,917,508 09/12/95