ASSIGNMENT FOR SECURITY
(TRADEMARKS)
STATE OF GEORGIA )
) SS.:
COUNTY OF FULTON )
WHEREAS, PRINCETON DIAGNOSTIC LABORATORIES OF AMERICA, 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 Guaranty dated
of even date (as amended, supplemented or restated from time to time, the
"Guaranty") in favor of HELLER FINANCIAL, INC., a Delaware corporation
("Lender"), and
WHEREAS, as a condition precedent to the extension of the
financial accommodations to or for the benefit of certain affiliates of the
Assignor pursuant to the Loan Agreement (as defined in the Guaranty), 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 certain affiliates of the Assignor as provided 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 of the Assignor under the Guaranty
and 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 and the obligations of the Assignor under the Guaranty. 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.
-2-
IN WITNESS WHEREOF, the Assignor has caused this Assignment to
be duly executed by its authorized officer or agent as of January ___, 1996.
PRINCETON DIAGNOSTIC
LABORATORIES OF AMERICA, 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 PRINCETON DIAGNOSTIC
LABORATORIES OF AMERICA, 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
me this ___ day of January, 1996.
Notary Public
-3-
[NOTARIAL SEAL]
My Commission Expires:
-4-
EXHIBIT A
TRADEMARK REGISTRATION NUMBER REGISTRATION DATE
PDLA 1,477,191 02/16/88