BORROWER SECURITY AGREEMENT
(INTELLECTUAL PROPERTY)
THIS BORROWER SECURITY AGREEMENT (INTELLECTUAL PROPERTY),
dated as of September [A], 1999 is executed by ADAC LABORATORIES, a California
corporation ("Borrower") in favor of ABN AMRO BANK N.V., a Netherlands public
company acting through its San Francisco Representative Office, acting as agent
(in such capacity, "Agent") for the financial institutions which are from time
to time parties to the Credit Agreement referred to in Recital A below
(collectively, the "Lenders").
RECITALS
A. Pursuant to an Amended and Restated Credit Agreement, dated as of
March 29, 1999 as amended by that certain First Amendment to Amended and
Restated Credit Agreement dated as of August 17, 1999 (as amended, and as
further amended from time to time, the "Credit Agreement"), among Borrower,
the Lenders and Agent, the Lenders have agreed to extend certain credit
facilities to Borrower upon the terms and subject to the conditions set forth
therein.
B. The Lenders' obligations to continue to extend the credit
facilities to Borrower under the Credit Agreement are subject, among other
conditions, to receipt by Agent of this Security Agreement duly executed by
Borrower.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrower hereby agrees with Agent, for the ratable benefit of
the Lenders and Agent, as follows:
1. DEFINITIONS AND INTERPRETATION. When used in this Security
Agreement, the following terms shall have the following respective meanings:
"Agent" shall have the meaning given to that term in the introductory
paragraph hereof.
"Borrower" shall have the meaning given to that term in the
introductory paragraph hereof.
"Collateral" shall have the meaning given to that term in paragraph 2
hereof.
I-1-1
"Credit Agreement" shall have the meaning given to that term in Recital
A hereof.
"Copyright Office" shall mean the United States Copyright Office or any
successor office or agency thereto.
"Copyrights" shall have the meaning given to that term in Attachment 1
hereto.
"Lenders" shall have the meaning given to that term in the introductory
paragraph hereof.
"Mask Works" shall have the meaning given to that term in Attachment 1
hereto.
"Patent and Trademark Office" shall mean the United States Patent and
Trademark Office or any successor office or agency thereto.
"Patent Applications" shall mean all applications made by, or on behalf
of, Borrower to the Patent and Trademark Office or to any similar
office or agency of any foreign country or political subdivision
thereof for the registration of Patents.
"Patent Registrations" shall mean all Patents registered with the
Patent and Trademark Office or with any similar office or agency of any
foreign country or political subdivision thereof and all Patent
Applications.
"Patents" shall have the meaning given to that term in Attachment 1
hereto.
"Secured Obligations" shall have the meaning given to that term in the
Credit Agreement.
"Trade Secrets" shall have the meaning given to that term in
Attachment 1 hereto.
"Trademarks" shall have the meaning given to that term in Attachment 1
hereto.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of California from time to time.
Unless otherwise defined herein, all other capitalized terms used herein and
defined in the Credit Agreement shall have the respective meanings given to
those terms in the Credit Agreement, and all terms defined in the UCC shall have
the respective meanings given to those terms in the UCC. The rules of
construction set forth in Section I of the Credit Agreement shall, to the extent
not inconsistent with the terms
I-1-2
of this Security Agreement, apply to this Security Agreement and are hereby
incorporated by reference.
2. GRANT OF SECURITY INTEREST. As security for the Secured
Obligations, Borrower hereby pledges and assigns to Agent (for the ratable
benefit of the Lenders and Agent) and grants to Agent (for the ratable
benefit of the Lenders and Agent) a security interest in all right, title and
interest of Borrower in and to the property described in Attachment 1 hereto,
whether now owned or hereafter acquired (collectively and severally, the
"Collateral"), which Attachment 1 is incorporated herein by this reference.
3. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants
to the Lenders and Agent as follows:
(a) Borrower is the legal and beneficial owner of the Collateral
(or, in the case of after-acquired Collateral, at the time Borrower
acquires rights in the Collateral, will be the beneficial owner
thereof). No other Person has (or, in the case of after-acquired
Collateral, at the time Borrower acquires rights therein, will have)
any right, title, claim or interest (by way of Lien, purchase option
or otherwise) in, against or to the Collateral, other than Permitted
Liens.
(b) Agent has (or in the case of after-acquired Collateral, at
the time Borrower acquires rights therein, will have) a first
priority perfected security interest in the Collateral, subject to
no other Liens other than Permitted Liens; provided, however, that
(i) the security interest of Agent may be subject to Permitted Liens
and (ii) Agent must make the filings with the Patent and Trademark
Office contemplated by this Security Agreement to perfect its
security interest in Borrower's Patents and Trademarks registered
with that office.
(c) Borrower has the sole, full and unencumbered right, title
and interest in and to (i) each of the Trademarks described in
Schedule A to Attachment 1 hereto for the goods and services covered
by the registrations thereof, (ii) each of the Patents described in
Schedule B to Attachment 1 hereto, (iii) each of the Copyrights
described in Schedule C to Attachment 1 hereto and (iv) each of the
Mask Works described in Schedule D to Attachment 1 hereto. Any
registrations for such Trademarks and Patents are valid and
enforceable and in full force and effect and none of the Patents has
been abandoned or dedicated. According to the records of the
Copyright Office, all registered Copyrights and Mask Works are valid
and enforceable and in full force and effect.
(d) Borrower does not own any Patents, Trademarks, Copyrights
or Mask Works registered in, or the subject of pending applications
in, the
I-1-3
Patent and Trademark Office or the Copyright Office, other than those
described in Schedules A, B, C and D to Attachment 1 hereto.
(e) To the best of Borrower's knowledge, no claim has been made
by any third party and remains unresolved that any of the Patents,
Trademarks, Copyrights or Mask Works is invalid and unenforceable or
violates or may violate the rights of any Person.
(f) Set forth in Schedule E to Attachment 1 hereto is a
complete list of all material licenses of Patents, Trademarks,
Copyrights, Mask Works and Trade Secrets which Borrower has granted
to any Person.
(g) Set forth in Schedule F to Attachment 1 hereto is a
complete list of all licenses of Patents, Trademarks, Copyrights,
Mask Works and Trade Secrets which any Person has granted to
Borrower.
(h) Borrower has obtained from each employee who may be
considered the inventor of patentable inventions (invented within
the scope of such employee's employment with Borrower) an agreement
to assign to Borrower all rights to such inventions, including
Patents.
(i) Borrower has taken all commercially reasonable steps to
protect the secrecy and the validity under applicable law of all
material Trade Secrets.
4. COVENANTS OF BORROWER. Borrower hereby agrees as follows:
(a) Borrower, at Borrower's expense, shall promptly procure,
execute and deliver to Agent all documents, instruments and
agreements and perform all acts which are necessary, or which Agent
may reasonably request, to establish, maintain, preserve, protect
and perfect the Collateral, the Lien granted to Agent therein and
the first priority of such Lien or to enable Agent to exercise and
enforce its rights and remedies hereunder with respect to any
Collateral. Without limiting the generality of the preceding
sentence, Borrower shall (i) execute all notices of security
interest for each relevant type of intellectual property in forms
suitable for filing with the Patent and Trademark Office or the
Copyright Office, as applicable, substantially in the forms of
Attachments 2 and 3 hereto or other forms reasonably acceptable to
Agent and (ii) take all commercially reasonable steps in any
proceeding before the Patent and Trademark Office, the Copyright
Office or any similar office or agency in any other country or any
political subdivision thereof, to diligently prosecute or maintain,
as applicable, each application and registration of material
Patents, Trademarks, Copyrights and Mask Works, including filing of
renewals, affidavits of use, affidavits of incontestability and
opposition, interference and cancellation proceedings (except to the
extent that dedication,
I-1-4
abandonment or invalidation is permitted hereunder or would not be
reasonably likely to have a Material Adverse Effect).
(b) Borrower shall not use any Collateral or permit any
Collateral to be used in violation of (i) any provision of the
Credit Agreement, this Security Agreement or any other Credit
Document, (ii) any applicable Governmental Rule or Contractual
Obligation where such use could reasonably be expected to have a
Material Adverse Effect, or (iii) any policy of insurance covering
the Collateral where such use is reasonably likely to have a
Material Adverse Effect.
(c) Borrower shall pay promptly when due all taxes and other
governmental charges, all Liens and all other charges now or
hereafter imposed upon, relating to or affecting any Collateral.
(d) Borrower shall appear in and defend any action or
proceeding which may affect its title to or Agent's security
interest in the Collateral if an adverse decision is reasonably
likely to have a Material Adverse Effect.
(e) Borrower shall keep separate, accurate and complete records
of the Collateral and shall permit Agent to examine and make copies
of such records and provide such reports and information relating to
the Collateral as Agent may reasonably request from time to time.
(f) Borrower shall not surrender or lose possession of (other
than to Agent), sell, encumber, lease, rent, option, license or
otherwise dispose of or transfer any Collateral or right or interest
therein except as permitted in the Credit Agreement, and Borrower
shall keep the Collateral free of all Liens except Permitted Liens.
(g) Borrower (either directly or through licensees) will make
commercially reasonable efforts to continue to use the Trademarks
which are material to Borrower's business or operations in
connection with each and every trademark class of goods or services
applicable to its current line of products or services as reflected
in its current catalogs, brochures, price lists or similar materials
in order to maintain such Trademarks in full force and effect free
from any claim of abandonment for nonuse, and Borrower will not (and
will not permit any licensee thereof to) do any act or knowingly
omit to do any act whereby Borrower's rights in any such material
Trademark is reasonably likely to become invalidated. Borrower will
not do any act, or omit to do any act, whereby the Patents or Patent
Registrations which are material to Borrower's business or
operations may become abandoned or dedicated or the remedies
available against potential infringers weakened if such action or
omission would be reasonably likely to have a Material Adverse
Effect and shall notify Agent immediately if it knows of any reason
or has reason to know that any such Patent Registration may become
I-1-5
abandoned or dedicated. Borrower will not do any act or omit to do
any act, whereby the Copyrights or Mask Works which are material to
Borrower's business or operations may become abandoned or dedicated
or the remedies available against potential infringers weakened if
such action or omission would be reasonably likely to have a
Material Adverse Effect, and shall notify Agent immediately if it
knows of any reason or has reason to know that any such Copyright or
Mask Work may become abandoned or dedicated.
(h) Borrower will promptly notify Agent upon the filing, either
by Borrower or through any agent, employee, licensee or designee, of
(i) an application for the registration of any Patent, Trademark,
Copyright or Mask Work with the Patent and Trademark Office or the
Copyright Office or any similar office or agency in any other
country or any political subdivision thereof, (ii) any assignment of
any Patent or Trademark, which Borrower may acquire from a third
party, with the Patent and Trademark Office or any similar office or
agency in any other country or any political subdivision thereof, or
(iii) any assignment of any Copyright or Mask Work, which Borrower
may acquire from a third party, with the Copyright Office or any
similar office or agency in any other country or any political
subdivision thereof.
(i) Borrower shall (i) make application to the Patent and
Trademark Office to register any material unpatented but patentable
inventions developed by Borrower or its employees (within the scope
of their employment), unless Borrower, in the exercise of its
prudent business judgment, deems any such Patent not to have any
significant commercial value or determines that its rights
thereunder are better preserved as a Trade Secret, (ii) make
application to the Patent and Trademark Office to register any
registerable but unregistered material Trademarks used by Borrower
in connection with its products or services unless Borrower in the
exercise of its prudent business judgment, deems any such Trademark
not to have any significant commercial value, and (iii) make
application to the Copyright Office to register any material
unregistered Copyright or Mask Work to which Borrower has rights
unless Borrower in the exercise of its prudent business judgment,
deems any such Copyright or Mask Work not to have any significant
commercial value or determines that its rights thereunder are better
protectable as a Trade Secret.
(j) Borrower shall (i) use proper statutory notice in connection
with its use of the Trademarks, Copyrights and Mask Works,
(ii) maintain consistent standards of quality in its manufacture of
products sold under the Trademarks or provision of services in
connection with the Trademarks, and (iii) take all commercially
reasonable steps to protect the secrecy and the validity under
applicable law of all material Trade Secrets.
I-1-6
(k) If any Executive Officer of Borrower learns of any use by
any Person of any term or design likely to cause confusion with any
Trademark, Borrower shall promptly notify Agent of such use and of
all steps taken and to be taken to remedy any infringement of such
Trademark.
(l) Borrower shall maintain with each employee who may have
access to any material Trade Secrets of Borrower an agreement by
which such employee agrees not to disclose such Trade Secrets and
with each employee who may be the inventor of patentable inventions
(invented within the scope of such employee's employment) an
invention assignment agreement requiring such employee to assign all
rights to such inventions, including, patents and patent
applications, to Borrower and further requiring such employee to
cooperate fully with Borrower, its successors in interest, including
Agent, and their counsel, in the prosecution of any patent
application or in any litigation involving the invention, whether
such cooperation is required during such employee's employment with
Borrower or after the termination of such employment.
5. AUTHORIZED ACTION BY AGENT. Borrower hereby irrevocably appoints
Agent as its attorney-in-fact and agrees that Agent may perform (but Agent
shall not be obligated to and shall incur no liability to Borrower or any
third party for failure so to do) any act which Borrower is obligated by this
Security Agreement to perform, and to exercise such rights and powers as
Borrower might exercise with respect to the Collateral, including, without
limitation, the right to (a) collect by legal proceedings or otherwise and
endorse, receive and receipt for all royalties, payments, proceeds and other
sums and property now or hereafter payable on or on account of the Collateral;
(b) enter into any extension, reorganization, deposit, merger, consolidation or
other agreement pertaining to, or deposit, surrender, accept, hold or apply
other property in exchange for the Collateral; (c) insure, process, preserve and
enforce the Collateral; (d) make any compromise or settlement, and take any
action it deems advisable, with respect to the Collateral; (e) pay any
indebtedness of Borrower relating to the Collateral; and (f) execute UCC
financing statements and other documents, instruments and agreements required
hereunder; provided, however, that Agent shall exercise such powers only after
the occurrence and during the continuance of an Event of Default. In furtherance
of the powers granted in this paragraph 5, Borrower shall execute and deliver to
Agent a Special Power of Attorney in the form of Attachment 4 hereto. Borrower
agrees to reimburse Agent upon demand for all reasonable costs and expenses,
including reasonable attorneys' fees, Agent may incur while acting as Borrower's
attorney-in-fact hereunder, all of which costs and expenses are included in the
Secured Obligations. Borrower agrees that such care as Agent gives to the
safekeeping of its own property of like kind shall constitute reasonable care of
the Collateral when in Agent's possession; provided, however, that Agent shall
not be required to make any presentment, demand or protest, or give any notice
and need not take any
I-1-7
action to preserve any rights against any prior party or any other Person
in connection with the Secured Obligations or with respect to the Collateral.
6. DEFAULT AND REMEDIES. Borrower shall be deemed in default under
this Security Agreement upon the occurrence and during the continuance of an
Event of Default, as that term is defined in the Credit Agreement. In
addition to all other rights and remedies granted to Agent by this Security
Agreement, the Credit Agreement, the other Credit Documents, the UCC and
other applicable Governmental Rules, Agent may, upon the occurrence and
during the continuance of any Event of Default, exercise any one or more of
the following rights and remedies: (a) collect, receive, appropriate or
realize upon the Collateral or otherwise foreclose or enforce Agent's
security interests in any or all Collateral in any manner permitted by
applicable Governmental Rules or in this Security Agreement; (b) notify any
or all licensees to make payments on Receivables directly to Agent; (c) sell
or otherwise dispose of any or all Collateral at one or more public or
private sales, whether or not such Collateral is present at the place of
sale, for cash or credit or future delivery, on such commercially reasonable
terms and in such commercially reasonable manner as Agent may determine; (d)
upon ten (10) Business Days' prior notice to Borrower, direct Borrower not to
make any further use of the Patents, the Trademarks (or any mark similar
thereto), the Copyrights (or any work deriving therefrom), or the Mask Works
for any purpose; (e) upon ten (10) Business Days' prior notice to Borrower,
license, whether general, special or otherwise, and whether on an exclusive
or nonexclusive basis, any of the Patents, Trademarks, Copyrights or Mask
Works, throughout the world for such term or terms, on such conditions, and
in such manner, as Agent shall in its sole discretion determine; (f) enforce
(and upon notice to Borrower have the exclusive right to enforce) against any
licensee or sublicensee all rights and remedies of Borrower in, to and under
any one or more license agreements with respect to the Collateral (without
assuming any obligations or liability thereunder), and take or refrain from
taking any action under any thereof; and (g) in addition to the foregoing, in
order to implement the assignment, sale or other disposal of any of the
Collateral, pursuant to the authority granted in paragraph 5 hereof, execute
and deliver on behalf of Borrower, upon five (5) Business Days' prior notice
to Borrower, one or more instruments of assignment of the Patents,
Trademarks, Copyrights or Mask Works (or any application or registration
thereof), in form suitable for filing, recording or registration in any
country.
7. INDEMNIFICATION AND RELEASE.
(a) Borrower assumes all responsibility and liability arising
from the use of the Patents, Trademarks, Copyrights and Mask Works,
and Borrower hereby indemnifies and holds Agent, each other Agent
and each Lender and their respective directors, officers, employees,
agents and any of their respective Affiliates ("Indemnitees")
harmless from and against any claim, suit, loss, damage or expense
(including reasonable attorneys' fees and
I-1-8
expenses) arising out of or in connection with any alleged
infringement of any patent, trademark, service mark, trade name,
trade secret, copyright or mask work of a third party or alleged
defect in any product manufactured, promoted or sold by Borrower (or
any Affiliate of Borrower) in connection with any Patent, Trademark,
Copyright or Mask Work or out of the manufacture, promotion, labeling,
sale or advertisement of any product or service by Borrower (or any
Affiliate of Borrower); provided, however, that the foregoing indemnity
shall not extend to any use by Agent or any Lender (or any of their
respective Affiliates) of any Patent, Trademark, Copyright or Mask Work
which constitutes gross negligence or willful misconduct. Borrower
agrees that Agent, the Agent and the Lenders do not assume, and shall
have no responsibility for, the payment of any sums due or to become
due under any agreement or contract included in the Collateral or the
performance of any obligations to be performed under or with respect to
any such agreement or contract by Borrower, and Borrower hereby agrees
to indemnify and hold each Indemnitee harmless with respect to any and
all claims by any Person relating thereto.
(b) Borrower agrees to indemnify and hold the Indemnitees
harmless and against any claim, suit, loss, damage or expense
(including reasonable attorneys' fees and expenses) arising out of
or in connection with any action taken or omitted to be taken by
Agent hereunder with respect to any license agreement of Borrower,
other than actions taken or omitted to be taken through the gross
negligence or willful misconduct of such Indemnities or any breach
of this Agreement or the other Credit Documents.
(c) Borrower agrees to indemnify and hold the Indemnitees
harmless and against any claim, suit, loss, damage or expense
(including reasonable attorneys' fees and expenses) arising out of
or in connection with any claim, suit or proceeding instituted by
Borrower or in which Borrower participates.
(d) Borrower hereby releases the Indemnitees from any claims,
causes of action and demands at any time arising out of or with
respect to any actions taken or omitted to be taken by Agent under
the powers of attorney granted in paragraph 5 hereof, other than
actions taken or omitted to be taken through the gross negligence or
willful misconduct of such Indemnitees or any breach of this
Agreement or the other Credit Documents.
(e) Borrower agrees to cause Agent to be named as an additional
insured with respect to any policy of insurance held by Borrower
from time to time covering product liability or intellectual
property infringement risk.
(f) Nothing contained in this Paragraph 7 shall, however, be
deemed to require Borrower to indemnify or hold harmless any
Indemnitee
I-1-9
from any losses, costs, claims or damages arising from or relating
to such Indemnitee's gross negligence or willful misconduct.
8. MISCELLANEOUS.
(a) NOTICES. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to
or upon Borrower or Agent under this Security Agreement shall be
given as provided in Paragraph 8.01 of the Credit Agreement.
(b) WAIVERS; AMENDMENTS. Any term, covenant, agreement or
condition of this Security Agreement may be amended or waived only
as provided in the Credit Agreement. No failure or delay by Agent in
exercising any right hereunder shall operate as a waiver thereof or
of any other right nor shall any single or partial exercise of any
such right preclude any other further exercise thereof or of any
other right. Unless otherwise specified in any such waiver or
consent, a waiver or consent given hereunder shall be effective only
in the specific instance and for the specific purpose for which
given.
(c) SUCCESSORS AND ASSIGNS. This Security Agreement shall be
binding upon and inure to the benefit of Agent, Borrower and the
Lenders and their respective successors and assigns; provided,
however, that Agent, the Lenders and Borrower may sell, assign and
delegate their respective rights and obligations hereunder only as
permitted by the Credit Agreement. The Lenders and Agent may
disclose this Security Agreement as provided in the Credit Agreement.
(d) PARTIAL INVALIDITY. If at any time any provision of this
Security Agreement is or becomes illegal, invalid or unenforceable
in any respect under the law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions of
this Security Agreement nor the legality, validity or enforceability
of such provision under the law of any other jurisdiction shall in
any way be affected or impaired thereby.
(e) CUMULATIVE RIGHTS, ETC. The rights, powers and remedies of
Agent under this Security Agreement shall be in addition to all
rights, powers and remedies given to Agent and the Lenders by virtue
of any applicable Governmental Rule, the Credit Agreement, any other
Credit Document or any other agreement, all of which rights, powers,
and remedies shall be cumulative and may be exercised successively
or concurrently without impairing Agent's rights hereunder. Borrower
waives any right to require Agent or any Lender to proceed against
any Person or to exhaust any Collateral or to pursue any remedy in
Agent's or any Lender's power.
I-1-10
(f) Payments Free of Taxes, Etc. All payments made by Borrower
under this Security Agreement shall be made by Borrower free and
clear of and without deduction for any and all present and future
taxes, levies, charges, deductions and withholdings. In addition,
Borrower shall pay upon demand any stamp or other taxes, levies or
charges of any jurisdiction with respect to the execution, delivery,
registration, performance and enforcement of this Security
Agreement. Upon request by Agent, Borrower shall furnish evidence
satisfactory to Agent that all requisite authorizations and
approvals by, and notices to and filings with, governmental
authorities and regulatory bodies have been obtained and made and
that all requisite taxes, levies and charges have been paid.
(g) Borrower's Continuing Liability. Notwithstanding any
provision of this Security Agreement or any other Credit Document or
any exercise by Agent of any of its rights hereunder or thereunder
(including, without limitation, any right to collect or enforce any
Collateral), (i) Borrower shall remain liable to perform its
obligations and duties in connection with the Collateral and (ii)
neither Agent nor any Lender shall assume or be considered to have
assumed any liability to perform such obligations and duties or to
enforce any of Borrower's rights in connection with the Collateral.
(h) Governing Law. This Security Agreement shall be governed by
and construed in accordance with the laws of the State of California
without reference to conflicts of law rules (except to the extent
otherwise provided in the UCC).
I-1-11
IN WITNESS WHEREOF, Borrower and Agent have caused this Security
Agreement to be executed as of the day and year first above written.
ADAC LABORATORIES
By: ____________________________________
Name: __________________________________
Title: _________________________________
I-1-12
ATTACHMENT 1
TO SECURITY AGREEMENT
All right, title and interest of Borrower, whether now owned or
hereafter acquired, in and to the following property:
(a) All trademarks, trade names, trade styles and service marks, and
all prints and labels on which said trademarks, trade names, trade styles and
service marks have appeared or appear, and all designs and general
intangibles of like nature, now existing or hereafter adopted or acquired,
all right, title and interest therein and thereto, all registrations and
recordings thereof, including, (i) all applications, registrations and
recordings in the Patent and Trademark Office or in any similar office or
agency of the United States, any state thereof, or any foreign country or any
political subdivision thereof, all whether now owned or hereafter acquired by
Borrower, including those described in Schedule A to this Attachment 1, which
Schedule A is incorporated herein by this reference, and (ii) all reissues,
extensions or renewals thereof and all licenses thereof (collectively, the
"Trademarks");
(b) All patentable inventions, patent rights, shop rights, letters
patent of the United States or any foreign country, all right, title and
interest therein and thereto, and all registrations and recordings thereof,
including (i) all Patent Registrations and recordings in the Patent and
Trademark Office or in any similar office or agency of the United States, any
state thereof or any foreign country or political subdivision thereof, all
whether now owned or hereafter acquired by Borrower, including those
described in Schedule B to this Attachment 1, which Schedule B is
incorporated herein by this reference, and (ii) all reissues, continuations,
continuations-in-part or extensions thereof and all licenses thereof
(collectively, the "Patents");
(c) All copyrights including, without limitation, (i) all original
works of authorship fixed in any tangible medium of expression, all right,
title and interest therein and thereto, and all registrations and recordings
thereof, including all applications, registrations and recordings in the
Copyright Office or in any similar office or agency of the United States, any
state thereof, or any foreign country or any political subdivision thereof,
all whether now owned or hereafter acquired by Borrower, including those
described on Schedule C to this Attachment 1, which Schedule C is
incorporated herein by this reference, and (ii) all extensions or renewals
thereof and all licenses thereof (collectively, the "Copyrights");
(d) All mask works including all series of related images, however
fixed or encoded, in final or intermediate form, having or representing the
predetermined, three dimensional pattern of metallic, insulating, or
semiconductor material present or removed from the layers of a semiconductor
chip product, in which series the relation of the images to one another is
that each image has the
I-1[1]-1
pattern of the surface of one form of the semiconductor chip
product, and all right, title and interest therein and thereto, and
all registrations and recordings thereof, including all
applications, registrations and recordings in the Copyright Office
or in any similar office or agency of the United States, any state
thereof, or any foreign country or any political subdivision
thereof, all whether now owned or hereafter acquired by the
Borrower, including those described on Schedule D to this Attachment
1, which Schedule D is incorporated herein by this reference, and
(ii) all extensions or renewals thereof and all licenses thereof
(collectively, the "Mask Works");
(e) All goodwill of Borrower's business symbolized by the
Trademarks and all customer lists and other records of Borrower
relating to the distribution of products or provision of services
bearing or covered by the Trademarks;
(f) All proprietary information, including formulas, patterns,
compilations, programs, devices, methods, techniques or processes,
that derives independent economic value, actual or potential, from
not being generally known to, and not being readily ascertainable by
proper means by other Persons who can obtain economic value from its
disclosure or use, all whether now owned or hereafter acquired by
the Borrower (collectively, the "Trade Secrets");
(g) All claims by Borrower against any Person for past, present
or future infringement of the Patents, Trademarks, Copyrights, Mask
Works or Trade Secrets; and
(h) All proceeds of the foregoing (including whatever is
receivable or received when Collateral or proceeds is (are) sold,
collected, exchanged, licensed or otherwise disposed of, whether
such disposition is voluntary or involuntary, including rights to
payment and return premiums and insurance proceeds under insurance
with respect to any Collateral, and all rights to payment with
respect to any cause of action affecting or relating to the
Collateral).
I-1[1]-2
SCHEDULE A
TO ATTACHMENT 1
TO SECURITY AGREEMENT
TRADEMARKS AND TRADEMARK APPLICATIONS
I-1[1]-3
SCHEDULE B
TO ATTACHMENT 1
TO SECURITY AGREEMENT
PATENTS AND PATENT APPLICATIONS
I-1[1]-4
SCHEDULE C
TO ATTACHMENT 1
TO SECURITY AGREEMENT
COPYRIGHTS
Registration No. Jurisdiction Date
[NONE]
I-1[1]-5
SCHEDULE D
TO ATTACHMENT 1
TO SECURITY AGREEMENT
MASK WORKS
Registration No. Jurisdiction Date
[NONE]
I-1[1]-6
SCHEDULE E
TO ATTACHMENT 1
TO SECURITY AGREEMENT
LICENSES GRANTED BY BORROWER TO THIRD PARTIES
I-1[1]-7
SCHEDULE F
TO ATTACHMENT 1
TO SECURITY AGREEMENT
LICENSES GRANTED BY THIRD PARTIES TO BORROWER
I-1[1]-8
ATTACHMENT 2
TO SECURITY AGREEMENT
[SEPARATE INSTRUMENT FOR
EACH FORM OF COLLATERAL]
GRANT OF SECURITY INTEREST
[TRADEMARKS][COPYRIGHTS][MASK WORKS]
THIS GRANT OF SECURITY INTEREST, dated as of September [A], 1999 is
executed by ADAC LABORATORIES, a California corporation ("Borrower"), in
favor of ABN AMRO BANK N.V., a Netherlands public company acting through
its San Francisco Representative Office, acting as agent (in such capacity,
"Agent") for the financial institutions which are from time to time parties
to the Credit Agreement referred to in Recital A below (collectively, the
"Lenders").
A. Pursuant to an Amended and Restated Credit Agreement, dated as of
March 29, 1999 (as amended from time to time, the "Credit Agreement"),
among Borrower, the Lenders and Agent, the Lenders have agreed to extend
certain credit facilities to Borrower upon the terms and subject to the
conditions set forth therein.
[B. Borrower has adopted, used and is using the trademarks, more
particularly described on Schedules 1-A and 1-B annexed hereto and made a
part hereof, which trademarks are registered or subject to an application
for registration in the United States Patent and Trademark Office
(collectively, the "Trademarks").]
[B. Borrower owns the copyrights registered in the United States
Copyright Office, more particularly described on Schedule 1-A annexed
hereto and made a part hereof (collectively, the "Copyrights").]
[B. Borrower owns the mask works registered in the United States
Copyright Office, more particularly described on Schedule 1-A annexed
hereto and made a part hereof (collectively, the "Mask Works").]
C. Borrower has entered into a Security Agreement (Intellectual
Property) dated the date hereof (the "Security Agreement") in favor of
Agent (for the ratable benefit of the Lenders and Agent).
[D. Pursuant to the Security Agreement, Borrower has granted to Agent
(for the ratable benefit of the Lenders and Agent) a security interest in
all right, title and interest of Borrower in and to the Trademarks,
together with the goodwill of the business symbolized by the Trademarks and
the customer lists and records related to the Trademarks and the
applications and registrations thereof, and all proceeds thereof, including
any and all causes of action which may exist by reason
I-1[2]-1
of infringement thereof (the "Collateral"), to secure the payment,
performance and observance of the Secured Obligations, as defined in the
Security Agreement.]
[D. Pursuant to the Security Agreement, Borrower has granted to Agent
(for the ratable benefit of the Lenders and Agent) a security interest in
all right, title and interest of Borrower in and to the Copyrights and the
registrations thereof, together with any renewals or extensions thereof,
and all proceeds thereof, including any and all causes of action which may
exist by reason of infringement thereof for the full term of the Copyrights
(the "Collateral"), to secure the prompt payment, performance and
observance of the Secured Obligations, as defined in the Security
Agreement.]
[D. Pursuant to the Security Agreement, Borrower has granted to Agent
(for the ratable benefit of the Lenders and Agent) a security interest in
all right, title and interest of Borrower in and to the Mask Works and the
registrations thereof, together with any renewals or extensions thereof,
and all proceeds thereof, including any and all causes of action which may
exist by reason of infringement thereof for the full term of the Mask Works
(the "Collateral"), to secure the prompt payment, performance and
observance of the Secured Obligations, as defined in the Security
Agreement.]
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, Borrower does hereby further grant to Agent a
security interest in the Collateral to secure the prompt payment,
performance and observance of the Secured Obligations.
Borrower does hereby further acknowledge and affirm that the rights
and remedies of Agent with respect to the security interest in the
Collateral granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are hereby incorporated herein
by reference as if fully set forth herein.
Agent's address is:
ABN AMRO BANK N.V.
c/o ABN AMRO North America, Inc.
101 California Street, Suite 4550
San Francisco, CA 94111-5812
Attn: Maria Vickroy Peralta
Telephone: (415) 984-3704
Fax No.: (415) 362-3524
I-1[2]-2
IN WITNESS WHEREOF, Borrower has caused this Agreement to be executed
as of the day and year first above written.
ADAC LABORATORIES
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
I-1[2]-3
STATE OF CALIFORNIA )
)
COUNTY OF )
On, ____________ before me, ____________________, personally appeared
_________________________________, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in her/her/their authorized capacity(ies),
and that by his/her/their signature(s) on such instrument the person or
entity on behalf of which the person(s) acted executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
I-1[2]-4
SCHEDULE 1-A TO GRANT OF SECURITY INTEREST
TRADEMARKS
SCHEDULE 1-B TO GRANT OF SECURITY INTEREST
TRADEMARK APPLICATIONS
Mark Application Date Application No.
I-1[2]-5
SCHEDULE 1-A TO GRANT OF SECURITY INTEREST
COPYRIGHTS
Description Registration Date Registration No.
SCHEDULE 1-A TO GRANT OF SECURITY INTEREST
MASK WORKS
Description Registration Date Registration No.
I-1[2]-6
ATTACHMENT 3
TO SECURITY AGREEMENT
GRANT OF SECURITY INTEREST
(PATENTS)
THIS GRANT OF SECURITY INTEREST, dated as of September [A], 1999 is
executed by ADAC LABORATORIES, a California corporation ("Borrower"), in
favor of ABN AMRO BANK N.V., a Netherlands public company acting through
its San Francisco Representative Office, acting as agent (in such capacity,
"Agent") for the financial institutions which are from time to time parties
to the Credit Agreement referred to in Recital A below (collectively, the
"Lenders").
A. Pursuant to an Amended and Restated Credit Agreement, dated as of
August 17, 1999 (as amended from time to time, the "Credit Agreement"),
among Borrower, the Lenders and Agent, the Lenders have agreed to extend
certain credit facilities to Borrower upon the terms and subject to the
conditions set forth therein.
B. Borrower owns the letters patent, and/or applications for letters
patent, of the United States and certain foreign countries, more
particularly described on Schedules 1-A and 1-B annexed hereto and made a
part hereof (collectively, the "Patents").
C. Borrower has entered into a Security Agreement (Intellectual
Property) dated the date hereof (the "Security Agreement") in favor of
Agent (for the ratable benefit of the Lenders and Agent).
D. Pursuant to the Security Agreement, Borrower has assigned and
granted to Agent (for the ratable benefit of the Lenders and Agent) a
security interest in all right, title and interest of Borrower in and to
the Patents, together with any reissue, continuation, continuation-in-part
or extension thereof, and all proceeds thereof, including any and all
causes of action which may exist by reason of infringement thereof (the
"Collateral"), to secure the prompt payment, performance and observance of
the Secured Obligations, as defined in the Security Agreement;
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, Borrower does hereby further assign, transfer and
convey unto Agent and grant to Agent a security interest in the Collateral
to secure the prompt payment, performance and observance of the Secured
Obligations.
Borrower does hereby further acknowledge and affirm that the rights
and remedies of Agent with respect to the assignment of and security
interest in the
I-1[3]-1
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are hereby incorporated herein
by reference as if fully set forth herein.
Agent's address is:
ABN AMRO BANK N.V.
c/o ABN AMRO North America, Inc.
101 California Street, Suite 4550
San Francisco, CA 94111-5812
Attn: Maria Vickroy Peralta
Telephone: (415) 984-3704
Fax No.: (415) 362-3524
IN WITNESS WHEREOF, Borrower has caused this Agreement to be executed
as of the day and year first above written.
ADAC LABORATORIES
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
I-1[3]-2
STATE OF CALIFORNIA )
)
COUNTY OF )
On _________, ___________ before me, ___________________, personally
appeared _____________________________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in her/her/their authorized
capacity(ies), and that by his/her/their signature(s) on such instrument
the person or entity on behalf of which the person(s) acted executed the
instrument.
WITNESS my hand and official seal.
Signature (Seal)
I-1[3]-3
SCHEDULE 1-A TO GRANT OF SECURITY INTEREST
PATENTS
SCHEDULE 1-B TO GRANT OF SECURITY INTEREST
PATENT APPLICATIONS
Application No.
I-1[3]-4
ATTACHMENT 4
TO SECURITY AGREEMENT
SPECIAL POWER OF ATTORNEY
STATE OF CALIFORNIA )
) ss.:
COUNTY OF )
KNOW ALL PERSONS BY THESE PRESENTS, THAT ADAC LABORATORIES, a
California corporation ("Borrower"), pursuant to a Security Agreement
(Intellectual Property), dated the date hereof (the "Security Agreement"),
between Borrower and ABN AMRO BANK N.V., as agent (for the ratable benefit
of the Lenders and Agent) (jointly in such capacities, "Agent") under that
certain Amended and Restated Credit Agreement dated as of March 29, 1999
(as amended from time to time, the "Credit Agreement") among Borrower, the
Lenders and Agent, hereby appoints and constitutes Agent its true and
lawful attorney in fact, with full power of substitution, and with full
power and authority to perform the following acts on behalf of Borrower
following the occurrence and during the continuation of an Event of Default
(as defined in the Credit Agreement):
1. For the purpose of assigning, selling, licensing or otherwise
disposing of all right, title and interest of Borrower in and to any
letters patent of the United States or any other country or political
subdivision thereof, and all registrations, recordings, reissues,
continuations, continuations-in-part and extensions thereof, and all
pending applications therefor, and for the purpose of the recording,
registering and filing of, or accomplishing any other formality with
respect to, the foregoing, to execute and deliver any and all agreements,
documents, instruments of assignment or other papers necessary or advisable
to effect such purpose;
2. For the purpose of assigning, selling, licensing or otherwise
disposing of all right, title and interest of Borrower in and to any
trademarks, trade names, trade styles and service marks, and all
registrations, recordings, reissues, extensions and renewals thereof, and
all pending applications therefor, and for the purpose of the recording,
registering and filing of, or accomplishing any other formality with
respect to, the foregoing, to execute and deliver any and all agreements,
documents, instruments of assignment or other papers necessary or advisable
to effect such purpose;
3. For the purpose of assigning, selling, licensing or otherwise
disposing of all right, title and interest of Borrower in and to any
copyrights, and all registrations, recordings, reissues, extensions and
renewals thereof, and all pending
I-1[4]-1
applications therefor, and for the purpose of the recording, registering
and filing of, or accomplishing any other formality with respect to, the
foregoing, to execute and deliver any and all agreements, documents,
instruments of assignment or other papers necessary or advisable to effect
such purpose;
4. For the purpose of assigning, selling, licensing or otherwise
disposing of all right, title and interest of Borrower in and to any mask
works, and all registrations, recordings, reissues, extensions and renewals
thereof, and all pending applications therefor, and for the purpose of the
recording, registering and filing of, or accomplishing any other formality
with respect to, the foregoing, to execute and deliver any and all
agreements, documents, instruments of assignment or other papers necessary
or advisable to effect such purpose;
5. For the purpose of evidencing and perfecting Agent's interest in
any patent, trademark, copyright or mask work not previously assigned to
Agent as security, or in any patent, trademark, copyright or mask work,
which Borrower may acquire from a third party, and for the purpose of the
recording, registering and filing of, or accomplishing any other formality
with respect to, the foregoing, to execute and deliver any and all
agreements, documents, instruments of assignment or other papers necessary
or advisable to effect such purpose.
6. To execute any and all documents, statements, certificates or other
papers necessary or advisable in order to obtain the purposes described
above as Agent may in its reasonable discretion determine.
This power of attorney is made pursuant to the Security Agreement and
takes effect solely for the purposes of thereof and is subject to the
conditions thereof and may not be revoked until termination of the Security
Agreement as provided therein.
Dated: September [A], 1999
ADAC LABORATORIES
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
I-1[4]-2
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On __________, ______________ before me, _______________, personally
appeared ________________________, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in her/her/their authorized capacity(ies),
and that by his/her/their signature(s) on such instrument the person or
entity on behalf of which the person(s) acted executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
