EXHIBIT 10.6
SECURITY AGREEMENT
(INTELLECTUAL PROPERTY)
THIS SECURITY AGREEMENT (INTELLECTUAL PROPERTY) ("Security
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Agreement"), dated as of June 13, 1997, is executed by Cardiac Control Systems,
Inc., a Delaware corporation ("Borrower"), in favor of Coast Business Credit(R),
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a division of Southern Pacific Thrift & Loan Association ("Lender").
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RECITALS
A. Pursuant to a Loan and Security Agreement dated as of the date
hereof ("Loan Agreement") between Borrower and Lender, Lender has agreed to
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extend certain credit facilities to Borrower upon the terms and subject to the
conditions set forth therein.
B. Lender's obligation to extend the credit facilities to Borrower
under the Loan Agreement is subject, among other conditions, to receipt by
Lender 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 Lender as follows:
1. Definitions and Interpretation. When used in this Security
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Agreement, the following terms shall have the following respective meanings:
"Collateral" shall have the meaning given to that term in
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Paragraph 2 hereof.
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"Copyright Office" shall mean the United States Copyright Office
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or any successor office or agency thereto.
"Copyrights" shall have the meaning given to that term in
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Attachment I hereto.
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"Mask Works" shall have the meaning given to that term in
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Attachment I hereto.
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"Obligations" shall mean and include all loans, advances, debts,
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liabilities and obligations, howsoever arising, owed by Borrower to Lender
of every kind and description (whether or not evidenced by any note or
instrument and whether or not for the payment of money), direct or
indirect, absolute or contingent, due or to become due,
now existing or hereafter arising pursuant to the terms of the Loan
Agreement or any of the other Loan Documents, including all interest, fees,
charges, expenses, attorneys' fees and accountants' fees chargeable to and
payable by Borrower hereunder and thereunder.
"Patent and Trademark Office" shall mean the United States Patent
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and Trademark Office or any successor office or agency thereto.
"Patent Applications" means and refers to all applications made
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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" means and refers to all Patents registered
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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
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I hereto.
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"Trade Secrets" shall have the meaning given to that term in
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Attachment I hereto.
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"Trademarks" shall have the meaning given to that term in
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Attachment I hereto.
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"UCC" shall mean the Uniform Commercial Code as in effect in the
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State of California from time to time.
Unless otherwise defined herein, all other capitalized terms used
herein and defined in the Loan Agreement shall have the respective meanings
given to those terms in the Loan Agreement, and all terms defined in the UCC
shall have the respective meanings given to those terms in the UCC.
2. Grant of Security Interest; Conditional Assignment.
(a) As security for the Obligations, Borrower hereby pledges and
grants to Lender a security interest in all right, title and interest of
Borrower in and to the property described in Attachment I annexed hereto
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(collectively and severally, the "Collateral"), which Attachment I is
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incorporated herein by this reference.
(b) Any assignment, transfer and conveyance of any Trademark to
Lender shall be deemed to have occurred with a contemporaneous assignment,
transfer and conveyance to Lender of the goodwill, business and/or means of
production, associated with the goods produced or sold or the services
rendered in connection with such Trademark.
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3. Representations and Warranties. Borrower represents and warrants to Lender
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that:
(a) Borrower is the owner of the Collateral (or, in the case of
after-acquired Collateral, at the time Borrower acquires rights in the
Collateral, will be the owner thereof) and that 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 or
otherwise) in, against or to the Collateral;
(b) Lender 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;
(c) Borrower has full corporate power and authority to make the
conditional assignment and to grant the security interest herein granted;
(d) Borrower does not own any Patents, Trademarks, Copyrights or
Mask Works registered in, or the subject of pending applications in, the
Patent and Trademark Office or the Copyright Office or any similar offices
or agencies in any other country or any political subdivision thereof,
other than those described in Schedules A - F to Attachment I hereto;
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(e) Borrower has:
(i) the sole, full and unencumbered right, title and
interest in and to the Trademarks shown on Schedule A to Attachment I
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for the goods and services covered by the registrations thereof and
such registrations are valid and enforceable and in full force and
effect;
(ii) the sole, full and unencumbered right, title and
interest in and to each of the Patents shown on Schedule B to
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Attachment I, and the registrations thereof are valid and enforceable
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and in full force and effect;
(iii) the sole, full and unencumbered right, title and
interest in and to each of the Copyrights shown on Schedule E to
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Attachment I, and according to the records of the Copyright Office,
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each of said copyrights is valid and enforceable and in full force and
effect;
(iv) the sole, full and encumbered right, title and
interest in and to the Mask Works shown on Schedule F to Attachment I,
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and according to the records of the Copyright Office, each of said
Mask Works is valid and enforceable and in full force and effect;
(f) There is no claim by any third party that any Patents,
Trademarks, Copyrights or Mask Works are invalid or unenforceable or do or
may violate the rights of any Person;
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(g) All licenses of Patents, Trademarks, Copyrights, Mask Works
and Trade Secrets which Borrower has granted to any Person are set forth in
Schedule G to Attachment I hereto;
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(h) All licenses of Patents, Trademarks, Copyrights, Mask Works
and Trade Secrets which any Person has granted to Borrower are set forth in
Schedule H to Attachment I hereto;
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(i) Borrower has obtained from each employee who may be
considered the inventor of patentable inventions (invented within the scope
of such employee's employment) an assignment to Borrower of all rights to
such inventions, including Patents; and
(j) Borrower has taken all steps necessary to protect the
secrecy and the validity under applicable law of all material Trade
Secrets.
4. Covenants of Borrower. Borrower hereby agrees:
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(a) Borrower will perform all acts and execute all documents,
including 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 form of Attachment II (appropriately revised) annexed hereto, that may
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be necessary or desirable to record, maintain, preserve, protect and
perfect Lender's interest in the Collateral, the Lien granted to Lender in
the Collateral and the first priority of such Lien;
(b) Except to the extent that Lender shall give its prior
written consent,
(i) Borrower (either itself or through licensees) will
continue to use the Trademarks 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 the 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 any
Trademark may become invalidated;
(ii) Borrower will not do any act or omit to do any act
whereby the Patent Registrations may become abandoned or dedicated or
the remedies available against potential infringers weakened and shall
notify Lender immediately if it knows of any reason or has reason to
know that any Patent Registration may become abandoned or dedicated;
(iii) Borrower will not do any act or omit to do any act
whereby the Copyrights or Mask Works may become abandoned or dedicated
or the
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remedies available against potential infringers weakened and shall
notify Lender immediately if it knows of any reason or has reason to
know that any Copyright or Mask Work may become abandoned or
dedicated; and
(iv) Borrower will not assign, sell, mortgage, lease,
transfer, pledge, hypothecate, grant a security interest in or Lien
upon, encumber, grant an exclusive or non-exclusive license, or
otherwise dispose of any of the Collateral, and nothing in this
Security Agreement shall be deemed a consent by Lender to any such
action except as expressly permitted herein;
(c) Except as may be expressly limited by the Loan Agreement,
Borrower will promptly pay Lender for any and all sums, costs, and expenses
which Lender may pay or incur pursuant to the provisions of this Security
Agreement or in enforcing the Obligations, the Collateral or the security
interest and assignments granted hereunder, including all filing or
recording fees, court costs, collection charges, travel, and reasonable
attorneys' fees and expenses, all of which together with interest at the
highest rate then payable on the Obligations shall be part of the
Obligations and be payable on demand;
(d) Borrower will promptly notify Lender 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. Upon the request of Lender, Borrower
shall execute and deliver any and all assignments, agreements, instruments,
documents and papers as Lender may request to evidence Lender's interest in
such Patent, Trademark (and the goodwill and general intangibles of
Borrower relating thereto or represented thereby), Copyright or Mask Work,
and Borrower authorizes Lender to amend an original counterpart of the
applicable notice of security interest executed pursuant to Subparagraph
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4(a) of this Security Agreement without first obtaining Borrower's approval
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of or signature to such amendment and to record such assignment with the
Patent and Trademark Office or Copyright Office, as applicable;
(e) Borrower will keep the Collateral free of all Liens, except
in favor of Lender;
(f) Borrower will take all necessary 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
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applicable, each application and registration of the 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, abandonment
or invalidation is permitted hereunder);
(g) During the term of the Loan Agreement, Borrower shall (i)
make application to the Patent and Trademark Office (and assign such
application to Lender as security) 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;
and (iii) make application to the Copyright Office to register any material
unregistered Copyright or Mask Work to which Borrower has rights;
(h) Borrower shall (i) use proper statutory notice in connection
with its use of the Patents, 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 steps necessary to protect the secrecy and
the validity under applicable law of all material Trade Secrets;
(i) Borrower agrees that if it or any Affiliate, learns of any
use by any Person of any term or design likely to cause confusion with any
Trademark, Borrower shall promptly notify Lender of such use and of all
steps taken and to be taken to remedy any infringement of any Trademark;
(j) Borrower shall maintain with each employee who may have
access to the 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
Lender, 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;
(k) Borrower shall at all times keep at least one complete set
of its records concerning the Collateral at its chief executive office and
shall make such records available for inspection by Lender in accordance
with the terms of the Loan Agreement.
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5. Authorized Action by Lender.
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(a) Lender may, in its sole discretion, pay any amount or do any
act required of Borrower hereunder or requested by Lender to preserve,
defend, protect, maintain, record or enforce Borrower's obligations
contained herein, the Obligations, the Collateral, or the right, title and
interest granted Lender by this Security Agreement, and which Borrower
fails to do or pay, and any such payment shall be deemed an advance by
Lender to Borrower and shall be payable on demand together with interest at
the highest rate then payable on the Obligations.
(b) Borrower agrees to execute and deliver to Lender three
originals of a Special Power of Attorney in substantially the form of
Attachment III to this Agreement for the implementation of the recording,
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giving of notice, preservation, assignment, sale or other disposal of the
Collateral pursuant to Subparagraphs 2(a), 2(b), 5(a) and 7(a).
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(c) Borrower hereby grants to Lender and its employees and
agents the right to visit Borrower's business facilities at which Borrower
manufactures products or provides services, which products or services are
sold under or provided in connection with any of the Trademarks, and to
inspect such products and the quality control records relating thereto or
observe the provision of such services.
6. Litigation and Other Proceedings
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(a) Borrower shall have the right and obligation to commence and
diligently prosecute such suits, proceedings or other actions for
infringement or other damage, or reexamination or reissue proceedings, or
opposition or cancellation proceedings as are reasonable to protect any of
the Patents, Trademarks, Copyrights, Mask Works or Trade Secrets. No such
suit, proceeding or other actions shall be settled or voluntarily
dismissed, nor shall any party be released or excused of any claims of or
liability for infringement, without the prior written consent of Lender,
which consent shall not be unreasonably withheld.
(b) Upon the occurrence and during the continuation of an Event
of Default, Lender shall have the right but not the obligation to bring
suit or institute proceedings in the name of Borrower or Lender to enforce
any rights in the Collateral, including any license thereunder, in which
event Borrower shall at the request of Lender do any and all lawful acts
and execute any and all documents required by Lender in aid of such
enforcement. If Lender elects not to bring suit to enforce any right under
the Collateral, including any license thereunder, Borrower agrees to use
all reasonable measures, whether by suit, proceeding or other action, to
prevent the infringement of any right under the Collateral by any Person
and for that purpose agrees to diligently maintain any action, suit or
proceeding against any Person so infringing necessary to prevent such
infringement.
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7. Default and Remedies.
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(a) Borrower shall be deemed in default under this Security
Agreement upon the occurrence of an Event of Default, as that term is
defined in the Loan Agreement. Upon the occurrence and during the
continuation of any such Event of Default, Lender may, at its option, and
(except if otherwise specified below) without notice to or demand on
Borrower, and in addition to all rights and remedies available to Lender
under the Loan Agreement or the other Loan Documents, do any one or more of
the following:
(i) upon ten (10) days' prior notice to Borrower, direct
Borrower not to make any further use of the Patents, the Trademarks
(or any xxxx similar thereto), the Copyrights (or any work deriving
therefrom), or the Mask Works for any purpose;
(ii) at any time and from time to time, upon ten (10)
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 Lender shall in its sole discretion determine;
(iii) at any time and from time to time, 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;
(iv) at any time and from time to time, upon ten (10)
days' prior notice to Borrower, assign, sell, or otherwise dispose of,
the Collateral or any of it, either with or without special or other
conditions or stipulations, with power to buy the Collateral or any
part of it, and with power also to execute assurances, and do all
other acts and things for completing the assignment, sale or
disposition which Lender shall, in its sole discretion, deem
appropriate or proper; and
(v) in addition to the foregoing, in order to implement
the assignment, sale or other disposal of any of the Collateral
pursuant to clause (a)(iv) hereof, Lender may, at any time, pursuant
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to the authority granted in the Power of Attorney executed pursuant to
Subparagraph 5(b) hereof, execute and deliver on behalf of Borrower,
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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.
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(b) Borrower agrees to pay when due all reasonable costs
incurred in any such transfer of the Patents, Trademarks, Copyrights or
Mask Works, including any taxes, fees and reasonable attorneys' fees and
expenses, and all such costs shall be added to the Obligations. Lender may
apply the proceeds actually received from any such license, assignment,
sale or other disposition to the reasonable costs and expenses thereof,
including reasonable attorneys' fees and all legal, travel and other
expenses which may be incurred by Lender, and then to the Obligations, in
such order as to principal or interest as Lender may desire; and Borrower
shall remain liable and will pay Lender on demand any deficiency remaining,
together with interest thereon at a rate equal to the highest rate then
payable on the Obligations and the balance of any expenses unpaid. Nothing
herein contained shall be construed as requiring Lender to take any such
action at any time. In the event of any such license, assignment, sale or
other disposition of the Collateral, or any of it, after the occurrence or
continuation as hereinabove provided of an Event of Default, Borrower shall
supply its know-how and expertise relating to the manufacture and sale of
the products bearing or in connection with which the Trademarks, Patents,
Copyrights or Mask Works are used, and its customer lists and other records
relating to the Trademarks, Patents, Copyrights or Mask Works and to the
distribution of products or the provisions of services, to Lender or its
designee.
8. Indemnification and Release.
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(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 Lender and its respective directors,
officers, employees, agents and any of their respective Affiliates
("Indemnitees") harmless from and against any claim, suit, loss, damage or
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expense (including reasonable attorneys' fees and expenses) arising out of
or in connection with any alleged infringement of any patent, trademark,
service xxxx, 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). Borrower agrees that Lender does not assume,
nor shall Lender have any 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 each Indemnitee
harmless and against any claim, suit, loss, damage or expense (including
reasonable attorneys' fees and expenses) arising out of or in connection
with (i) any claim, suit or proceeding instituted by or against Borrower,
(ii) any action taken or omitted to be taken by Lender pursuant to
Subparagraph 6(b), or (iii) any action taken or omitted to be taken by
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Lender pursuant to clause 7(a)(iii) hereof with respect to any license
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agreement of Borrower;
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provided, however, that Borrower shall not be required to indemnify any
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Indemnitee to the extent such liability arises from the willful misconduct
or gross negligence of such Indemnitee.
(c) Borrower hereby releases each Indemnitee 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 the Indemnitees, or any of
them, under the powers of attorney granted under the Special Power of
Attorney executed pursuant to Subparagraph 5(b) herein, other than actions
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taken or omitted to be taken through the gross negligence or willful
misconduct of such Indemnitees.
(d) Borrower agrees to cause Lender 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.
9. Miscellaneous.
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(a) Notices. Except as otherwise provided herein, all notices,
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requests, demands, consents, instructions or other communications to or
upon Borrower or Lender under this Security Agreement shall be made and
deemed received in accordance with the Loan Agreement.
(b) Nonwaiver. No failure or delay on Lender's part in
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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.
(c) Amendments and Waivers. Except with respect to action by
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the Lender pursuant to Subparagraph 4(d), this Security Agreement may not
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be amended or modified, nor may any of its terms be waived, except by
written instruments signed by Borrower and Lender as required by the Loan
Agreement. Each waiver or consent under any provision hereof shall be
effective only in the specific instances and for the purpose for which
given.
(d) Assignments. This Security Agreement shall be binding upon
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and inure to the benefit of Lender and Borrower and their respective
successors and assigns; provided, however, that Borrower and Lender may
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sell, assign and delegate their respective rights and obligations hereunder
only as permitted by the Loan Agreement.
(e) Cumulative Rights, etc. The rights, powers and remedies of
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Lender under this Security Agreement shall be in addition to all rights,
powers and remedies given to Lender by virtue of any applicable law, rule
or regulation of any Governmental Authority, the Loan Agreement, any other
Credit Document or any other agreement, all of which rights, powers, and
remedies shall be cumulative and may be exercised successively
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or concurrently without impairing Lender's rights hereunder. Borrower
waives any right to require Lender to proceed against any Person or to
exhaust any Collateral or to pursue any remedy in Lender's power.
(f) Payments Free of Taxes, Etc. All payments made by Borrower
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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 Lender, Borrower
shall furnish evidence satisfactory to Lender 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) Partial Invalidity. If any time any provision of this
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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.
(h) Governing Law. This Security Agreement shall be governed by
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and construed in accordance with the laws of the State of California
without reference to conflicts of law rules.
(i) Submission to Jurisdiction. Borrower hereby irrevocably and
--------------------------
unconditionally:
(i) Submits for itself and its property in any legal
action or proceeding relating to this Security Agreement, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive jurisdiction of the courts of the State of California
and the courts of the United States of America for the County of Los
Angeles, and consents and agrees to suit being brought in such courts
as Lender may elect;
(ii) Waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court
or that such proceeding was brought in an inconvenient court and
agrees not to plead or claim the same; and
(iii) Waives personal service of the summons, complaint and
other process issued in any such action or suit and agrees that
service of such summons, complaint and other process may be made by
registered or certified mail addressed to Borrower at the address set
forth in the Loan Agreement and that
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service so made shall be deemed completed upon the earlier of
Borrower's actual receipt thereof or 3 business days after deposit in
the U.S. Mails, proper postage prepaid. Nothing in this Security
Agreement shall be deemed or operate to affect the right of Lender to
serve legal process in any other manner permitted by law, or to
preclude the enforcement by Lender of any judgment or order obtained
in such forum or the taking of any action under this Security
Agreement to enforce same in any other appropriate forum or
jurisdiction.
(j) Jury Trial. EACH OF BORROWER AND LENDER, AND TO THE FULLEST
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EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT.
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IN WITNESS WHEREOF, Borrower has caused this Security Agreement to be
executed as of the day and year first above written.
CARDIAC CONTROL SYSTEMS, INC.
By /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: President & CEO
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COAST BUSINESS CREDIT, a division of Southern
Pacific Thrift & Loan Association
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
--------------------------------
Title: Vice President
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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STATE OF CALIFORNIA )
) ss.
COUNTY OF_____________)
On ____________, 199___ , before me,__________________________________________
(Name and Title of Officer)
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 his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
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Signature Of Notary
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OPTIONAL
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
[_] Individual
[_] Corporate Officer
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Title(s) Title Or Type Of Document
[_] Partner(s) [_] Limited
[_] General
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Number
[_] Attorney-In-Fact Of Pages
[_] Trustee(s)
[_] Guardian/Conservator
[_] Other:
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Date Of Document
Signer is representing:
Name Of Person(s) Or Entity(ies)
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Signer(s) Other Than Named Above
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ATTACHMENT I
TO SECURITY AGREEMENT
(a) All copyrights including (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 E to this Attachment I annexed hereto, which
-------------------------------
Schedule E is incorporated herein by this reference, and (ii) all
----------
extensions or renewals thereof and all licenses thereof (collectively, the
"Copyrights");
----------
(b) All patentable inventions, patent rights, shop rights,
letters patent of the United States or any other 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 Schedules B and D to this Attachment
------------------------------------
I annexed hereto, which Schedules B and D are 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 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 Schedules A
-----------
and C to this Attachment I, which Schedules A and C are incorporated herein
-------------------------- -----------------
by this reference, and (ii) all reissues, extensions or renewals thereof
and all licenses thereof (collectively, the "Trademarks");
----------
(d) 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;
(e) All mask works including all series of related images,
however fixed or encoded, in final or intermediate form, having or
representing the predetermined, three
I-1
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 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 F
----------
to this Attachment I annexed hereto, which Schedule F is incorporated
-------------------- ----------
herein by this reference, and (ii) all extensions or renewals thereof and
all licenses thereof (collectively, the "Mask Works").
----------
(f) All 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;
(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-2
SCHEDULE A TO ATTACHMENT I
TO SECURITY AGREEMENT
TRADEMARKS
Trademark Jurisdiction Reg. Date Reg. No.
--------- ------------ --------- --------
None.
A-I-1
SCHEDULE B TO ATTACHMENT I
TO SECURITY AGREEMENT
PATENTS
Title Date Issued Patent No.
----- ----------- ----------
Pacemaker Catheter Utilizing Bipolar 5,127,403
Electrodes Spaced in Accordance to the
Length of a Heart Depolarization Signal
Self-Sealing Connector for Electrical 4,907,592
Leads for Use in Wet Environments
Cardiac Pacer with Switching Circuit 4,726,379
for Isolation
Pacemaker Catheter 4,962,767
Process for Polymer Coating Electrical 4,497,849
Conductors
B-I-1
SCHEDULE C TO ATTACHMENT I
TO SECURITY AGREEMENT
APPLICATIONS FOR TRADEMARKS
Trademark Jurisdiction Date Filed Registration No.
--------- ------------ ---------- ----------------
None.
C-I-1
SCHEDULE D TO ATTACHMENT I
TO SECURITY AGREEMENT
PATENT APPLICATIONS
Title Jurisdiction Application Date Application No.
----- ------------ ---------------- ---------------
Lead Fixation Device or Suture
Sleeve
Atrial "J" Lead
Improved Cardiac Pacing and
Sensing Using Extra-Cardiac
Indifferent Electrode
Configurations
Suppression of Far-Field
Interference Signals for
Implantable Device Data
Transmission Systems
Performed (Shaped) Single
Lead Pacemaker Systems
Performed (Shaped) Single
Lead Pacemaker Systems
Active Fixation of a Lead
D-I-1
SCHEDULE E TO ATTACHMENT I
TO SECURITY AGREEMENT
COPYRIGHTS
Registration No. Jurisdiction Date
---------------- ------------ ----
None.
E-I-1
SCHEDULE F TO ATTACHMENT I
TO SECURITY AGREEMENT
MASK WORKS
Registration No. Jurisdiction Date
---------------- ------------ ----
None.
F-I-1
SCHEDULE G TO ATTACHMENT I
TO SECURITY AGREEMENT
LICENSES GRANTED BY BORROWER TO THIRD PARTIES
None.
G-I-1
SCHEDULE H TO ATTACHMENT I
TO SECURITY AGREEMENT
LICENSES GRANTED BY THIRD PARTIES TO BORROWER
None.
H-I-1
ATTACHMENT II TO SECURITY AGREEMENT
[SEPARATE INSTRUMENT FOR
EACH FORM OF COLLATERAL]
GRANT OF SECURITY INTEREST
[PATENTS][TRADEMARKS][COPYRIGHTS][MASK WORKS]
THIS GRANT OF SECURITY INTEREST, dated as of June ____, 1997, is
executed by Cardiac Control Systems, Inc., a Delaware corporation ("Borrower"),
--------
in favor of Coast Business Credit(R), a division of Southern Pacific Thrift &
Loan Association ("Lender").
------
A. Pursuant to a Loan and Security Agreement dated as of the date
hereof ("Loan Agreement") between Borrower and Lender, Lender 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, more particularly described on Schedules 1-A and
-----------------
1-B annexed hereto as part hereof (collectively, the "Patents");]
--- -------
[B. Borrower has adopted, used and is using the trademarks, more
particularly described on Schedules 1-A and 1-B annexed hereto as 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 as
------------
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 as
------------
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 Lender;
------------------
and
[D. Pursuant to the Security Agreement, Borrower has granted to
Lender 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 for the full term of
II-1
the Patents (the "Collateral"), to secure the prompt payment, performance and
----------
observance of the Obligations, as defined in the Security Agreement;
[D. Pursuant to the Security Agreement, Borrower has granted to
Lender 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 of infringement thereof (the
"Collateral"), to secure the payment, performance and observance of the
----------
Obligations, as defined in the Security Agreement;]
[D. Pursuant to the Security Agreement, Borrower has granted to
Lender 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 Obligations, as defined in the Security Agreement;]
[D. Pursuant to the Security Agreement, Borrower has granted to
Lender 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 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 Lender a security
interest in the Collateral to secure the prompt payment, performance and
observance of the Obligations.
Borrower does hereby further acknowledge and affirm that the rights
and remedies of Lender 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.
II-2
Lender's address is:
Coast Business Credit,
a division of Southern Pacific Thrift & Loan Association
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Manager
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
IN WITNESS WHEREOF, Borrower has caused this Assignment to be executed
as of the day and year first above written.
CARDIAC CONTROL SYSTEMS, INC.
By:
---------------------------------
Name:
-----------------------------
Title:
----------------------------
II-3
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
--------------------------------------------------------------------------------
STATE OF CALIFORNIA )
) ss.
COUNTY OF_____________)
On ____________, 199___ , before me,__________________________________________
(Name and Title of Officer)
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 his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
-----------------------------------------
Signature Of Notary
--------------------------------------------------------------------------------
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
[_] Individual
[_] Corporate Officer
------------------------------------ ------------------------------------
Title(s) Title Or Type Of Document
[_] Partner(s) [_] Limited
[_] General
------------------------------------
Number
[_] Attorney-In-Fact Of Pages
[_] Trustee(s)
[_] Guardian/Conservator
[_] Other:
------------------------------ ------------------------------------
Date Of Document
Signer is representing:
Name Of Person(s) Or Entity(ies)
------------------------------------
Signer(s) Other Than Named Above
-----------------------------------------
-----------------------------------------
--------------------------------------------------------------------------------
SCHEDULE 1-A TO GRANT OF SECURITY INTEREST
PATENTS
Title Date Issued Patent No.
----- ----------- ----------
Pacemaker Catheter Utilizing 5,127,403
Bipolar Electrodes Spaced in
Accordance to the Length of a
Heart Depolarization Signal
Self-Sealing Connector for 4,907,592
Electrical Leads for Use in
Wet Environments
Cardiac Pacer with Switching 4,726,379
Circuit for Isolation
Pacemaker Catheter 4,962,767
Process for Polymer Coating 4,497,849
Electrical Conductors
I-A-1
SCHEDULE 1-B TO GRANT OF SECURITY INTEREST
PATENT APPLICATIONS
Title Jurisdiction Application Date Application No.
----- ------------ ---------------- ---------------
Lead Fixation Device
or Suture Sleeve
Atrial "J" Lead
Improved Cardiac
Pacing and Sensing
Using Extra-Cardiac
Indifferent Electrode
Configurations
Suppression of Far-
Field Interference
Signals for
Implantable Device
Data Transmission
Systems
Performed (Shaped)
Single Lead
Pacemaker Systems
Performed (Shaped)
Single Lead
Pacemaker Systems
Active Fixation of a
Lead
I-B-1
SCHEDULE 1-A TO GRANT OF SECURITY INTEREST
TRADEMARKS
Trademark Jurisdiction Reg. Date Reg. No.
--------- ------------ --------- --------
None.
I-A-1
SCHEDULE 1-B TO GRANT OF SECURITY INTEREST
TRADEMARK APPLICATIONS
Xxxx Application Date Application No.
---- ---------------- ---------------
None.
I-B-1
SCHEDULE 1-A TO GRANT OF SECURITY INTEREST
COPYRIGHTS
Description Registration Date Registration No.
----------- ----------------- ----------------
None.
I-A-1
SCHEDULE 1-A TO GRANT OF SECURITY INTEREST
MASK WORKS
Description Registration Date Registration No.
----------- ----------------- ----------------
None.
I-A-1
ATTACHMENT III TO SECURITY AGREEMENT
SPECIAL POWER OF ATTORNEY
STATE OF _____________)
) ss.:
COUNTY OF_____________)
KNOW ALL PERSONS BY THESE PRESENTS, THAT Cardiac Control Systems,
Inc., a Delaware corporation ("Borrower"), pursuant to a Security Agreement
--------
(Intellectual Property), dated the date hereof (the "Security Agreement"),
------------------
between Borrower and Lender (as hereinafter defined) hereby appoints and
constitutes Coast Business Credit(R), a division of Southern Pacific Thrift &
Loan Association ("Lender") its true and lawful attorney, with full power of
------
substitution, and with full power and authority to perform the following acts on
behalf of Borrower:
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 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
III-1
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 the Lender's interest
in any patent, trademark, copyright or mask work not previously assigned to
Lender 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 Lender may in its sole discretion determine.
This power of attorney is made pursuant to the Security Agreement and
takes effect solely for the purposes of Subparagraphs 2(a), 2(b), 5(a) and 7(a)
---------------------------------------
thereof and is subject to the conditions thereof and may not be revoked until
the payment in full of all "Obligations" as defined in the Security Agreement.
Dated: June ____, 1997
CARDIAC CONTROL SYSTEMS, INC.
By:
----------------------------------
Name:
-------------------------------
Title:
------------------------------
III-2
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
-------------------------------------------------------------------------------
STATE OF CALIFORNIA )
) ss.
COUNTY OF______________)
On________, 199___ , before me,
--------------------------------------
(Name And Title Of Officer)
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
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
--------------------------------------
Signature Of Notary
--------------------------------------------------------------------------------
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
[_] Individual
[_] Corporate Officer
-------------------------------- ---------------------------------------
Title(s) Title Or Type Of Document
[_] Partner(s) [_] Limited
[_] General
---------------------------------------
Number Of Pages
[_] Attorney-In-Fact
[_] Trustee(s)
[_] Guardian/Conservator
[_] Other:
-------------------------- --------------------------------------
Date Of Document
Signer is representing:
Name Of Person(s) Or Entity(ies)
---------------------------------------
Signer(s) Other Than Named Above
-------------------------------------
-------------------------------------
--------------------------------------------------------------------------------
-2-
