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AMENDED AND RESTATED
PATENT COLLATERAL ASSIGNMENT
This Amended and Restated Patent Collateral Assignment (this
"Agreement") is made this 12th day of April, 2005, by and between COMMODORE
APPLIED TECHNOLOGIES, INC. ("Assignor"), which maintains an address at Suite
3238, 150 East 58th Street, New York, New York; and THE SHAAR FUND, LTD.
("Secured Party"), which maintains an address at c/o SS&C Fund Services N.V.,
Pareraweg 45, Curacao, Netherlands Antilles.
Assignor has executed and delivered a 10% Convertible Secured Note (the
"Note") to the Secured Party in the aggregate principal amount of Four Million
Six Hundred Thousand Seven Hundred Thirty-Three ($4,600,733) Dollars and has
entered into an Amended and Restated Security Agreement, of even date herewith
("Security Agreement"), with the Secured Party. In order to induce the Secured
Party to execute and deliver the Security Agreement and to make the loan and
future advances under the Note, Assignor has agreed, inter alia, to assign to
Secured Party certain patent rights.
NOW, THEREFORE, in consideration of the premises, Assignor hereby
agrees with Secured Party as follows:
1. To secure the complete and timely satisfaction of all Obligations,
Assignor hereby grants, assigns and conveys to Secured Party the entire right,
title and interest in and to the patent applications and patents listed in
Schedule A hereto, including without limitation all proceeds thereof (such as,
by way of example, license royalties and proceeds of infringement suits), the
right to sue for past, present and future infringements, all rights
corresponding thereto throughout the world and all reissues, divisions,
continuations, renewals, extensions and continuations-in-part thereof
(collectively, the "Patents"). Terms used herein but not otherwise defined shall
have the meanings given to such terms in the Security Agreement and the Note.
2. Assignor represents, warrants and covenants that:
(a) The Patents are subsisting and have not been adjudged invalid or
unenforceable, in whole or in part and such Patents represent all of the Patents
owned by Assignor;
(b) To the best of Assignor's knowledge, each of the Patents that has
been issued is valid and enforceable;
(c) Assignor is the sole and exclusive owner of the entire and
unencumbered right, title and interest in and to each of the Patents, free and
clear of any liens, charges and encumbrances, including without limitation
pledges, assignments, licenses, shop rights and covenants by Assignor not to sue
third persons; and
(d) Assignor has the unqualified right to enter into this Agreement and
perform its terms.
3. Assignor agrees that until all of the Obligations shall have been
satisfied in full, it will not enter into any agreement (for example, a license
agreement) which is inconsistent with Assignor's obligations under this
Agreement, without Secured Party's prior written consent.
4. If, before the Obligations shall have been satisfied in full,
Assignor shall obtain rights to any new patentable inventions, or become
entitled to the benefit of any patent application or patent for any reissue,
division, continuation, renewal, extension or continuation-in-part of any Patent
or any improvement on any Patent, the provisions of paragraph 1 shall
automatically apply thereto and Assignor shall give to Secured Party prompt
notice thereof in writing hereof.
5. Assignor authorizes Secured Party to modify this Agreement by
amending Schedule A to include any future patents and patent applications which
are Patents under paragraph 1 or paragraph 4 hereof. Secured Party authorizes
Assignor to abandon any of the Patents if, in Assignor's sole and exclusive
determination, such Patent is not commercially viable. Provided, however, that
Assignor shall give Secured Party not less than thirty (30) days written notice
of its intention to abandon any such Patent whereupon Secured Party may assume
the unconditional ownership of such Patent at its sole cost and expense.
6. Unless and until there shall have occurred and be continuing an
Event of Default, Secured Party hereby grants to Assignor the exclusive,
nontransferable right and license under the Patents to make, have made for it,
use, sell and