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Common use of Remittance to Lockbox Account Clause in Contracts

Remittance to Lockbox Account. (a) Within [***] ([***]) days after the first submission for Regulatory Approval for a Product in the Territory, the Parties shall enter into a Lockbox Agreement in form and substance reasonably satisfactory to the Parties and the Lockbox Bank, which Lockbox Agreement will provide for, among other things, the establishment and maintenance of the Deposit Accounts in accordance with the terms herein and therein. (b) Each Out-License entered into by Seller and its Affiliates shall contain a provision providing for all payments in respect of sales of the Products (excluding, for clarity, milestone payments of any kind) to be remitted directly by the applicable party into the Lockbox Account, and Seller shall use commercially reasonable efforts to cause such payments to be remitted directly by the applicable party into the Lockbox Account. Without in any way limiting the foregoing, commencing on the date on which the Lockbox Agreement is executed and at any time thereafter during the Term, any and all payments in respect of sales of the Products [***] received directly by Seller shall be deposited by Seller into the Lockbox Account within [***] ([***]) Business Days of Seller’s receipt thereof. (c) During the Term, immediately subsequent to the deposit of funds into the Lockbox Account: (i) the portion of such funds equal to the product of such funds multiplied by the Royalty Percentage shall be swept into the Purchaser Concentration Account from the Lockbox Account; and (ii) the remainder of such funds shall be swept into the Seller Concentration Account from the Lockbox Account. Seller shall have immediate and full access to any funds held in the Seller Concentration Account and such funds shall not be subject to any conditions or restrictions whatsoever other than those of the Lockbox Bank. Any Encumbrance granted by Seller to Purchaser in any funds transferred from the Lockbox Account to the Seller Concentration Account shall automatically terminate upon such transfer without any further action by any party. (d) Seller shall, on a Calendar Quarter basis commencing with the first Calendar Quarter during the Term when a Product Net Sale has occurred, instruct the Lockbox Bank to (i) with respect to each of the first, second and third Calendar Quarters in a given Calendar Year, within [***] ([***]) days after the end of each such Calendar Quarter, and (ii) with respect to the fourth Calendar Quarter in a given Calendar Year, within [***] ([***]) days after the end of such Calendar Quarter, sweep any funds contained in the Purchaser Concentration Account that constitute the Purchased Royalty into the Purchaser Account, it being understood that, at the end of each Calendar Quarter, Seller may retain from disbursement from the Purchaser Concentration Account any amounts that do not constitute the Purchased Royalty and instruct the Lockbox Bank to sweep such amounts into the Seller Concentration Account. (e) The Purchaser Concentration Account shall be held solely for the benefit of Purchaser. Seller shall not take any action with respect to the Purchaser Concentration Account other than making (i) the instructions to the Lockbox Bank necessary to effectuate the sweep contemplated by Section 2.2(d), or (ii) any adjustment (and corresponding instruction to transfer to the Seller Concentration Account any excess funds) for amounts as necessary to reconcile the balance of the Purchaser Concentration Account with the amount to which Purchaser is entitled pursuant to Section 2.1(a). (f) [***] shall pay all fees, expenses and charges of the Lockbox Bank. (g) During the Term, Seller shall not have the right to terminate the services of the Lockbox Bank without Purchaser’s prior written consent; provided, that[Purchaser shall not unreasonably withhold its consent if the following conditions are satisfied: (i) the successor Lockbox Bank is reasonably acceptable to Purchaser; (ii) Seller, Purchaser and the successor Lockbox Bank have entered into a lockbox agreement substantially similar to the form of Lockbox Agreement initially entered into; (iii) all funds and items in the accounts subject to the Lockbox Agreement to be terminated have been transferred to the new accounts held at the successor Lockbox Bank prior to the termination of the then existing Lockbox Bank; and (iv) Seller has notified all of the applicable parties making payments in respect of sales of the Products to remit all future payments in respect of sales of the Products to the new accounts held at the successor Lockbox Bank.

Appears in 3 contracts

Samples: Purchase and Sale Agreement (Galera Therapeutics, Inc.), Purchase and Sale Agreement (Galera Therapeutics, Inc.), Purchase and Sale Agreement

Remittance to Lockbox Account. (a) Within [***] The parties have heretofore entered into the Existing Lockbox Agreement. If such Lockbox Agreement terminates for any reason or Assignee determines that it should be replaced, as soon as reasonably practicable ([***]but in any event within sixty (60) days after the first submission for Regulatory Approval days) following a request by Assignee for a Product in the Territorynew Lockbox Agreement, the Parties parties hereto shall enter into a new Lockbox Agreement in form and substance reasonably satisfactory to the Parties Assignee and the Lockbox BankBank and substantially in the form of the Existing Lockbox Agreement, which new Lockbox Agreement will provide for, among other things, the establishment and maintenance of the Deposit Accounts a Lockbox Account, a Joint Concentration Account, an Assignor Concentration Account and an Assignee Concentration Account in accordance with the terms herein and therein. Any Assignee Concentration Account shall be held solely for the benefit of Assignee, but shall be subject to the terms and conditions of this Agreement, the Security Agreement, the Ortec Security Agreement, the Management Agreement and the other Transaction Documents. Funds deposited into the Lockbox Account shall be swept by the Lockbox Bank on a daily basis into the Joint Concentration Account and immediately subsequent thereto, the Advance Payment Amounts and the Daily Amount shall be swept into Assignee Concentration Account. Assignee shall have immediate and full access to any funds held in the Assignee Concentration Account not subject to any conditions or restrictions whatsoever. After the Advance Payment Amounts and the Daily Amount is swept into the Assignee Concentration Account the amounts remaining in the Joint Concentration Account shall then be swept, at the direction of Assignor, into the Assignor Concentration Account. Assignor shall have immediate and full access to any funds held in the Assignor Concentration Account not subject to any conditions or restrictions whatsoever. (b) Upon execution of a new Lockbox Agreement, Assignor shall cause to be delivered to Assignee an opinion of Feder, Kaszovitz, Isaacson, Weber, Skala, Bass & Rhine LLP and an opinion of Morrison & Foerster LLP, exxx xo be in the form delivered by such fixx xx xxnnexxxxx xxth the Existing Lockbox Agreement. (c) Assignor shall pay for all fees, expenses and charges of the Lockbox Bank by debiting the Assignor Concentration Account. (d) Each Out-Distribution Agreement and License Agreement for sales of the Products in North America entered into by Seller and its Affiliates Ortec shall contain a provision providing for all payments in respect of sales of the Products (excluding, for clarity, milestone payments and in respect of any kind) royalties received from Licensees to be remitted directly by the applicable party into the Lockbox Account, Account and Seller Assignor and Ortec shall use commercially reasonable efforts to cause such payments to be remitted directly by the applicable party into the Lockbox Account. Without in any way limiting the foregoing, commencing on the date on which the Lockbox Agreement is executed Closing Date and at any time thereafter during the Termthereafter, any and all payments in respect of sales of the Products [***] received directly by Seller Assignor or Ortec shall be deposited by Seller into the Lockbox Account within [***] five ([***]5) Business Days of Seller’s Assignor's or Ortec's receipt thereof. (ce) During With respect to any Future Agreement entered into by Assignor or Ortec from and after the Term, immediately subsequent to the deposit of funds into the Lockbox Account: date hereof Assignor or Ortec shall (i) at the portion time of the execution and delivery of such funds equal Future Agreement, instruct any party thereto under such Future Agreement to the product of such funds multiplied by the Royalty Percentage shall be swept into the Purchaser Concentration Account from the Lockbox Account; and (ii) the remainder of such funds shall be swept into the Seller Concentration Account from the Lockbox Account. Seller shall have immediate and full access remit to any funds held in the Seller Concentration Account and such funds shall not be subject to any conditions or restrictions whatsoever other than those of the Lockbox Bank. Any Encumbrance granted by Seller to Purchaser in any funds transferred from the Lockbox Account when due all applicable payments in respect of sales of the Products and in respect of royalties received from Licensees that are due and payable to the Seller Concentration Account shall automatically terminate upon Assignor or Ortec in respect of or derived from such transfer without any further action by any party. (d) Seller shall, on a Calendar Quarter basis commencing with the first Calendar Quarter Future Agreement during the Term when a Product Net Sale has occurred, instruct the Lockbox Bank to (i) with respect to each of the first, second and third Calendar Quarters in a given Calendar Year, within [***] ([***]) days after the end of each such Calendar Quarter, and (ii) with respect deliver to the fourth Calendar Quarter in a given Calendar Year, within [***] ([***]) days after the end Assignee evidence of such Calendar Quarter, sweep any funds contained in the Purchaser Concentration Account that constitute the Purchased Royalty into the Purchaser Account, it being understood that, at the end instruction and of each Calendar Quarter, Seller may retain from disbursement from the Purchaser Concentration Account any amounts that do not constitute the Purchased Royalty and instruct the Lockbox Bank to sweep such amounts into the Seller Concentration Account. (e) The Purchaser Concentration Account shall be held solely for the benefit of Purchaser. Seller shall not take any action with respect to the Purchaser Concentration Account other than making (i) the instructions to the Lockbox Bank necessary to effectuate the sweep contemplated by Section 2.2(d), or (ii) any adjustment (and corresponding instruction to transfer to the Seller Concentration Account any excess funds) for amounts as necessary to reconcile the balance of the Purchaser Concentration Account with the amount to which Purchaser is entitled pursuant to Section 2.1(a)applicable party's agreement thereto. (f) [***] Neither Assignor nor Ortec shall pay all fees, expenses and charges of the Lockbox Bank. (g) During the Term, Seller shall not have the any right to terminate the services of the Lockbox Bank without Purchaser’s Assignee's prior written consent; provided. Any such consent, that[Purchaser if Assignee desires to give, shall not unreasonably withhold its consent if be subject to the satisfaction of each of the following conditions are satisfiedto the satisfaction of Assignee: (i) the successor Lockbox Bank is shall be reasonably acceptable to PurchaserAssignee; (ii) SellerAssignee, Purchaser Assignor, Ortec and the successor Lockbox Bank shall have entered into a lockbox agreement substantially similar to in the form of the Existing Lockbox Agreement initially entered intoAgreement; (iii) all funds and items in the accounts subject to the Lockbox Agreement to be terminated have been shall be transferred to the new accounts held at the successor Lockbox Bank prior to the termination of the then existing Lockbox Bank; and (iv) Seller has notified Assignee shall have received evidence that all of the applicable parties making payments in respect of sales of the Products have been instructed to remit all future payments in respect of sales of the Products to the new accounts held at the successor Lockbox Bank.

Appears in 1 contract

Samples: Revenue Interests Assignment Agreement (Ortec International Inc)

Remittance to Lockbox Account. (a) Within [***] ([***]) days after Any Lockbox Account and Concentration Account shall be held jointly by the first submission for Regulatory Approval for Seller and the Purchaser. Funds deposited into the Lockbox Account shall be swept by the Lockbox Bank on a Product daily basis into the Concentration Account. Any funds held in the Territory, the Parties Concentration Account shall enter into a Lockbox be disbursed in accordance with this Agreement in form and substance reasonably satisfactory to the Parties and the Lockbox Bank, which Agreement. Funds in the Concentration Account shall be invested at the Seller’s discretion in permitted investments as set forth in the Lockbox Agreement will provide for, among other things, the establishment and maintenance of the Deposit Accounts in accordance with the terms herein and thereinAgreement. (b) Each Out-License entered into by With respect to each Seller Remittance Date, if the Purchaser has received payment in full the amount due and its Affiliates owing the Purchaser on such Remittance Date and to the extent additional funds are available in the Concentration Account after such payment to the Purchaser has been made (the “Additional Funds”), then, subject to the immediately succeeding sentence, such Additional Funds shall contain a provision providing for all payments in respect of sales of the Products (excluding, for clarity, milestone payments of any kind) to be remitted directly by the applicable party transferred into the Lockbox AccountSeller’s Account on such Remittance Date. Notwithstanding anything contained in this Agreement to the contrary, if a Purchase Option Event shall have occurred and the Purchaser shall have exercised its rights under Section 5.07 and there exists no good faith dispute as to whether or not the Seller shall use commercially reasonable efforts is obligated to cause such payments to be remitted directly by pay the applicable party into the Lockbox Account. Without in any way limiting the foregoing, commencing on the date on which the Lockbox Agreement is executed and at any time thereafter during the TermRepurchase Price, any and all payments funds held in respect of sales the Concentration Account shall not be transferred out of the Products [***] received directly by Concentration Account until the Seller has paid the Repurchase Price to the Purchaser pursuant to Section 5.07. Notwithstanding anything herein to the contrary, in the event a Bankruptcy Event shall have occurred, then any and all funds held in the Concentration Account shall not be deposited by Seller into the Lockbox Account within [***] ([***]) Business Days transferred out of Seller’s receipt thereofsuch account. (c) During the Term, immediately subsequent to the deposit of funds into the Lockbox Account: (i) the portion of such funds equal to the product of such funds multiplied by the Royalty Percentage shall be swept into the Purchaser Concentration Account from the Lockbox Account; and (ii) the remainder of such funds shall be swept into the Seller Concentration Account from the Lockbox Account. The Seller shall have immediate and full access to any funds held in the Seller Concentration Account and such funds shall not be subject to any conditions or restrictions whatsoever other than those of the Lockbox Bank. Any Encumbrance granted by Seller to Purchaser in any funds transferred from the Lockbox Account to the Seller Concentration Account shall automatically terminate upon such transfer without any further action by any party. (d) Seller shall, on a Calendar Quarter basis commencing with the first Calendar Quarter during the Term when a Product Net Sale has occurred, instruct the Lockbox Bank to (i) with respect to each of the first, second and third Calendar Quarters in a given Calendar Year, within [***] ([***]) days after the end of each such Calendar Quarter, and (ii) with respect to the fourth Calendar Quarter in a given Calendar Year, within [***] ([***]) days after the end of such Calendar Quarter, sweep any funds contained in the Purchaser Concentration Account that constitute the Purchased Royalty into the Purchaser Account, it being understood that, at the end of each Calendar Quarter, Seller may retain from disbursement from the Purchaser Concentration Account any amounts that do not constitute the Purchased Royalty and instruct the Lockbox Bank to sweep such amounts into the Seller Concentration Account. (e) The Purchaser Concentration Account shall be held solely pay for the benefit of Purchaser. Seller shall not take any action with respect to the Purchaser Concentration Account other than making (i) the instructions to the Lockbox Bank necessary to effectuate the sweep contemplated by Section 2.2(d), or (ii) any adjustment (and corresponding instruction to transfer to the Seller Concentration Account any excess funds) for amounts as necessary to reconcile the balance of the Purchaser Concentration Account with the amount to which Purchaser is entitled pursuant to Section 2.1(a). (f) [***] shall pay all fees, expenses and charges of the Lockbox Bank, which such fees, expenses and charges may be paid by debiting any Additional Funds. (d) The Seller shall cause all Licensee Royalty Payments to be made by the applicable Licensee to the Seller under the Royalty Agreements to which the Seller and Licensee is a party to be remitted directly by such Licensee into the Lockbox Account as provided in this Section 5.10. Without in any way limiting the foregoing, any and all Licensee Royalty Payments received by the Seller shall be deposited into the Lockbox Account within one Business Day of the Seller’s receipt thereof. (e) With respect to any Royalty Agreement entered into on or before December 31, 2006, the parties acknowledge that the Seller (i) to the extent not previously done so shall, instruct any Licensee under such Royalty Agreement to remit to the Lockbox Account when due all Licensee Royalty Payments that are due and payable to the Seller in respect of or derived from such Royalty Agreement for the Royalty Interest Period, and (ii) to the extent not previously done so shall deliver to the Purchaser evidence of such instruction and of such Licensee’s agreement thereto in accordance with Section 5.12. (f) With respect to any Future Agreement entered into by the Seller from and after January 1, 2007, such Seller (i) shall, at the time of the execution and delivery of such Future Agreement, instruct any Licensee under such Future Agreement to remit to the Lockbox Account when due all Licensee Royalty Payments that are due and payable to the Seller in respect of or derived from such Future Agreement for the calendar years commencing with and including the calendar year in which such Future Agreement was entered into and through and including 2014, and (ii) shall deliver to the Purchaser evidence of such instruction and of such Licensee’s agreement thereto in accordance with Section 5.12. (g) During the Term, The Seller shall not have the any right to terminate the services of the Lockbox Bank without the Purchaser’s prior written consent; provided. Any such consent, that[Purchaser if the Purchaser desires to give, shall not unreasonably withhold its consent if be subject to the satisfactory of each of the following conditions are satisfiedto the satisfaction of the Purchaser: (i) the successor Lockbox Bank is shall be reasonably acceptable to the Purchaser; (ii) Sellerthe Purchaser, Purchaser the Seller and the successor Lockbox Bank shall have entered into a lockbox agreement substantially similar to in the form of the Lockbox Agreement initially entered into; (iii) all funds and items in the accounts subject to the Lockbox Agreement to be terminated have been shall be transferred to the new accounts held at the successor Lockbox Bank prior to the termination of the then existing Lockbox Bank; and (iv) Seller has notified all of the applicable parties making payments in respect of sales of Purchaser shall have received evidence that the Products Licensees under the Royalty Agreements have been instructed to remit all future payments in respect of sales of the Products Licensee Royalty Payments to the new accounts held at the successor Lockbox Bank.

Appears in 1 contract

Samples: Royalty Interests Assignment Agreement (Pacira Pharmaceuticals, Inc.)

Remittance to Lockbox Account. (a) Within [***] sixty ([***]60) days after the first submission for Regulatory Approval for a Product in the Territorydate of this Agreement, the Parties parties hereto shall enter into a Lockbox Agreement in form and substance reasonably satisfactory to the Parties parties hereto and the Lockbox Bank, which Lockbox Agreement will provide for, among other things, the establishment and maintenance of the Deposit Accounts a Lockbox Account, a Joint Concentration Account, an Assignor Concentration Account and an Assignee Concentration Account and an Orthovita Concentration Account in accordance with the terms herein and therein. Any Assignee Concentration Account shall be held solely for the benefit of Assignee, but shall be subject to the terms and conditions of this Agreement, the Security Agreement and the other Transaction Documents. Funds deposited into the Lockbox Account shall be swept by the Lockbox Bank on a daily basis into the Joint Concentration Account and immediately subsequent thereto, the Advance Payment Amounts and the Daily Amount shall be swept into Assignee Concentration Account and the Royalty Interests (less the Advance Payment Amounts and the Daily Amount) shall be swept into the Assignor Concentration Account. Assignee shall have immediate and full access to any funds held in the Assignee Concentration Account not subject to any conditions or restrictions whatsoever. After the Advance Payment Amounts and the Daily Amount is swept into the Assignee Concentration Account and the amount of the Royalty Interests (less the Advance Payment Amounts and the Daily Amount) is swept into the Assignor Concentration Account, the amounts remaining in the Joint Concentration Account shall then be swept, at the direction of Orthovita, into the Orthovita Concentration Account. Each of Assignor and Orthovita shall have immediate and full access to any funds held in the Assignor Concentration Account and the Orthovita Concentration Account, respectively, not subject to any conditions or restrictions whatsoever. (b) Upon execution of the Lockbox Agreement, Assignee shall receive an opinion of counsel of Assignor as to the perfection of Assignee's security interest in the Pledged Deposit Accounts (as defined in the Security Agreement). (c) Orthovita shall pay for all fees, expenses and charges of the Lockbox Bank by debiting the Orthovita Concentration Account. (d) Each Out-Distribution Agreement and License Agreement for sales of the Products in the Territories entered into by Seller and its Affiliates shall Orthovita shall, within 60 days after the date of Closing, be amended to contain a provision providing for all payments in respect of sales of the Products (excluding, for clarity, milestone payments and in respect of any kind) royalties received from Licensees to be remitted directly by the applicable party into the Lockbox AccountAccount and Assignor and Orthovita shall cause such payments to be remitted [***] We are seeking confidential treatment of these terms, which have been omitted. The confidential portion has been filed separately with the Securities and Seller Exchange Commission. directly by the applicable party into the Lockbox Account and Assignor and Orthovita shall use commercially reasonable efforts to cause such payments to be remitted directly by the applicable party into the Lockbox Account. Without in any way limiting the foregoing, commencing on the date on which the Lockbox Agreement is executed Closing Date and at any time thereafter during the Termthereafter, any and all payments in respect of sales of the Products [***] received directly by Seller Assignor or Orthovita shall be deposited by Seller into the Lockbox Account within [***] five ([***]5) Business Days of Seller’s Assignor's or Orthovita's receipt thereof. (ce) During With respect to any Distribution Agreement or License Agreement entered into by Assignor or Orthovita from and after the Term, immediately subsequent to the deposit of funds into the Lockbox Account: date hereof Assignor or Orthovita shall (i) at the portion time of the execution and delivery of such funds equal agreement, instruct any party thereto under such agreement to the product of such funds multiplied by the Royalty Percentage shall be swept into the Purchaser Concentration Account from the Lockbox Account; and (ii) the remainder of such funds shall be swept into the Seller Concentration Account from the Lockbox Account. Seller shall have immediate and full access remit to any funds held in the Seller Concentration Account and such funds shall not be subject to any conditions or restrictions whatsoever other than those of the Lockbox Bank. Any Encumbrance granted by Seller to Purchaser in any funds transferred from the Lockbox Account when due all applicable payments in respect of sales of the Products in the Territories and in respect of royalties received from Licensees that are due and payable to the Seller Concentration Account shall automatically terminate upon Assignor or Orthovita in respect of or derived from such transfer without any further action by any party. (d) Seller shall, on a Calendar Quarter basis commencing with the first Calendar Quarter agreement during the Term when a Product Net Sale has occurred, instruct the Lockbox Bank to (i) with respect to each of the first, second and third Calendar Quarters in a given Calendar Year, within [***] ([***]) days after the end of each such Calendar Quarter, and (ii) with respect deliver to the fourth Calendar Quarter in a given Calendar Year, within [***] ([***]) days after the end Assignee evidence of such Calendar Quarter, sweep any funds contained in the Purchaser Concentration Account that constitute the Purchased Royalty into the Purchaser Account, it being understood that, at the end instruction and of each Calendar Quarter, Seller may retain from disbursement from the Purchaser Concentration Account any amounts that do not constitute the Purchased Royalty and instruct the Lockbox Bank to sweep such amounts into the Seller Concentration Account. (e) The Purchaser Concentration Account shall be held solely for the benefit of Purchaser. Seller shall not take any action with respect to the Purchaser Concentration Account other than making (i) the instructions to the Lockbox Bank necessary to effectuate the sweep contemplated by Section 2.2(d), or (ii) any adjustment (and corresponding instruction to transfer to the Seller Concentration Account any excess funds) for amounts as necessary to reconcile the balance of the Purchaser Concentration Account with the amount to which Purchaser is entitled pursuant to Section 2.1(a)applicable party's agreement thereto. (f) [***] Neither Assignor nor Orthovita shall pay all fees, expenses and charges of the Lockbox Bank. (g) During the Term, Seller shall not have the any right to terminate the services of the Lockbox Bank during the Term without Purchaser’s Assignee's prior written consent; provided. Any such consent, that[Purchaser if Assignee desires to give, shall not unreasonably withhold its consent if be subject to the satisfaction of each of the following conditions are satisfiedto the satisfaction of Assignee: (i) the successor Lockbox Bank is shall be reasonably acceptable to PurchaserAssignee; (ii) SellerAssignee, Purchaser Assignor, Orthovita and the successor Lockbox Bank shall have entered into a lockbox agreement substantially similar to in the form of the Lockbox Agreement initially entered into; (iii) all funds and items in the accounts subject to the Lockbox Agreement to be terminated have been shall be transferred to the new accounts held at the successor Lockbox Bank prior to the termination of the then existing Lockbox Bank; and (iv) Seller has notified Assignee shall have received evidence that all of the applicable parties making payments in respect of sales of the Products have been instructed to remit all future payments in respect of sales of the Products to the new accounts held at the successor Lockbox Bank. [***] We are seeking confidential treatment of these terms, which have been omitted. The confidential portion has been filed separately with the Securities and Exchange Commission.

Appears in 1 contract

Samples: Revenue Interests Assignment Agreement (Orthovita Inc)

Remittance to Lockbox Account. (a) Within [***] sixty ([***]60) days after the first submission for Regulatory Approval for a Product in the Territorydate of this Agreement, the Parties parties hereto shall enter into a Lockbox Agreement in form and substance reasonably satisfactory to the Parties parties hereto and the Lockbox Bank, which Lockbox Agreement will provide for, among other things, the establishment and maintenance of the Deposit Accounts a Lockbox Account, a Joint Concentration Account, an Assignor Concentration Account and an Assignee Concentration Account and an Orthovita Concentration Account in accordance with the terms herein and therein. Any Assignee Concentration Account shall be held solely for the benefit of Assignee, but shall be subject to the terms and conditions of this Agreement, the Security Agreement and the other Transaction Documents. Funds deposited into the Lockbox Account shall be swept by the Lockbox Bank on a daily basis into the Joint Concentration Account and immediately subsequent thereto, the Advance Payment Amounts and the Daily Amount shall be swept into Assignee Concentration Account and the Royalty Interests (less the Advance Payment Amounts and the Daily Amount) shall be swept into the Assignor Concentration Account. Assignee shall have immediate and full access to any funds held in the Assignee Concentration Account not subject to any conditions or restrictions whatsoever. After the Advance Payment Amounts and the Daily Amount is swept into the Assignee Concentration Account and the amount of the Royalty Interests (less the Advance Payment Amounts and the Daily Amount) is swept into the Assignor Concentration Account, the amounts remaining in the Joint Concentration Account shall then be swept, at the direction of Orthovita, into the Orthovita Concentration Account. Each of Assignor and Orthovita shall have immediate and full access to any funds held in the Assignor Concentration Account and the Orthovita Concentration Account, respectively, not subject to any conditions or restrictions whatsoever. (b) Upon execution of the Lockbox Agreement, Assignee shall receive an opinion of counsel of Assignor as to the perfection of Assignee's security interest in the Pledged Deposit Accounts (as defined in the Security Agreement). [***] We are seeking confidential treatment of these terms, which have been omitted. The confidential portion has been filed separately with the Securities and Exchange Commission. (c) Orthovita shall pay for all fees, expenses and charges of the Lockbox Bank by debiting the Orthovita Concentration Account. (d) Each Out-Distribution Agreement and License Agreement for sales of the Products in the Territories entered into by Seller and its Affiliates shall Orthovita shall, within 60 days after the date of Closing, be amended to contain a provision providing for all payments in respect of sales of the Products (excluding, for clarity, milestone payments and in respect of any kind) royalties received from Licensees to be remitted directly by the applicable party into the Lockbox Account, Account and Seller Assignor and Orthovita shall use commercially reasonable efforts to cause such payments to be remitted directly by the applicable party into the Lockbox Account. Without in any way limiting the foregoing, commencing on the date on which the Lockbox Agreement is executed Closing Date and at any time thereafter during the Termthereafter, any and all payments in respect of sales of the Products [***] received directly by Seller Assignor or Orthovita shall be deposited by Seller into the Lockbox Account within [***] five ([***]5) Business Days of Seller’s Assignor's or Orthovita's receipt thereof. (ce) During With respect to any Distribution Agreement or License Agreement entered into by Assignor or Orthovita from and after the Term, immediately subsequent to the deposit of funds into the Lockbox Account: date hereof Assignor or Orthovita shall (i) at the portion time of the execution and delivery of such funds equal agreement, instruct any party thereto under such agreement to the product of such funds multiplied by the Royalty Percentage shall be swept into the Purchaser Concentration Account from the Lockbox Account; and (ii) the remainder of such funds shall be swept into the Seller Concentration Account from the Lockbox Account. Seller shall have immediate and full access remit to any funds held in the Seller Concentration Account and such funds shall not be subject to any conditions or restrictions whatsoever other than those of the Lockbox Bank. Any Encumbrance granted by Seller to Purchaser in any funds transferred from the Lockbox Account when due all applicable payments in respect of sales of the Products in the Territories and in respect of royalties received from Licensees that are due and payable to the Seller Concentration Account shall automatically terminate upon Assignor or Orthovita in respect of or derived from such transfer without any further action by any party. (d) Seller shall, on a Calendar Quarter basis commencing with the first Calendar Quarter agreement during the Term when a Product Net Sale has occurred, instruct the Lockbox Bank to (i) with respect to each of the first, second and third Calendar Quarters in a given Calendar Year, within [***] ([***]) days after the end of each such Calendar Quarter, and (ii) with respect deliver to the fourth Calendar Quarter in a given Calendar Year, within [***] ([***]) days after the end Assignee evidence of such Calendar Quarter, sweep any funds contained in the Purchaser Concentration Account that constitute the Purchased Royalty into the Purchaser Account, it being understood that, at the end instruction and of each Calendar Quarter, Seller may retain from disbursement from the Purchaser Concentration Account any amounts that do not constitute the Purchased Royalty and instruct the Lockbox Bank to sweep such amounts into the Seller Concentration Account. (e) The Purchaser Concentration Account shall be held solely for the benefit of Purchaser. Seller shall not take any action with respect to the Purchaser Concentration Account other than making (i) the instructions to the Lockbox Bank necessary to effectuate the sweep contemplated by Section 2.2(d), or (ii) any adjustment (and corresponding instruction to transfer to the Seller Concentration Account any excess funds) for amounts as necessary to reconcile the balance of the Purchaser Concentration Account with the amount to which Purchaser is entitled pursuant to Section 2.1(a)applicable party's agreement thereto. (f) [***] Neither Assignor nor Orthovita shall pay all fees, expenses and charges of the Lockbox Bank. (g) During the Term, Seller shall not have the any right to terminate the services of the Lockbox Bank during the Term without Purchaser’s Assignee's prior written consent; provided. Any such consent, that[Purchaser if Assignee desires to give, shall not unreasonably withhold its consent if be subject to the satisfaction of each of the following conditions are satisfiedto the satisfaction of Assignee: (i) the successor Lockbox Bank is shall be reasonably acceptable to PurchaserAssignee; (ii) SellerAssignee, Purchaser Assignor, Orthovita and the successor Lockbox Bank shall have entered into a lockbox agreement substantially similar to in the form of the Lockbox Agreement initially entered into; (iii) all funds and items in the accounts subject to the Lockbox Agreement to be terminated have been shall be transferred to the new accounts held at the successor Lockbox Bank prior to the termination of the then existing Lockbox Bank; andand [***] We are seeking confidential treatment of these terms, which have been omitted. The confidential portion has been filed separately with the Securities and Exchange Commission. (iv) Seller has notified Assignee shall have received evidence that all of the applicable parties making payments in respect of sales of the Products have been instructed to remit all future payments in respect of sales of the Products to the new accounts held at the successor Lockbox Bank.

Appears in 1 contract

Samples: Revenue Interests Assignment Agreement (Orthovita Inc)

Remittance to Lockbox Account. (a) Within [***] sixty ([***]60) days after the first submission for Regulatory Approval for a Product in the Territorydate of this Agreement, the Parties parties hereto shall enter into a Lockbox Agreement in form and substance reasonably satisfactory to the Parties parties hereto and the Lockbox Bank, which Lockbox Agreement will provide for, among other things, the establishment and maintenance of the Deposit Accounts a Lockbox Account, a Joint Concentration Account, an Assignor Concentration Account and an Assignees Concentration Account in accordance with the terms herein and therein. Any Assignees Concentration Account shall be held solely for the benefit of Assignees, but shall be subject to the terms and conditions of this Agreement, the Security Agreements, the Management Agreement and the other Transaction Documents. Funds deposited into the Lockbox Account shall be swept by the Lockbox Bank on a daily basis into the Joint Concentration Account and immediately subsequent thereto, the Daily Amount and any other amounts payable to the Assignees under Section 2.02 shall be swept into the Assignees Concentration Account. Assignees shall have immediate and full access to any funds held in the Assignees Concentration Account and such funds shall not be subject to any conditions or restrictions whatsoever. After the Daily Amount and any other amounts payable to the Assignees under Section 2.02 are swept into the Assignees Concentration Account the amounts remaining in the Joint Concentration Account shall then be swept, at the direction of Assignor, into the Assignor Concentration Account. Assignor shall have immediate and full access to any funds held in the Assignor Concentration Account and such funds shall not be subject to any conditions or restrictions whatsoever other than those of the Lockbox Bank, provided, however, that nothing herein shall (i) affect or reduce Assignor's obligations to pay in full all amounts due to Assignees under this Agreement, or (ii) in any manner limit the recourse of Assignees to the assets of Assignor to satisfy the Assignor's obligations. (b) Upon execution of the Lockbox Agreement, Assignees shall receive an opinion of counsel of Assignor as to the perfection of Assignees' security interest in the Pledged Deposit Accounts (as defined in the Assignor-Assignees Security Agreement). (c) Assignor shall pay for all fees, expenses and charges of the Lockbox Bank by debiting the Assignor Concentration Account. (d) Each Out-Distribution Agreement and License Agreement entered into by Seller and its Affiliates Guilford shall contain a provision providing for all payments in respect of sales of the Primary Products (excluding, for clarity, milestone payments and in respect of any kind) royalties received from Contract Parties to be remitted directly by the applicable party into the Lockbox Account, Account and Seller Assignor and Guilford shall use commercially reasonable efforts to cause such payments to be remitted directly by the applicable party into the Lockbox Account. Without in any way limiting the foregoing, commencing on the later of the Closing Date and the date on which the Lockbox Agreement is executed and at any time thereafter during the Termthereafter, any and all payments in respect of sales of the Primary Products [***] Net Sales received directly by Seller Assignor or Guilford shall be deposited by Seller into the Lockbox Account within [***] five ([***]5) Business Days of Seller’s Assignor's or Guilford's receipt thereof. (ce) During With respect to any Distribution Agreement, License Agreement or other sale agreement or invoice entered into or issued by Guilford from and after the Term, immediately subsequent to the deposit of funds into the Lockbox Account: date hereof Guilford shall (i) at the portion time of the execution and delivery of such funds equal Distribution Agreement, License Agreement or other sale agreement or the issuance of any invoice, instruct any party thereto or recipient thereof to the product of such funds multiplied by the Royalty Percentage shall be swept into the Purchaser Concentration Account from the Lockbox Account; and (ii) the remainder of such funds shall be swept into the Seller Concentration Account from the Lockbox Account. Seller shall have immediate and full access remit to any funds held in the Seller Concentration Account and such funds shall not be subject to any conditions or restrictions whatsoever other than those of the Lockbox Bank. Any Encumbrance granted by Seller to Purchaser in any funds transferred from the Lockbox Account when due all applicable payments in respect of sales of the Products and in respect of royalties that are due and payable to the Seller Concentration Account shall automatically terminate upon Assignor or Guilford in respect of or derived from such transfer without any further action by any party. (d) Seller shallDistribution Agreement, on a Calendar Quarter basis commencing with the first Calendar Quarter License Agreement or other sale agreement or invoice during the Term when a Product Net Sale has occurred, instruct the Lockbox Bank to (i) with respect to each of the first, second and third Calendar Quarters in a given Calendar Year, within [***] ([***]) days after the end of each such Calendar Quarter, and (ii) with respect in the case of any Distribution Agreement, License Agreement or other sale agreement, deliver to the fourth Calendar Quarter in a given Calendar Year, within [***] ([***]) days after the end Assignees evidence of such Calendar Quarter, sweep any funds contained in the Purchaser Concentration Account that constitute the Purchased Royalty into the Purchaser Account, it being understood that, at the end instruction and of each Calendar Quarter, Seller may retain from disbursement from the Purchaser Concentration Account any amounts that do not constitute the Purchased Royalty and instruct the Lockbox Bank to sweep such amounts into the Seller Concentration Account. (e) The Purchaser Concentration Account shall be held solely for the benefit of Purchaser. Seller shall not take any action with respect to the Purchaser Concentration Account other than making (i) the instructions to the Lockbox Bank necessary to effectuate the sweep contemplated by Section 2.2(d), or (ii) any adjustment (and corresponding instruction to transfer to the Seller Concentration Account any excess funds) for amounts as necessary to reconcile the balance of the Purchaser Concentration Account with the amount to which Purchaser is entitled pursuant to Section 2.1(a)applicable party's agreement thereto. (f) [***] Neither Assignor nor Guilford shall pay all fees, expenses and charges of the Lockbox Bank. (g) During the Term, Seller shall not have the any right to terminate the services of the Lockbox Bank without Purchaser’s Assignees' prior written consent; provided. Any such consent, that[Purchaser which Assignees may grant or withhold in their discretion, shall not unreasonably withhold its consent if be subject to the satisfaction of each of the following conditions are satisfiedto the satisfaction of Assignees: (i) the successor Lockbox Bank is shall be reasonably acceptable to PurchaserAssignees; (ii) SellerAssignees, Purchaser Assignor, Guilford and the successor Lockbox Bank shall have entered into a lockbox agreement substantially similar to in the form of the Lockbox Agreement initially entered into; (iii) all funds and items in the accounts subject to the Lockbox Agreement to be terminated have been shall be transferred to the new accounts held at the successor Lockbox Bank prior to the termination of the then existing Lockbox Bank; and (iv) Seller has notified Assignees shall have received evidence that all of the applicable parties making payments in respect of sales of the Products have been instructed to remit all future payments in respect of sales of the Products to the new accounts held at the successor Lockbox Bank.

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Samples: Revenue Interest Assignment Agreement (Guilford Pharmaceuticals Inc)