SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of ___, 1999, between MIRAVANT MEDICAL
TECHNOLOGIES, a Delaware corporation ("Debtor"), and __, a Swedish corporation
("Secured Party").
1. Grant of Security Interest. Debtor, for valuable consideration, receipt
of which is hereby acknowledged, hereby grants to Secured Party, in order to
secure the payment when due, whether by acceleration or otherwise, of the
Indebtedness (as that term is defined below):
(a) A security interest in, and Debtor agrees and acknowledges that Secured
Party has and shall continue to have a security interest in any and all of the
following property of Debtor, whenever acquired or arising and wherever located
(collectively, the "Trademarks"):
(i) each of the trademarks, and rights and interests
protectible as trademarks which are presently, or in the
future may be, owned, created, acquired, or used (whether
pursuant to a license or otherwise) by Debtor, in whole or
in part, and all trademark rights with respect thereto
throughout the world, including all proceeds thereof
(including license royalties and proceeds of infringement
suits), and rights to renew and extend such trademarks and
trademark rights;
(ii) all of Debtor's right, title and interest in and
to the trademarks and trademark registrations listed on
Schedule 1 attached hereto, as the same may be updated
hereafter from time to time;
(iii) all of Debtor's rights to register trademark
claims under any state or federal trademark law or
regulation of any foreign country and to apply for, renew
and extend trademark registrations and trademark rights, all
of Debtor's rights (but not obligations) to xxx or bring
opposition or cancellation proceedings in the name of Debtor
or in the name of Secured Party for past, present and future
infringements of trademarks, registrations, or trademark
rights and all of Debtor's rights (but not obligations)
corresponding thereto in the United States and any foreign
country, and the associated goodwill;
(iv) all general intangibles relating to the
Trademarks; and
(v) the products, proceeds and accessions of any and
all of the foregoing (including, without limitation, license
royalties and proceeds of infringement suits) and, to the
extent not otherwise included, all payments under insurance,
or any indemnity, warranty, or guaranty payable by reason of
loss or damage to or otherwise with respect to the
Trademarks.
(b) A security interest in and assignment of, and Debtor agrees and
acknowledges that Secured Party has and shall continue to have a security
interest in and assignment of, any and all of the following property of Debtor,
whenever acquired or arising and wherever located (together with the Trademarks,
the "Collateral"):
(i) any and all of Debtor's Tangibles (as that term is defined below);
(ii) any and all of Debtor's Intangibles (as that term is defined below);
and
(iii) the products, proceeds and accessions of any and all of the
foregoing.
Notwithstanding the foregoing and only to the extent such prohibition is
enforceable under applicable law, the security interest granted herein shall not
extend to and the term "Collateral" shall not include any property, rights or
licenses to the extent the granting of a security interest therein (1) would be
contrary to applicable law or (2) is prohibited by or would constitute a default
under any agreement or document governing such property, rights or licenses that
is in effect on the date of this Agreement.
2. Definitions. (a) The term "Credit Agreement" shall mean the Credit
Agreement, of even date herewith, between Debtor, as borrower, and Secured
Party, as lender, as the same may be amended from time to time.
(b) The term "Credit Documents" shall have the meaning assigned to such
term in the Credit Agreement.
(c) The term "Event of Default" shall have the meaning assigned to such
term in the Credit Agreement.
(d) The term "Indebtedness" as used herein shall mean the following:
(i) Any and all obligations of Debtor with respect to the payment of
principal and interest or otherwise to Secured Party on the loans made
by Secured Party (and the promissory notes evidencing such loans) under
the Credit Agreement, and any extension or renewals of such loans; and
(ii) any and all other obligations of Debtor to Secured Party arising solely
under the Credit Agreement and the other Credit Documents and excluding
any other agreements between the parties and their affiliates, however
created or evidenced, whether now existing or hereafter arising and any
extension or renewals thereof.
(e) The term "Intangibles" as used herein includes and shall be deemed to
mean "accounts," "instruments," "documents," "chattel paper," "drafts,"
"checks," and "general intangibles" and each of them, as the foregoing terms are
defined in the Uniform Commercial Code as in effect in the State of New York,
excluding the Trademarks, and, without limitation, shall include:
(i) the following securities (the "Securities") hereby delivered and pledged to
Secured Party:
Miravant Cardiovascular, Inc.
Miravant Systems, Inc.
Miravant Pharmaceuticals, Inc.
Ramus Medical Technologies
Xillix Technologies Corporation
(ii) the following rights and interests in and to patents (collectively, the
"Patents"):
(A) each of the patents and patent applications
which are presently, or in the future may be, owned, issued,
acquired, or used (whether pursuant to a license or otherwise)
by Debtor, in whole or in part, and all patent rights with
respect thereto throughout the world, including all proceeds
thereof (including license royalties and proceeds of
infringement suits), foreign filing rights, and rights to
extend such patents and patent rights;
(B) all of Debtor's right, title and interest in
and to the patents and patent applications listed on Schedule
2 attached hereto, as the same may be updated hereafter from
time to time;
(C) all of Debtor's right, title and interest in
and to all patentable inventions, all of Debtor's rights to
file applications for patents under United States federal
patent law or the laws or regulations of any foreign country,
all of Debtor's rights to request reexamination and/or reissue
of patents, all of Debtor's rights (but not obligations) to
xxx or bring infringement or interference proceedings in the
name of Debtor or in the name of Secured Party for past,
present, or future infringements of patents, and all of
Debtor's rights (but not obligations) corresponding thereto in
the United States and any foreign country;
(D) all general intangibles relating to the
Patents; and
(E) all proceeds of any and all of the foregoing
(including without limitation, license royalties and proceeds
of infringement suits) and, to the extent not otherwise
included, all payments under insurance, or any indemnity,
warranty, or guaranty payable by reason of loss or damage to
or otherwise with respect to the Patents.
(iii) the following rights and interests in and to trade secrets (collectively,
the "Trade Secrets"):
(A) each of the trade secrets and proprietary
information which are presently, or in the future may be,
owned, created, acquired, or used (whether pursuant to a
license or otherwise) by Debtor, in whole or in part,
including all proceeds thereof (including license royalties
and proceeds of misappropriation suits), and all tangible
property embodying the trade secrets (including documents,
records, computer tapes or disks, customer lists,
sales/pricing information, photographs, flow diagrams,
specification sheets, source codes, object codes and other
physical manifestations of the foregoing);
(B) all of Debtor's right to xxx in the name of
Debtor or in the name of Secured Party for past, present, and
future misappropriation of the trade secrets and all rights
(but not obligations) corresponding thereto in the United
States and any foreign country;
(C) all general intangibles relating to the Trade
Secrets; and
(D) all proceeds of any and all of the foregoing
(including, without limitation, license royalties and proceeds
of infringement suits) and, to the extent not otherwise
included, all payments under insurance, or any indemnity,
warranty, or guaranty payable by reason of loss or damage to
or otherwise with respect to the Trade Secrets.
(f) The term "Permitted Liens" shall have the meaning
assigned to such term in the Credit Agreement.
(g) The term "Tangibles" as used herein includes and
shall be deemed to mean "inventory" and "equipment" as
defined in the Uniform Commercial Code as in effect in the
State of New York and all goods and tangible personal
property now owned or hereafter acquired by Debtor.
(h) Terms not expressly defined herein which are
defined in the Uniform Commercial Code as in effect in the
State of New York have the same meaning herein as in said
Code.
(i) As used in this Security Agreement and when required by
the context, each number (singular and plural) shall include all numbers, and
each gender shall include all genders; and unless the context otherwise
requires, the word "person" shall include "corporation, firm or association."
3. Warranties, Covenants and Agreements of Debtor. Debtor warrants,
covenants and agrees that:
(a) Except for the security interest granted hereby and except as permitted
by the agreements under which the Indebtedness is being incurred, Debtor is, and
as to Collateral acquired after the date hereof Debtor shall and will be at the
time of acquisition the owner and holder of the Collateral free from any adverse
claim, security interest, encumbrance, lien, charge, or other right, title or
interest of any person other than Secured Party and other than Permitted Liens,
and covenants that at all times the Collateral will be and remain free of all
such adverse claims, security interests, or other liens or encumbrances other
than Permitted Liens. Debtor has full power and lawful authority to sell, assign
and transfer the Collateral to Secured Party and to grant to Secured Party a
first and prior security interest therein, prior to all liens other than
Permitted Liens, as herein provided; the execution and delivery and the
performance hereof are not in contravention of any charter or by-law provision
or of any indenture, agreement or undertaking to which Debtor is a party or by
which Debtor or its property are bound; and Debtor will defend the Collateral
against all claims and demands of all persons at any time claiming the same or
any interest therein. Any officer, agent or representative acting for or on
behalf of Debtor in connection with this Security Agreement or any aspect
thereof, or entering into or executing this Security Agreement or any financing
statement on behalf of Debtor, has been duly authorized to do so, and is fully
empowered to act for and represent Debtor in connection with this Security
Agreement and all matters related thereto or in connection therewith.
(b)(i) Except for financing statements or security agreements evidencing
Permitted Liens, Debtor has not heretofore signed any financing statement or
security agreement which covers any of the Collateral, and no such financing
statement or security agreement is now on file in any public office.
(ii) As long as any amount remains unpaid on any of the Indebtedness or any
additional borrowings may be made by Debtor under any agreements entered into in
connection with the Indebtedness, except as expressly permitted by any such
agreements, (i) Debtor will not enter into or execute any security agreement or
any financing statement covering the Collateral, other than those security
agreements and financing statements in favor of Secured Party hereunder and
except for those evidencing Permitted Liens, and further (ii) there will not be
on file in any public office any financing statement or statements (or any
documents or papers filed as such) covering the Collateral, other than financing
statements in favor of Secured Party hereunder and except for those evidencing
Permitted Liens, unless in any case the prior written consent of Secured Party
shall have been obtained.
(iii) Debtor authorizes Secured Party to file, in jurisdictions where this
authorization will be given effect, a financing statement signed only by Secured
Party covering the Collateral, and hereby appoints Secured Party as Debtor's
attorney-in-fact to sign and file any such financing statements covering the
Collateral. At the request of Secured Party, Debtor will join Secured Party in
executing such documents as Secured Party may reasonably determine, from time to
time to be necessary or desirable under provisions of any applicable Uniform
Commercial Code in effect where the Collateral is located or where the Debtor
conducts business; without limiting the generality of the foregoing, Debtor
agrees to join Secured Party, at Secured Party's request, in executing one or
more financing statements in form satisfactory to Secured Party, and Debtor will
pay the costs of filing or recording the same, or of filing or recording this
Security Agreement, in all public offices at any time and from time to time,
whenever filing or recording of any such financing statement or of this Security
Agreement is deemed by Secured Party to be necessary or desirable and Secured
Party will provide Debtor with "as-filed" copies of all such filings or
recordings. In connection with the foregoing, it is agreed and understood
between the parties hereto (and Secured Party is hereby authorized to carry out
and implement this agreement and understanding and Debtor hereby agrees to pay
the costs thereof) that Secured Party may, at any time or times, file as a
financing statement any counterpart, copy, or reproduction of this Security
Agreement.
(c) Except as specifically otherwise permitted or provided herein, Debtor's
Tangibles shall remain in Debtor's possession and control at all times at
Debtor's risk of loss, and are now kept and at all times shall be kept at the
addresses and locations set forth on Schedule 3 hereto. If Debtor is using or
will use all or any part of the advances made, obligations incurred, or credit
extended by Secured Party to acquire rights in, possession of, or use of
Tangibles, then Debtor agrees that, within 30 days after Debtor first receives
possession thereof, such Tangibles will be brought to and kept at one of the
addresses and locations set forth on Schedule 1 hereto.
(d) Debtor will promptly notify Secured Party of any change in any of
addresses or locations set forth on Schedule 1 hereto and of any new addresses
or locations where Tangibles or other goods, documents, or instruments are or
may be kept, and Debtor will not remove (except in the ordinary course of its
business) the Tangibles or such goods, documents, or instruments, or any part
thereof, from the addresses and locations described and specified above without
the prior written notice to Secured Party.
(e) With respect to accounts, general intangibles and chattel paper
included in the Collateral, Debtor represents and warrants and agrees that
Debtor's books and records with respect to such Collateral are and will be kept
at Debtor's office located at 0000 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx
00000, and such address is that of Debtor's chief executive offices; and Debtor
further covenants and agrees that Debtor will not change such address without
first notifying Secured Party in writing of such change, filing such new or
additional financing statements and making such other filings or recordings as
Secured Party shall deem necessary or appropriate, and providing Secured Party
with "as-filed" copies of all such filings or recordings.
(f) Debtor further covenants and agrees that, if any certificates of title
or similar documents are at any time issued or outstanding with respect to any
of the Collateral, Debtor will promptly advise Secured Party thereof, and Debtor
will promptly cause the interest of Secured Party to be properly noted thereon,
and if any certificates of title or similar documents are so issued or
outstanding at the time this Security Agreement is executed by or on behalf of
Debtor, then Debtor shall have caused the interest of Secured Party so to have
been properly noted at or before the time of such execution; and Debtor will
further promptly deliver to Secured Party any such certificate of title or
similar document.
(g) Except as permitted in the Credit Agreement and except in the case of
sales of inventory in the ordinary course of business for cash or on payment
terms customary in Debtor's business which give rise to accounts constituting
Collateral hereunder, Debtor will not sell or offer to sell or otherwise
transfer or encumber or dispose of the Collateral or any interest therein
without the prior written consent of Secured Party.
(h) Debtor will not release or surrender any guaranty, suretyship agreement
or security for any of Debtor's Intangibles at any time or times except incident
to payment in full thereof.
(i) Debtor will take all action reasonably necessary to maintain and
preserve all security for Debtor's Intangibles at all times as valid, subsisting
and perfected as to all the property affected and covered thereby and to
maintain the priority and validity of the security for the Intangibles as
against the rights, claims and interests of all other persons; provided that if
Debtor, in its prudent business judgment, determines that (A) such rights are
immaterial or unneeded in its business or (B) it is in Debtor's business
interest not to maintain or preserve such rights, Debtor shall so notify Secured
Party and Secured Party shall have the opportunity to review the proposed
inaction and, where appropriate, to take action on Debtor's behalf to prevent
such lapse or require Debtor to transfer such rights to Secured Party.
(j) Notwithstanding anything to the contrary contained herein, it is
understood and agreed that if for any reason Tangibles are at any time kept or
located at locations other than those specified or which may hereafter be
consented to by Secured Party, Secured Party shall nevertheless have and retain
a security interest therein.
4. Special Provisions - Intangibles.
(a) Secured Party shall have the right, exercisable at any time following
the occurrence and during the continuance of an Event of Default, to take
control of all proceeds of the Collateral (whether cash proceeds or non-cash
proceeds) and to notify any and all account debtors, lessees, or other obligors
to make payment on any and all accounts, leases, or obligations directly to
Secured Party; and, in such circumstances, Debtor will upon request of Secured
Party likewise notify any and all such account debtors, lessees or other
obligors to make payment directly to Secured Party. Upon demand by Secured Party
following the occurrence and during the continuance of an Event of Default, all
proceeds of Intangibles, whether such proceeds be cash proceeds or non-cash
proceeds, received by Debtor shall be held in trust by Debtor for the account of
Secured Party, shall not be commingled with any other funds, accounts, monies or
property of Debtor, and shall be forthwith accounted for, paid over, transmitted
and delivered to Secured Party in the form as received by Debtor promptly upon
receipt thereof by Debtor.
(b) At any time after demand as hereinabove provided, and in any event,
without demand, after any of the Indebtedness shall become due, whether by
acceleration or otherwise (and so long as such Indebtedness shall remain
unpaid), and at any time after the occurrence of an Event of Default (and so
long as such Event of Default shall be continuing), Secured Party shall have the
right in its own name or in the name of Debtor to demand, collect, receive,
receipt for, xxx for, compound and give acquittance for, any and all amounts due
or to become due on the Intangibles and to endorse the name of Debtor on all
checks, drafts, commercial paper and other instruments given in payment or part
payment thereof, and in its discretion to settle, compromise, prosecute or
defend any action, claim or proceeding with respect thereto which Secured Party
may deem necessary or appropriate to protect and preserve and realize upon the
security interest and collateral assignment of Secured Party in the Intangibles
and the proceeds thereof and security therefor including, without limitation,
the right to sell, assign, pledge, transfer and make any agreement respecting or
otherwise deal with the Intangibles; provided, however, that all dispositions of
Intangibles shall be made in a commercially reasonable manner in accordance with
the Uniform Commercial Code and other applicable law.
(c) Returned or repossessed goods arising from or relating to any of
Debtor's Intangibles shall be and become a part of the Tangibles included in the
Collateral hereunder.
(d) Until the Indebtedness shall become due, whether by acceleration or
otherwise (and so long as such Indebtedness shall remain unpaid), or there shall
occur an Event of Default (and so long as such Event of Default shall be
continuing), Debtor shall be entitled to vote the Securities and to receive all
cash distributions thereon. Debtor covenants and agrees to deliver promptly to
Secured Party all securities or other property of any kind distributed as a
dividend or otherwise with respect to the Securities, said additional property
to be held as Collateral hereunder. Debtor agrees that at any time after any of
the Indebtedness shall have become due, whether by acceleration or otherwise
(and so long as such Indebtedness shall remain unpaid), and at any time after
the occurrence of an Event of Default (and so long as such Event of Default
shall be continuing), Secured Party may transfer Securities into the name of
Secured Party or its nominee.
(e) If, before the Indebtedness shall have been satisfied in full, Debtor
shall obtain rights to any new Patent, Trade Secret or Trademark, or become
entitled to the benefit of any Patent, Trade Secret or Trademark, the provisions
of Section 1 of this Security Agreement shall automatically apply thereto and
Debtor shall give to Secured Party prompt notice thereof in writing.
(f) Upon notice of new Patent or Trademark rights or entitlements, Debtor
authorizes Secured Party to modify this agreement by amending Schedules 1 and 2
hereof to include such Patents or Trademarks and agrees to execute and file any
such reports, records or documents reasonably deemed necessary by Secured Party
to perfect its interest in such property.
5. Special Provisions - Tangibles. (a) Any of Debtor's Tangibles in the
possession of persons other than Debtor must be represented by documents issued
by the person in possession thereof, in form acceptable to Secured Party, which
documents must, upon the reasonable request of the Secured Party, be delivered
to Secured Party and must be either negotiable documents issued in the name of
Debtor or non-negotiable documents issued in the name of Secured Party or on
which the security interest of Secured Party has been noted by the issuer
thereof. Debtor warrants that all such documents are and shall be genuine, valid
and in all respects what they purport to be and that the Tangibles described
therein will be identified or fungible portions of an identified mass, and that
said documents are and will be subject to no terms or conditions other than is
noted therein or thereon.
(b) At any time after any of the Indebtedness shall become due, whether by
acceleration or otherwise (and so long as such Indebtedness shall remain
unpaid), and at any time after the occurrence of an Event of Default (and so
long as such Event of Default shall be continuing), all proceeds of Debtor's
Tangibles, whether cash proceeds or non-cash proceeds, and including, without
limitation, proceeds that constitute Intangibles or that are included in the
Collateral as Intangibles, and proceeds that represent the proceeds of
Intangibles, shall be received and held by Debtor in trust for Secured Party,
shall not be commingled with any other funds, accounts, monies or property of
Debtor, and shall be promptly accounted for, paid over and delivered to Secured
Party in the form as received by Debtor upon receipt thereof by Debtor.
(c) Debtor will promptly report to Secured Party any occurrence or
condition known to or which becomes known to Debtor having any material adverse
effect upon Debtor's Tangibles.
6. Further Agreements Between the Debtor and Secured Party. (a) Secured
Party shall never be under any obligation to collect, attempt to collect,
protect or enforce the Collateral or any security therefor, which Debtor agrees,
and undertakes to do at Debtor's expense, but Secured Party may do so in its
discretion at any time after any of the Indebtedness shall become due, whether
by acceleration or otherwise (and so long as such Indebtedness shall remain
unpaid), and at any time after the occurrence of an Event of Default (and so
long as such Event of Default shall be continuing), and at any such time Secured
Party shall have the right to take any steps by judicial process or otherwise it
may deem proper to effect the collection of all or any portion of the Collateral
or to protect or to enforce the Collateral or any security therefor. All
expenses (including, without limitation, attorneys' fees and expenses) incurred
or paid by Secured Party in connection with or incident to any such collection
or attempt to collect the Collateral or actions to protect or enforce the
Collateral or any security therefor shall be borne by Debtor or reimbursed by
Debtor to Secured Party upon demand. The proceeds of collection of the
Intangibles or other proceeds received by Secured Party as a result of any such
actions in collecting or enforcing or protecting the Collateral shall be held by
Secured Party without liability for interest thereon and may be applied by
Secured Party as Secured Party may deem appropriate toward payment of any of the
Indebtedness secured hereby in such order or manner as Secured Party may elect.
(b) In the event Secured Party shall pay any such taxes, assessments,
interests, costs, penalties or expenses incident to or in connection with the
collection of the Collateral or protection or enforcement of the Collateral or
any security therefor, Debtor, upon demand of Secured Party, shall pay to
Secured Party the full amount thereof with interest at a rate per annum equal to
10% per annum in excess of the rate of interest on loans made pursuant to the
Credit Agreement; and so long as Secured Party shall be entitled to any such
payment, this Security Agreement shall operate as security therefor as fully and
to the same extent as it operates as security for payment of the other
Indebtedness secured hereunder, and for the enforcement of such repayment
Secured Party shall have every right and remedy provided for enforcement of
payment of the Indebtedness.
(c) In the event that the Collateral or any part thereof shall now or
hereafter become so related to particular real estate that an interest in it may
arise under the real estate laws of the state in which such real estate is
located, then Debtor shall immediately notify Secured Party of such fact and
take all steps and furnish all information as Secured Party shall reasonably
request for the purpose of creating or extending (as the case may be) a valid
and enforceable lien in such Collateral, including making such additional
filings or recordings, at Debtor's expense, as Secured Party shall deem
necessary or appropriate.
7. Remedies. (a) At any time after any of the Indebtedness shall become
due, whether by acceleration or otherwise (and so long as such Indebtedness
shall remain unpaid), and at any time after the occurrence of an Event of
Default (and so long as such Event of Default shall be continuing), in addition
to any other remedies provided for in any of the agreements relating to any of
the Indebtedness or available under applicable law, Secured Party shall have and
may exercise with reference to the Collateral and Indebtedness any or all of the
rights and remedies of a secured party under the Uniform Commercial Code in
effect in the State of New York, and as otherwise granted herein or under any
other applicable law or under any other agreement executed by Debtor, including,
without limitation, the right and power to sell, at public or private sale or
sales, or otherwise dispose of, lease or otherwise utilize the Collateral and
any part or parts thereof in any manner authorized or permitted under said
Uniform Commercial Code after default by a debtor, and to apply the proceeds
thereof toward payment of any costs and expenses and attorneys' fees and
expenses thereby incurred by Secured Party and toward payment of the
Indebtedness in such order or manner as Secured Party may elect. Specifically
and without limiting the foregoing, Secured Party may require Debtor to assemble
the Collateral or any security therefor and make it available to Secured Party
at a place to be designated by Secured Party; and Secured Party shall have the
right to take possession of all or any part of the Collateral or any security
therefor and of all books, records, papers and documents of Debtor or in
Debtor's possession or control relating to the Collateral which are not already
in Secured Party's possession, and for such purpose may enter upon any premises
upon which any of the Collateral or any security therefor or any of said books,
records, papers and documents are situated and remove the same therefrom without
any liability for trespass or damages thereby occasioned. To the extent
permitted by law, Debtor expressly waives any notice of sale or other
disposition of the Collateral and all other rights or remedies of Debtor or
formalities prescribed by law relative to sale or disposition of the Collateral
or exercise of any other right or remedy of Secured Party existing after default
hereunder; and to the extent any such notice is required and cannot be waived,
Debtor agrees that if such notice is given in the manner provided in Section 8
hereof at least 10 days before the time of the sale or disposition, such notice
shall be deemed reasonable and shall fully satisfy any requirement for giving of
said notice.
(b) At any time after any of the Indebtedness shall become due, whether by
acceleration or otherwise (and so long as such Indebtedness remains unpaid), and
at any time after the occurrence of an Event of Default (and so long as such
Event of Default shall be continuing), Secured Party is expressly granted the
right, at its option, to transfer at any time to itself or to its nominee the
Collateral, or any part thereof, and to receive the payments, collections,
monies, income, proceeds or benefits attributable or accruing thereto and to
hold the same as security for the Indebtedness or to apply it on the principal
and interest or other amounts owing on any of the Indebtedness in such order or
manner as Secured Party may elect.
(c) All rights to marshalling of assets of Debtor, including any such right
with respect to the Collateral, are hereby waived by Debtor.
8. General. (a) No Impairment, etc. The execution and delivery of this
Security Agreement in no manner shall impair or affect any other security (by
endorsement or otherwise) for the payment or performance of the Indebtedness and
no security taken hereafter as security for payment or performance of the
Indebtedness shall impair in any manner or affect this Security Agreement, all
such present and future additional security to be considered as cumulative
security. Any of the Collateral may be released from this Security Agreement
without altering, varying or diminishing in any way the force, effect, lien,
security interest, or charge of this Security Agreement as to the Collateral not
expressly released, and, except for Permitted Liens, this Security Agreement
shall continue as a first and prior lien, security interest and charge on all of
the Collateral not expressly released until all the Indebtedness secured hereby
has been paid or performed in full. Any future assignment of the interest of
Debtor in and to any of the Collateral shall not deprive Secured Party of the
right to sell or otherwise dispose of or utilize all or any part of the
Collateral as above provided or necessitate the sale or disposition thereof in
parcels or in severality.
(b) Liability for Deficiency. This Security Agreement shall not be
construed as relieving Debtor from full liability on the Indebtedness and any
and all future and other indebtedness secured hereby and for any deficiency
thereon.
(c) Powers of Secured Party. After any of the Indebtedness shall become
due, whether by acceleration or otherwise (and so long as such Indebtedness
shall remain unpaid), and after the occurrence of an Event of Default (and so
long as such Event of Default shall be continuing), in protecting, exercising or
assuring its interests, rights and remedies under this Security Agreement,
Secured Party may receive, open and dispose of mail addressed to Debtor and
execute, sign and endorse negotiable and other instruments for the payment of
money, documents of title and other evidences of payment, shipment or storage
for any form of Collateral or proceeds on behalf of and in the name of Debtor.
(d) Subrogation. After any of the Indebtedness shall become due, whether by
acceleration or otherwise (and so long as such Indebtedness shall remain
unpaid), and after the occurrence of an Event of Default (and so long as such
Event of Default shall be continuing), Secured Party will be hereby subrogated
to all of Debtor's interests, rights and remedies in respect to the Collateral
and all security now or hereafter existing with respect thereto and all
guaranties and endorsements thereof and with respect thereto.
(e) Any communication, demand or notice to be given hereunder will be duly
given when delivered in writing or by telecopy to a party at its address as
indicated below or such other address as such party may specify in a notice to
each other party hereto. A communication, demand or notice given pursuant to
this Security Agreement shall be addressed:
If to Debtor, to
Miravant Medical Technologies
0000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
with copies (which, in and of themselves, shall not constitute notice) to
Nida & Xxxxxxx PC
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
and
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
If to Secured Party, to
Pharmacia & Upjohn, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Treasurer
and
Pharmacia & Upjohn, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Senior Vice President
of Business Development
and
Pharmacia & Upjohn, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
with a copy (which, in and of itself, shall not constitute notice) to
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx,
Xxxxxxx X. Xxxx
and Xxxxxx X. Xxxxxxx
or, as to any party, to such other address as shall be designated by such party
in a prior written notice to each other party similarly given.
(f) Severability. The provisions of this Security Agreement are severable,
and if any clause or provision shall be held invalid and unenforceable in whole
or in part in any jurisdiction, then such invalidity or unenforceability shall
affect only such clause or provision, or part thereof, in such jurisdiction, and
shall not in any manner affect such clause or provision in any other
jurisdiction, or any other clause or provision of this Security Agreement in any
jurisdiction.
(g) No Duty to Preserve Collateral. Secured Party shall not be obligated to
take any steps necessary to preserve any rights in the Collateral or in any
security therefor against any other party, which obligation Debtor hereby
assumes.
(h) No Waiver. No delay or omission on the part of Secured Party in
exercising any right hereunder shall operate as a waiver of any such right or
any other right. A waiver on any one or more occasions shall not be construed as
a bar to or waiver of any right or remedy on any future occasion. The remedies
of Secured Party hereunder are cumulative, and the exercise of any one or more
of the remedies provided for herein shall not be construed as an election or as
a waiver of any of the other remedies of Secured Party provided for herein or
existing by law or otherwise.
(i) Assignment. All rights of Secured Party hereunder shall inure to the
benefit of its successors and assigns; and all obligations of Debtor shall bind
its successors and assigns.
(j) GOVERNING LAW. THIS SECURITY AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT AS
REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF ANY OF THE SECURITY INTERESTS HEREUNDER, OR REMEDIES
HEREUNDER, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, the Debtor has duly executed and delivered this
Security Agreement as of the date first above written.
MIRAVANT MEDICAL TECHNOLOGIES
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
Schedule 1
Trademarks
REGISTERED TRADEMARKS
Registration Issue
Country Number Date Owner/Assignee
[To Be Provided By Debtor]
PENDING TRADEMARK APPLICATIONS
Serial File Attorney/
Country Number Date Owner/Assignee Agent
[To Be Provided By Debtor]
Schedule 2
Patents
ISSUED PATENTS
Patent Issue Expiration
Country Number Date Date Owner/Assignee
[To Be Provided By Debtor]
PENDING PATENT APPLICATIONS
Serial Filing Owner/
Country No. Date Assignee Attorney/Agent
[To Be Provided By Debtor]
Schedule 3
Locations of Tangibles
[To Be Provided By Debtor]
