EXHIBIT 10.21
SECURITY AGREEMENT
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THIS AGREEMENT is made and entered into as of this 22d day of December,
1997, by and between V.I. Technologies, Inc. (formerly known as Melville
Biologics, Inc.), a Delaware corporation with offices at 000 Xxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000 ("Debtor") and Bayer Corporation (formerly known as
Miles, Inc.), an Indiana corporation with offices at 000 Xxxxxx Xxxx, Xxxx
Xxxxx, Xxxxxxxxxxx 00000 ("Bayer").
RECITALS
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X. Xxxxx and Debtor entered into an Agreement for Custom Processing dated
as of February 7, 1995, as amended and restated pursuant to the First Amended
and Restated Agreement for Custom Processing dated January 24, 1996 (as further
amended according to the Modification Agreement described below, or as may be
amended at any time, the "Processing Agreement"), pursuant to which Debtor
agreed to process and fractionate certain quantities of Miles (now Bayer) Input
as defined in the Processing Agreement (hereinafter "Processing and
Fractionation Operation").
X. Xxxxx and Debtor entered into a Reimbursement and Security Agreement
dated as of February 7, 1995 relative to a Guaranty by Bayer of a PNC Bank, N.A.
loan to Debtor, as described therein. Said PNC loan is being paid off in
conjunction with entry into the Loan Documents (as defined below); said Guaranty
is being terminated and the related Mortgage, Security Agreement and Fixture
Filing from Debtor and Suffolk County Industrial Development Agency ("SCIDA") to
Bayer dated as of February 15, 1995 (the "1995 Mortgage") is being amended
accordingly; and said Reimbursement and Security Agreement is accordingly being
superseded by this Security Agreement. This Security Agreement will secure
Debtor's obligations to Bayer under the Processing Agreement, as provided below.
X. Xxxxx and Debtor are entering into a Modification Agreement dated as of
December 22, 1997 in conjunction with this Agreement, relative to the foregoing
and related matters.
D. Debtor is securing a loan from The Chase Manhattan Bank ("Bank") and
entering into a Credit Agreement dated the date hereof and related agreements
with the Bank (the "Loan Documents") and Bank, Bayer and Debtor are entering
into an Intercreditor Agreement (the "Intercreditor Agreement"), dated the date
hereof, regarding their relative rights in collateral furnished by Debtor to
Bank for said loan, and to Bayer under this Agreement.
PROVISIONS
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and with the intent to be legally
bound hereby, Debtor and Bayer agree as follows:
1. Superseding Agreement. This Agreement amends and restates in its entirety
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and supersedes said Reimbursement and Security Agreement, and continues without
impairment the security interest granted thereunder, as applicable.
2. Security Interest. As security for the Obligations (as defined in paragraph
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5) of Debtor under the Processing Agreement, Debtor does hereby sell, assign,
transfer and set over unto Bayer and grants to Bayer a duly perfected security
interest in and lien on the following collateral, wherever located, now existing
or hereafter acquired, arising or coming into existence (such collateral being
hereafter referred to, collectively, as the "Collateral") until all such
Obligations have been fully repaid or performed:
(a) that portion of Debtor's now owned or acquired in the future equipment
("Equipment"), as such term is defined in the Pennsylvania Uniform Commercial
Code (13 PA. Cons. Stat. Xxx. (S)9101, et seq.) ("Pa. U.C.C.") which includes
only the Equipment set forth on Schedule 2(a) attached hereto and incorporated
by reference and all other Equipment and fixtures, furniture and accessories
necessary, appropriate or useful in the Processing and Fractionation Operation,
and all additions, accessions and attachments to all Equipment, replacements
thereof, and substitutions and spare parts therefor.
(b) that portion of Debtor's now owned or acquired in the future inventory
("Inventory"), as such term is defined in the Pa. U.C.C., which includes only
Inventory that is necessary, appropriate or useful in the Processing and
Fractionation Operation, including but not limited to, plasma and plasma
products which are the subject of the Processing Agreement which may or may not
be approved by the FDA (as defined in the Processing Agreement), and Bayer Input
to the extent any and all of Bayer Input may become Inventory notwithstanding
that Bayer Input is and at all times shall remain the sole and exclusive
property of Bayer;
(c) that portion of Debtor's now owned or acquired or arising in the future
general intangibles ("Intangibles"), as such term is defined in the Pa. U.C.C.,
which includes only Intangibles that are necessary, appropriate or useful in the
Processing and Fractionation Operation, including but not limited to, the
patents, licenses, permits, regulatory approvals and applications for any
patent, license, permit or regulatory approval set forth on Schedule 2(c)
attached hereto and incorporated by reference and all other Intangibles
necessary, appropriate or useful in the Processing and Fractionation Operation,
but specifically excluding any other Intangibles that are not now or in the
future necessary, appropriate or useful in the Processing and Fractionation
operation;
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(d) all of Debtor's now owned or acquired or arising in the future accounts
("Accounts"), as such term is defined in the Pa. U.C.C., arising from sales of
Inventory or of other plasma or plasma products processed in the Processing and
Fractionation Operation including, but not limited to, contracts, contract
rights, monies, notes, bills, drafts, acceptances, choses in action, and all
other debts, obligations and liabilities in whatever form, owing to Debtor by
any person, firm or entity, arising from such sales by or services rendered in
the Processing and Fractionation Operation by Debtor, or otherwise established
or created in favor of Debtor, all guarantees, collateral and securities
therefor, and all right, title and interest of Debtor in and to the goods
(including Inventory) and services which gave rise thereto, including the rights
of reclamation and stoppage in transit and the right to returned goods and all
other rights or remedies of an unpaid seller of goods or services; and
(e) all proceeds and products of the foregoing necessary, appropriate or
useful in the Processing and Fractionation Operation in whatever form, now or in
the future, the same may be, including, but not limited to, insurance proceeds.
3. Collateral Assignment.
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(a) In addition to the security interest in the Intangibles granted to
Bayer pursuant to Section 2 above, Debtor does hereby sell, assign, transfer and
set over to Bayer all right, title and interest of Debtor in, to and under (i)
the licenses, permits and regulatory approvals, and all applications for any
license, permit or regulatory approval, relating to the Processing and
Fractionation Operation to the extent they are assignable and, to the extent FDA
prior approval is required, such assignment is approved by the FDA, now or in
the future listed, or which should be listed, on Schedule 2(c) to this Agreement
(the "Licenses and Permits"), and (ii) all contracts, agreements, understandings
or arrangements, whether oral or written, between or among Debtor and any other
person, entity or governmental unit or agency relating to the Processing and
Fractionation Operation ("Fractionation Contracts"), all of which are listed on
schedule 3(a) attached hereto and incorporated by reference. This collateral
assignment is intended as an absolute assignment and shall continue in full
force and effect until all Obligations are satisfied in full; provided, however
that until the occurrence of an event of default under this Agreement or the
Processing Agreement and Bayer's decision, in its sole and absolute discretion,
to effectuate a Bayer Takeover (as defined in the Processing Agreement), Debtor
shall exercise and perform all rights, duties and obligations and retain all
responsibilities under all of the Licenses and Permits and the Fractionation
Contracts. Nothing contained in this Agreement shall be construed to obligate
Bayer to assume, discharge or perform any right, duty, obligation or
responsibility of Debtor under the Licenses and Permits or the Fractionation
Contracts. In the event of a Bayer Takeover, Bayer may, in its sole and
absolute discretion, exercise Debtor's rights under some or all of the Licenses
and Permits or the Fractionation Contracts.
(b) It is the intention of the parties that, to the fullest extent
permissible by law, the foregoing collateral assignment shall permit and enable
Bayer, in the event of a Bayer Takeover, to immediately and without interruption
operate and conduct the Processing and Fractionation Operation including the
right to operate under all Licenses and Permits and obtain the benefit of
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the Fractionation Contracts now or then in effect. If for any reason whatsoever
this collateral assignment shall be ineffective or result in any delay in Bayer
implementing a Bayer Takeover, then Debtor hereby authorized Bayer, in its name
or in the name of Debtor, to amend, modify, supplement or apply for the transfer
to Bayer of any and all Licenses and Permits or Fractionation Contracts now or
in the future in effect, and Debtor does hereby appoint Bayer, or any designee
of Bayer, as the attorney in fact for Debtor with full authority and power to
execute, file and take all other action necessary to amend, modify, supplement
or transfer to Bayer the Licenses and Permits or Fractionation Contracts,
subject to liens under the Loan Documents and to the Intercreditor Agreement,
and to otherwise carry out the full intent and purpose of this Agreement and the
Bayer Takeover; provided, however, that in the event Bayer exercises any right
or remedy under this sentence, Bayer will use reasonable efforts to exercise any
such right or remedy in a manner that does not interfere with the Debtor's
general operations. Bayer shall transfer back to Debtor all Licenses, Permits
and Fractionation Contracts so transferred to Bayer, when no longer required for
a Bayer Takeover.
4. Additional Assurances. As additional collateral for Debtor's Obligations,
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Debtor shall do and perform or has done or performed the following:
(a) if and to the extent any of the Intangibles in which Bayer is now or in
the future being granted a security interest pursuant to this Agreement consist
of patents or registered trademarks or trade names, Debtor shall execute and
deliver to Bayer a collateral assignment, security agreement or other document
or instrument, in form and substance satisfactory to Bayer, and file or cause to
be filed such document or instrument with the Patent and Trademark Office or any
other office where any such document or instrument must be filed or recorded to
duly perfect Bayer's security interest under this Agreement.
(b) executed, recorded and delivered, and caused SCIDA to execute, record
and deliver, to Bayer the 1995 Mortgage, granting Bayer a mortgage on the
premises known as 000 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 (the "Mortgaged
Premises"), as amended by the Amendment to Mortgage and Security Agreement dated
as of December 22, 1997 (as so amended, the "Mortgage") subject to the
subordination of such lien in favor of Bank in accordance with the Intercreditor
Agreement.
(c) executed and delivered, and caused SCIDA to execute and deliver, a
Security Agreement, dated as of May 1, 1996, granting Bayer, inter alia, a
security interest in the Equipment (as defined in such Security Agreement) and a
collateral assignment of the Equipment Lease Agreement (as defined in such
Security Agreement), as amended by the Security Amendment Agreement dated as of
December 22, 1997, together with UCC-1 financing statements in favor of Bayer,
subject to the subordination of such security interest in favor of Bank in
accordance with the Intercreditor Agreement;
(d) executed and delivered to Bayer a Lease, as amended by the Modification
Agreement, dated as of December 22, 1997 in the forms attached hereto as Exhibit
"B" (the "Lease");
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(e) executed and delivered to Bayer a Sublease, as amended by the
Modification Agreement, dated as of December 22, 1997 in the forms attached
hereto as Exhibit "C" (the "Sublease");
(f) delivered to Bayer a true, correct and complete copy (including all
schedules, exhibits, amendments and modifications), as executed, of that certain
Amended and Restated Transfer Agreement, by and between New York Blood Center,
Inc. and Debtor, dated December 9, 1994;
(g) deliver to Bayer, in form and substance satisfactory to Bayer, a true
and correct copy, as executed, of the Loan Documents by and between Chase and
Debtor.
5. Obligations Secured. The obligations secured under this Agreement are as
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follows (collectively, the "Obligations"):
(a) all obligations of Debtor to make payments to Bayer under or pursuant
to this Agreement or the Processing Agreement;
(b) all obligations of Debtor to Bayer under the Processing Agreement
including, without limitation, the enforceability of the Bayer Takeover and any
liquidated or unliquidated damages arising from any breach or default by Debtor
of any of the terms, conditions, representations, warranties, covenants or other
provisions of the Processing Agreement;
(c) all obligations of Debtor to Bayer under the Mortgage, the Lease and
the Sublease;
(d) all costs and expenses incurred by Bayer in the collection of the
Obligations, including, but not limited to, reasonable attorney's fees;
(e) all costs and expenses of Bayer incurred in the protection,
preservation, taking possession of and sale of any of the Collateral including,
but not limited to, the exercise of a Bayer Takeover, the payment of any filing
or recording fees or taxes, taxes, levies, assessments, premiums of insurance
on, repairs to, or maintenance or storage of the Equipment, Inventory or
Intangibles, and any and all other out-of-pocket expenses of Bayer in connection
with this Agreement or with the Collateral including, but not limited to, the
cost of repair, if any, to realty or other Equipment to which the Equipment is
or has become affixed and expenses in connection with any security therefor; and
(f) all costs and expenses of Bayer incurred in preparing any of the
Collateral for sale or other disposition, including repairing, handling and
transporting, or in connection with the sale or other disposition of any of the
Collateral, including the collection or liquidation of Intangibles, and the
collection of any amount arising from a sale or other disposition of any of the
Collateral.
6. Covenants. Debtor covenants and agrees that:
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(a) Debtor has unencumbered title to all Collateral (including, but not
limited to the Licenses and Permits and the Fractionation Contracts) now in
existence and will obtain and maintain unencumbered title to any and all
Collateral acquired in the future except for (i) encumbrances contemplated by
the Loan Documents and the Intercreditor Agreement, (ii) interests of SCIDA as
fee owner of the property subject to the Mortgage, Lease and Sublease and as
lessor under the Equipment Lease and (iii) permitted liens and Permitted Liens
as provided under (b) below;
(b) Debtor will keep all Collateral free and clear of all other liens
whatsoever, except (i) to any extent Chase may have any security interest
therein under the Loan Documents, subject to said Intercreditor Agreement and
(ii) for any permitted liens to which Bayer shall have given its prior written
consent, which shall include all Permitted Liens as permitted under said Credit
Agreement;
(c) without the prior written consent of Bayer, Debtor will not sell,
assign or transfer (except for sales in the ordinary course of business),
otherwise dispose of, encumber, or create any other security interest in the
Collateral or any part of the Collateral;
(d) without the prior written consent of Bayer, Debtor will not affix the
Equipment or permit the Equipment to be affixed to real estate or otherwise to
become a fixture, except to the extent the Equipment is presently affixed to the
Mortgaged Premises;
(e) Debtor will keep the Equipment, the Inventory and the interest of Bayer
therein, fully insured, subject to Section 5 of the Mortgage, to the extent
applicable, for replacement value against loss or damage by fire, theft and such
other risks as would generally be insured against by prudent property owners
operating industrial facilities of a similar type to, and located in the general
area of, the Property, under an insurance policy or policies containing a
standard non-contributory lender's loss payee clause in favor of Bayer, written
by an insurance company or companies reasonably acceptable to Bayer, and, in the
event the Equipment or Inventory shall at any time not be fully insured as
required by this Agreement, Bayer, upon 20 days prior notice to Debtor, unless
there shall have been a lapse or termination of insurance, in which case no
notice shall be required, at its option (but without any obligation to do so),
may cause the same to be so insured, and upon demand, Debtor will reimburse
Bayer for the cost of any such insurance paid for by Bayer;
(f) any insurance proceeds received as a result of a casualty loss shall be
held as additional security for the payment of the Obligations and, subject to
Section 4 of the Mortgage, to the extent applicable, applied to repair and
replacement of the Equipment or Inventory affected, with any balance to Debtor
and, subject to the Intercreditor Agreement, the Senior Obligations referred to
therein;
(g) Debtor will pay all costs of filing or recording any financing,
continuation or termination statements, and all other costs and expenses
relating to perfecting, maintaining, documenting or otherwise preserving the
security interests or other rights granted under or pursuant to this Agreement,
the Lease, the Sublease and the Processing Agreement;
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(h) Debtor will promptly notify Bayer of any change in the Debtor's places
of business or of the location of any of the Collateral;
(i) without the prior written consent of Bayer, Debtor will not agree to
any modification of, or substitution for, any contract or obligation which
materially and adversely affects the security interests granted under this
Agreement including, without limitation, the Licenses and Permits, the
Fractionation Contracts and the Loan Documents;
(j) a carbon, photographic or other reproduction of (i) this Agreement, or
(ii) a financing statement, is sufficient as a financing statement;
(k) Debtor will at all times conduct its affairs and operate its business
in compliance with all applicable laws, rules and regulations, including,
without limitation, the terms and conditions of all Licenses and Permits, any
applicable Food and Drug Administration regulations and environmental laws and
regulations, and Debtor will promptly notify Bayer of any notice of any alleged
violation or investigation into any alleged violation of any of the Licenses and
Permits or any other law, rule or regulation by any governmental entity;
provided, however, that Debtor's failure to comply with such laws, rules and
regulations shall not constitute a default under this Agreement if such failure
would not have a material adverse effect on Debtor, or the Processing and
Fractionation Operation;
(l) Debtor will promptly and faithfully prosecute all applications and keep
and perform, or cause to be prosecuted, kept or performed in all respects, all
the terms, covenants and conditions required to be performed or observed by
Debtor to preserve, maintain and comply with any of the Licenses and Permits
which may now or in the future affect the Processing and Fractionation
Operation, and Debtor will not do or permit anything to be done which would or
could materially impair or tend to materially impair Bayers' rights in or to the
Licenses and Permits and the Fractionation Contracts, including all rights
granted under this Agreement and the Bayer Takeover under the Processing
Agreement, or which could be grounds for any person, entity or governmental unit
or agency declaring a default, forfeiture, itemization, cancellation, breach, or
penalty under any of the Licenses and Permits or the Fractionation Contracts;
(m) Debtor will: (i) not change its name, merge with any other entity or
change its form of organization; (ii) keep all Collateral located only at the
site of the Processing and Fractionation Operation (said site being the Property
at 000 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 11747) or at the Debtor's chief office
which is at the Property, or at such other location as Bayer may consent to in
writing, which consent shall not be unreasonably withheld or delayed; and (iii)
not change or move the location of its chief office or the location of the
Processing and Fractionation Operation or any Collateral, without in each case
first obtaining the prior written consent of Bayer, which consent shall not be
unreasonably withheld or delayed; and
(n) Debtor will pay, before any fine, penalty, interest or cost attaches
thereto, all taxes, assessments and other charges upon the Collateral, or
relating to the Processing and Fractionation Operation or any of the Collateral,
or upon this Agreement, other than taxes solely
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attributable to Bayer's interest in the Collateral or its rights under the
Processing Agreement; provided, however, that if by law any such taxes,
assessments or other charges may be paid in installments (whether or not
interest shall accrue on the unpaid balance thereof), the Debtor may pay the
same in installments (together with accrued interest on the unpaid balance
thereof) as the same respectively become due, before any fine, penalty or cost
attaches thereto; provided further that nothing in this Section 6(n) shall
require the payment or discharge of any tax or assessment so long as Debtor
shall, after complying with each of the following conditions, in good faith and
at its own expense, contest the same or the validity thereof by appropriate
legal proceedings diligently pursued. Before commencing any such proceeding,
Debtor shall: (i) notify Bayer in writing of its intent to do so; (ii) ascertain
that such proceedings will operate to prevent the collection thereof or other
realization thereon; and (iii) provide security reasonably satisfactory to Bayer
assuring the discharge of Debtor's obligation under this Section 6(n) and of any
additional interest, charge, penalty or expense arising from or incurred as a
result of such contest. Notwithstanding the foregoing, if at any time payment of
any tax or assessment shall become necessary to prevent a lien foreclosure sale
of the Mortgaged Premises or any portion thereof because of nonpayment of such
tax or assessment, the Debtor shall pay the same in sufficient time to prevent
the foreclosure sale.
7. Representations and Warranties. Debtor represents and warrants to Bayer
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that:
(a) Debtor is a corporation validly formed and duly organized and existing
in good standing under the laws of the State of Delaware;
(b) Debtor is qualified to do business in New York and in each state where
the Processing and Fractionation Operation is located and in all other
jurisdictions where the Collateral is or will be located;
(c) Debtor has all power, corporate and otherwise, necessary to execute and
deliver this Agreement, the Processing Agreement, the Mortgage, the Security
Agreement, the Intercreditor Agreement, the Modification Agreement, the Lease
and the Sublease. Debtor is duly authorized to enter into this Agreement, to
grant to Bayer security interests in the Collateral and to carry out all of the
transactions and acts contemplated by this Agreement, the Processing Agreement,
the Lease and the Sublease;
(d) this Agreement, the Processing Agreement, the Mortgage, the Security
Agreement, the Intercreditor Agreement, the Modification Agreement, the Lease,
the Sublease and the Loan Documents have been duly executed and delivered by
Debtor to Bayer (except for the Loan Documents, which have been delivered to
Chase), and each constitutes a legal, valid and binding obligation of Debtor,
enforceable against Debtor in accordance with its terms;
(e) the execution and delivery of this Agreement, the Mortgage, the
Security Agreement, the Intercreditor Agreement, the Modification Agreement, the
Processing Agreement, the Lease, the Sublease and the Loan Documents, and
performance of the obligations thereunder, does not and will not: (i) violate
or contravene any provision of Debtor's certificate of incorporation or by-laws;
(ii) result in any breach of any of the terms and provisions of, or
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constitute (with or without the giving of notice of the passage of time or both)
a default under, or give rise to the right to accelerate, terminate or cancel,
any material indenture, agreement or other instrument to which the Debtor is a
party or by which it or any of its properties are bound; (iii) result in the
creation or imposition of any lien, charge or encumbrance upon any of Debtor's
properties pursuant to the terms of any such indenture, agreement or other
instrument (other than as contemplated in this Agreement); (iv) violate any
applicable statute or regulation; or (v) violate any order, writ, injunction or
decree which names the Debtor as a party or which is specifically directed to it
or its property and which has been issued by any court or by any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over Debtor or its properties;
(f) Debtor is or will be when the Collateral is acquired and at all times
thereafter will be the owner of the Collateral, free and clear of any liens,
claims and encumbrances, other than the liens or security interests granted to
Bayer under this Agreement and except as provided under Section 6(b) of this
Agreement;
(g) set forth on Schedule 2(c) to this Agreement are all Licenses and
Permits and other Intangibles, and set forth on Schedule 3(a) are all
Fractionation Contracts that are necessary, or will be used or useful in the
Processing and Fractionation Operation, and Debtor will, from time to time,
amend such Schedules so that they shall at all times list all such Licenses and
Permits and Fractionation Contracts, whether now in existence or acquired in the
future.
8. Defaults. As used in this Agreement, the term "default" means (i) an Event
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of Default under the Processing Agreement which has occurred and is continuing,
(ii) the failure to pay, when due upon demand, any Obligations, (iii) a failure
by Debtor to duly perform and observe any other agreement or covenant contained
in this Agreement and the same shall remain uncured for 30 days after receipt by
Debtor of notice thereof; provided, however, if such matter cannot reasonably be
cured within 30 days, Debtor shall not be in default hereunder so long as Debtor
has commenced the cure within the 30 day period and is diligently pursuing the
same to completion, or (iv) any representation or warranty of Debtor contained
in this Agreement shall be materially false as of the date made. In the event
of any such default Bayer will be entitled, at its option, without notice, to
enforce its rights or remedies under this Agreement or under the Processing
Agreement.
9. Further Agreements. The undersigned further agrees that after a default
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under this Agreement:
(a) in addition to any other rights or remedies provided or referenced in
this Agreement, Bayer shall have all of the rights and remedies provided by law
or at equity;
(b) all of Bayers' rights and remedies shall be cumulative and may be
exercised by Bayer in any order or fashion and without the need to pursue or
exhaust any right or remedy (whether against Debtor or any other party or
whether against any portion of the Collateral or any other property) as a
condition to enforcing or pursuing any other right or remedy; and
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(c) failure by Bayer to enforce promptly any of its rights or remedies
shall not be deemed a waiver of such rights or remedies or of any default under
this Agreement.
10. Notices. All notices, demands, requests, consents or approvals required
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under this Agreement must be in writing and will be conclusively deemed to have
been received by a party hereto and to be effective on the day on which
delivered personally to such party or on the next business day if sent by
overnight courier service, return receipt requested, addressed to such party at
the address set forth below or to such other address as any party may give to
the other in writing for such purpose:
To Debtor: 000 Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
To Bayer: Bayer Corporation
000 Xxxxx Xxxx
Xxxxxxxx 0
Xxxxxxxxxx, XX 00000-0000
Attention: Xx. Xxx X. Xxxx
Senior Vice President and Treasurer
and
Xxxxx X. Xxxxx, Director-Treasury Services
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Pharmaceutical Division
Bayer Corporation
000 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxxxxxx 00000
Attention: Law Department
Phone: (000) 000-0000
Fax: (000) 000-0000
All such communications will be conclusively deemed to have been received by a
party hereto and to be effective when so delivered personally, or if sent by
overnight courier service, on the day after deposit thereof with such service.
11. Further Assurances and Covenants. Debtor, at its cost, and without expense
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to Bayer, shall:
(a) within ten (10) days after receipt of a request therefor from Bayer,
deliver to Bayer a written statement, duly acknowledged, setting forth the
outstanding amount due under
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the Loan Documents, and to the best of Debtor's knowledge any offsets or
defenses, if any, which Debtor has, or believes it may have, under the Loan
Documents; and
(b) execute such further documents, provide such further assurances, and
take such other actions as may be reasonably requested by Bayer for the purposes
of further evidencing, perfecting, carrying out and/or confirming this Agreement
and for all other purposes contemplated by this Agreement, including but not
limited to perfecting or continuing the perfection of any security interest or
collateral assignment granted under or pursuant to this Agreement.
12. Successors and Assigns. This Agreement will be binding upon and inure to
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the benefit of Debtor and Bayer and their respective successor and assigns and
neither party may assign this Agreement in whole or in part without the prior
written consent of the other party.
13. Modifications. No modification or waiver of any provision of this
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Agreement nor consent to any departure by Debtor therefrom will in any event be
effective unless the same is in writing, specifically refers to this Agreement
and is signed by both parties, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
14. Severability. If fulfillment of any provision hereof or any transaction
------------
related hereto or of any provision of this Agreement, at the time performance of
such provision is due, involves transcending the limit of validity prescribed by
law, then ipso facto, the obligation to be fulfilled will be reduced to the
limit of such validity; and if any clause or provision contained in this
Agreement, other than the provisions hereof pertaining to repayment of the
Obligations operates or would prospectively operate to invalidate this Agreement
in whole or in part, then such clause or provision only will be void, as though
not herein contained, and the remainder of this Agreement will remain operative
and in full force and effect; and if such provision pertains to repayment of the
Obligations, then, at the option and sole discretion of Bayer, all of the
Obligations of Debtor to Bayer will become immediately due and payable.
15. Gender, etc. Unless the context clearly requires otherwise, whenever used
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herein, the singular number will include the plural, the plural the singular and
the use of the masculine, feminine or neuter gender will include all genders.
16. Headings. The headings in this Agreement are for convenience only and will
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not limit or otherwise affect any of the terms hereof.
17. Governing Law and Jurisdiction. This Agreement will be interpreted and the
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rights and liabilities of the parties hereto determined in accordance with the
laws of the Commonwealth of Pennsylvania. The undersigned hereby agrees and
consents to the jurisdiction of any state or federal court located within any
county in Pennsylvania where Bayer chooses.
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18. Intercreditor Agreement. The parties agree that, in case of any conflict
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between the provisions of this Agreement and the Intercreditor Agreement, the
Intercreditor Agreement shall control.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Security Agreement as of the day and year first set forth above.
V.I. TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Vice President, CFO
BAYER CORPORATION
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
Title: Vice President
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