EXHIBIT 10.18
AMENDED AND RESTATED SECURITY AGREEMENT
This Amended and Restated Security Agreement dated as of December 21,
1999, by and between KOS PHARMACEUTICALS, INC., a Florida corporation having a
principal place of business at 0000 Xxxxxxxx Xxx Xxxxx, 00xx Xxxxx, Xxxxx, XX
00000 (hereinafter called the "Borrower") and XXXXXXX XXXXXXX, an individual
residing in South Norwalk, Connecticut(hereinafter called the "Lender").
W I T N E S S E T H:
WHEREAS, the Lender has agreed to make a loan in the amount of
$50,000,000.00 (the "December Loan") as more fully described and set forth in a
loan agreement of even date herewith between the Lender and the Borrower (the
"December Loan Agreement"); and
WHEREAS, the Lender previously entered into a Revolving Credit and Loan
Agreement dated as of September 1, 1999 with Borrower (the "September Loan
Agreement") whereby Lender agreed to extend a line of credit to Borrower in the
maximum principal amount of $50,000,000 (the "September Loan"); and
WHEREAS, the Lender also previously entered into a Revolving Credit and
Loan Agreement dated as of July 1, 1998 with Borrower, as amended by amendment
of even date herewith (the "Unsecured Credit Agreement")(the December and
September Loan Agreements together with the Unsecured Credit Agreement shall
hereinafter be referred to as the "Loan Agreements") whereby Lender agreed to
extend an unsecured line of credit to Borrower in the maximum principal amount
of $30,000,000 (the "July Loan")(the December, September and July Loans shall
hereinafter be referred to collectively as the "Loans"), which amount is fully
advanced to Borrower as of the date hereof; and
WHEREAS, the December and September Loan Agreements provide, in part,
that the Loans shall be secured by a blanket lien upon all personal property
owned by Borrower;
WHEREAS, this Amended and Restated Security Agreement amends and
restates that Security Agreement dated September 1, 1999 by and between Borrower
and Lender (the "Original Security Agreement") granting a blanket lien security
interest to Lender to secure the September Loan;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and in the Loan Agreements, and One ($1.00) Dollar, the receipt
and sufficiency of which is hereby acknowledged, the Lender and the Borrower
hereby agree as follows:
1. GRANT OF SECURITY INTEREST. (a) The Borrower hereby grants to
Lender, and hereby confirms and ratifies its grant to Lender pursuant to the
Original Security Agreement as of September 1, 1999 of, a security interest (the
"Security Interest") in all accounts, accounts receivable and contract rights,
inventory, equipment and machinery, trademarks, trade names and service marks,
patents, licenses, chattel paper, instruments, documents, letters of credit and
general intangibles, and all proceeds of any of the foregoing, all as more
particularly described on Schedule A attached hereto and made a part hereof
(the"Collateral"), to secure the performance of the following obligations of the
Borrower (hereinafter collectively referred to as the "Indebtedness"):
(i) Borrower's liabilities and obligations under the Loan
Documents as defined in paragraph 5(b) below;
(ii) Borrower's liabilities and obligations under the
September Loan, the September Loan Agreement and any and all documents
executed in connection therewith, as amended and/or restated
(collectively, the "September Loan Documentation"); and
(iii) Borrower's liabilities and obligations under the July
Loan, the Unsecured Credit Agreement and any and all documents executed
in connection therewith, as amended and/or restated (collectively, the
"July Loan Documentation"); and
(iv) Any other obligations of the Borrower in favor of Lender
which may now exist or which may hereinafter arise pursuant to any
future loan transaction between the Borrower and the Lender.
(b) The Borrower is hereby deemed a "debtor" and the Lender is
hereby deemed a "secured party" as those terms are used in the Connecticut
Uniform Commercial Code.
2. COVENANTS AND WARRANTIES OF THE BORROWER. The Borrower hereby
warrants and covenants:
2
(a) That except for the security interest granted hereby, and the
Security Interests shown on Schedule B attached hereto and made a part hereof,
the Borrower:
(i) is the owner of the Collateral, free and clear of any
lien, security interest, encumbrance or claim of right,
(ii) shall defend the Collateral against any and all claims
and demands of all persons at any time claiming the same or any
interest therein, and
(iii) shall execute and deliver to the Lender such financing
statements, or other documents as the Lender may at any time or from
time to time reasonably require or which may be necessary or
appropriate to establish and maintain a valid and enforceable security
interest in the Collateral as security for the Indebtedness, subject to
no prior security interests or encumbrances.
(b) That the Collateral shall be kept only at the Borrower's
principal place of business at 0000 Xxxxxxxx Xxx Xxxxx, 00xx Xxxxx, Xxxxx, XX
00000 and at the locations, if any, set forth on Schedule C, attached hereto and
made a part hereof (collectively, the "Premises") except as required in the
ordinary course of business; that the Borrower will promptly notify the Lender
of any change in the location of the Collateral, and that the Borrower will not
remove the Collateral from the Premises, except as hereinbefore or hereafter
permitted, without the written consent of the Lender.
(c) That the Borrower shall immediately notify the Lender in writing
of any change in or discontinuance of any of the Borrower's places of business
or other facilities listed in this Amended and Restated Security Agreement,
including any schedules attached hereto.
(d) That the Borrower will not sell or offer to sell or otherwise
transfer the Collateral or any interest therein without written consent of the
Lender, except that the Borrower may, at the Borrower's own expense, in the
ordinary course of business, sell any of the inventory normally held by the
Borrower for such purpose, and use and consume, in the ordinary course of
business, any raw materials, supplies and materials normally held by the
Borrower for such purpose. Unless an Event of Default (as hereinafter defined)
has occurred and is continuing, the Borrower
3
shall have the right, without the consent of the Lender, to remove and dispose
of, free from the Security Interest of this Agreement, such Collateral as from
time to time may become worn or obsolete or no longer usable in the Borrower's
business, provided that if any such Collateral is replaced with other property,
such other property shall be deemed to be subject to this Amended and Restated
Security Agreement.
(e) That the Borrower shall have and maintain insurance at all times
with respect to all Collateral against risks of fire (including so-called
extended coverage), theft, and other risks as the Lender may require and, in the
case of motor vehicles, collision, and provide the Lender with a copy of such
policies containing such terms, in such form, for such periods and written by
such companies as may be satisfactory to the Lender, such insurance naming the
Lender as an additional insured or loss payee; that all policies of insurance
shall provide for thirty (30) days' written minimum cancellation notice to the
Lender and at the request of the Lender shall be delivered to and held by the
Lender; and that the Lender may act as attorney-in-fact for the Borrower in
obtaining, adjusting, settling and cancelling such insurance and endorsing any
drafts in accordance with the terms and conditions set forth in the December and
September Loan Agreements.
(f) That the Borrower shall keep the Collateral free and clear of
any lien, security interest or encumbrance other than that granted herein and
those set forth in the attached Schedule B, and in good order and repair and
shall not waste or destroy the Collateral in violation of any statute or
ordinance; and that the Lender may examine and inspect the Collateral during
normal business hours at any time, wherever located, in accordance with Section
5.01(f) of the December and September Loan Agreements.
(g) That the Borrower shall pay promptly when due all taxes and
assessments upon the Collateral or for its use or operation, except as otherwise
provided pursuant to Section 5.02(a)(ii) of the December and September Loan
Agreements.
(h) That the Borrower is a corporation duly organized and existing
under the laws of the State of Florida, that the execution, delivery and
performance hereof are within the Borrower's corporate powers, have been duly
authorized, are not in contravention of any law, the Borrower's charter, bylaws,
or any indenture or undertaking to which the Borrower is a party or
4
by which it is bound.
(i) That at the time any account receivable becomes subject to a
Security Interest in favor of the Lender said account shall be a good and valid
account representing an undisputed, bona fide indebtedness incurred by the
account debtor named therein (the "Account Debtor") for merchandise held subject
to delivery instructions or theretofore shipped or delivered pursuant to a
contract of sale, or for services theretofore performed by the Borrower with or
for the Account Debtor; no agreement under which any extraordinary deduction or
discount may be claimed shall have been made with the Account Debtor of any such
account except as disclosed in writing to the Lender; and the Borrower shall be
the lawful owner of all such accounts and shall have good right to pledge, sell,
assign and transfer the same and to subject the same to a Security Interest in
favor of the Lender. No such account shall have been or shall thereafter be
sold, assigned or transferred to any person other than the Lender or in any way
encumbered except to the Lender and the Borrower shall defend the same against
the lawful claims and demands of all persons.
(j) That the Borrower shall immediately notify the Lender of all
cases involving the return, rejection, repossession, loss or damage of or to
merchandise covered by accounts receivable, except in the ordinary course of the
Borrower's business; of any request for credit or adjustment or replacement
merchandise or other dispute arising with respect to accounts receivable, except
in the ordinary course of the Borrower's business; and generally of all
extraordinary happenings and events affecting accounts receivable or the value
or amount thereof, if, within sixty (60) days after the extraordinary event, the
matter at issue has not been satisfactorily resolved.
(k) That the Borrower shall at all reasonable times and from time to
time allow the Lender, by or through any of its officers, agents or accountants,
to inspect the Collateral and to examine, inspect or make extracts from the
Borrower's books and records in accordance with Section 5.01(f) of the December
and September Loan Agreements and to arrange for verification of accounts
receivable, under reasonable procedures, directly with account debtors or by
other methods; shall furnish to the Lender upon request additional statements of
any accounts receivable, together with all notes or other papers evidencing the
same and any guaranty, securities or other documents or information
5
relating thereto; shall furnish such reports, in form satisfactory to the
Lender, as to its accounts receivable as may be requested by the Lender under
this Amended and Restated Security Agreement or under the December and September
Loan Agreements, and shall perform, execute or deliver all such additional and
further acts, deeds, assurances and instruments as may be required to vest in
and assure to the Lender its perfected rights hereunder and in any Collateral.
3. LENDER'S RIGHTS TO DISCHARGE ENCUMBRANCES, ETC. At its option,
either after an Event of Default has occurred and is continuing or after the
Borrower fails to take such action or make such payment or to contest such
action or payment in good faith as hereinafter stated within fifteen (15) days
after notice thereof given by the Lender to the Borrower, Lender may discharge
taxes, liens or security interests or other third party encumbrances at any
times levied or placed on the Collateral, and may pay for insurance and the
maintenance and preservation of the Collateral; provided that, if Borrower
contests such action or payment and Borrower reserves for any such potential
liability in accordance with standard accounting practices the Lender shall not
have the right to discharge such lien. The Lender shall have no obligation to
the Borrower to make any such expenditures nor shall the making thereof relieve
the Borrower of any default provision contained in this Amended and Restated
Security Agreement, the December Loan Agreement, the note evidencing the
December Loan (the "December Note"), or any other Loan Document (as hereinafter
defined) or contained in the September Loan Documentation or the July Loan
Documentation. Any such payments made under this Paragraph 3 and not reimbursed
by the Borrower within ten (10) days of demand therefor shall be added to the
outstanding principal balance of the December or September Loans, at the
Lender's option. The total amount of additional payments so made by the Lender
and not otherwise reimbursed by the Borrower shall be secured by this Amended
and Restated Security Agreement in the same manner as this Amended and Restated
Security Agreement secures the repayment of the Indebtedness.
4. RIGHTS PRIOR TO DEFAULT. Until an Event of Default, the Borrower may
have possession of the Collateral and use it in any lawful manner not
inconsistent with this Amended and Restated Security Agreement, the December or
September Loan Agreement or any other Loan Documents or the September Loan
Documentation, and not inconsistent with any policy of insurance thereon.
5. DEFAULT. The Borrower shall be in default under this
6
Amended and Restated Security Agreement upon the happening (an "Event of
Default") of any of the following events or conditions:
(a) failure to make any payments within ten (10) days after such
payment is due, or failure to perform any of the obligations required, or comply
with any covenant, under this Amended and Restated Security Agreement within
thirty (30) days after notice thereof has been given by Lender to Borrower;
(b) the occurrence of any event of default (and the expiration of
applicable cure periods, if any) by the Borrower under any of the instruments
executed in connection with the December Loan, which instruments include,
without limitation, the December Loan Agreement, the December Note, the Amended
and Restated Patent, Trademark and License Security Agreement of even date
herewith (the "Amended and Restated Patent Security Agreement"), the Second
Amended and Restated Registration Rights Agreement of even date herewith (the
"Second Amended and Restated Registration Rights Agreement") and such other
documentation as may be executed in connection with the December Loan together
with any subsequent amendments or modifications thereto (collectively, the "Loan
Documents"); or
(c) the occurrence of any event of default (and the expiration of
applicable cure periods, if any) by the Borrower under the September Note, the
September Loan Agreement and the September Loan Documentation, as amended and/or
restated.
6. RIGHTS OF LENDER UPON DEFAULT. (a) Without limiting the rights of
the Lender as contained in the December and September Loan Agreements and the
Amended and Restated Patent Security Agreement, upon an Event of Default and at
any time thereafter (a "Post-Default Period") the Lender shall have the remedies
of a secured party under the Connecticut Uniform Commercial Code, or the law of
another jurisdiction if it shall be applicable, including, without limitation,
the right to take possession of the Collateral, and for that purpose the Lender
may, without legal process, so far as the Borrower can give authority therefor,
enter upon any premises on which the Collateral or any part thereof may be
situated and remove the same therefrom, provided such entry shall be done
lawfully. During a Post-Default Period, the Borrower shall, at the request of
the Lender, notify the Account Debtors of the Security Interest of the Lender in
any account, and will indicate on all xxxxxxxx to the Account Debtors that the
accounts are payable to the Lender. Notwithstanding the foregoing sentence, the
Lender may so notify
7
the Account Debtors during a Post-Default Period of the Security Interest of the
Lender in any account, and direct the Account Debtors to pay the accounts to the
Lender. Any proceeds of accounts thereafter received by the Borrower shall be
turned over to the Lender daily in the exact form in which they are received.
(b) The Lender may require the Borrower during a Post-Default Period
to assemble the Collateral and make it available to the Lender at a place to be
designated by the Lender which is reasonably convenient to both parties. Unless
the Collateral is perishable or threatens to decline rapidly in value or is of a
type customarily sold on a recognized market, the Lender will give the Borrower
reasonable notice of the time and place of any public sale thereof or of the
time after which any private sale or any other intended disposition thereof is
to be made. The requirements of reasonable notice shall be met if such notice is
mailed, postage prepaid, to the address of the Borrower shown in paragraph 2(b)
hereof at least five days before the time of the scheduled sale or disposition.
The Borrower shall be and remain liable for any deficiency remaining after
applying the proceeds of disposition first to the reasonable expenses of
repossessing, holding, preparing for and executing the sale, reasonable
attorney's fees and legal expenses incurred by the Lender in connection
therewith, and then to the satisfaction of the indebtedness secured hereunder.
7. PERFECTION. (a) The Security Interest granted herein shall, to the
extent provided by applicable law, be perfected by the filing of a UCC-1
Financing Statement, duly executed by the Borrower and the Lender, with the
Secretary of the State of Florida, and any other filing office which the Lender
in its sole discretion deems appropriate. The failure of Lender at any time to
perfect its Security Interest in any part of the Collateral shall not constitute
a waiver of its right to perfect such interest at a later date. Borrower shall
cooperate in all respects with Lender in the perfection of Lender's Security
Interests granted herein or in any other Loan Document, including without
limitation executing such other financing statements, notices and documents and
furnishing to Lender such other information as Lender shall request in order to
perfect its Security Interest in any of the Collateral.
(b) At the request of Lender made at any time during the term of the
December Loan, the September Loan or the July Loan for any reason, Borrower
shall execute a mortgage and
8
conveyance of patents, trademarks, licenses and other proprietary rights in
favor of Lender, in form acceptable for filing with the U.S. Patent and
Trademark Office in accordance with 35 U.S.C. ss.261. Such mortgage and
conveyance shall be on substantially the same terms as the Amended and Restated
Patent Security Agreement, except that such mortgage and conveyance shall
provide for the absolute mortgaging and conveyancing of such rights, subject to
defeasance by Borrower upon payment of the indebtedness and the satisfaction of
the obligations hereby secured. Lender is hereby authorized to file such
mortgage and conveyance with the U.S. Patent and Trademark Office.
(c) Borrower hereby irrevocably constitutes and appoints the Lender,
with full power of substitution, as its true and lawful attorney-in-fact, with
power, in the name of the attorney-in-fact or in the name of Borrower, to take
action on its behalf in carrying out the terms of this Section 7, including
without limitation to execute and record financing statements and to execute and
record with the U.S. Patent and Trademark Office a mortgage and conveyance of
patents, trademarks, licenses and other proprietary rights in favor of Lender as
provided herein. Lender hereby acknowledges that this grant of a
power-of-attorney is coupled with an interest and ratifies all that such
attorney shall lawfully do or cause to be done by virtue hereof. This power of
attorney shall be irrevocable until the Indebtedness secured hereby shall have
been paid in full and all financing arrangements between Borrower and Lender
with respect to the December Loan, the September Loan and the July Loan have
been terminated. Borrower acknowledges and agrees that the grant of this power
of attorney is not intended to limit or restrict in any way the rights and
remedies of Lender under the other Loan Documents, the September Loan
Documentation or the July Loan Documentation, but rather is intended to
facilitate the exercise of such rights and remedies.
8. FORBEARANCE NOT A WAIVER. No forbearance on the part of the Lender
to take action upon an Event of Default shall operate as a waiver of any other
Event of Default or of the same Event of Default on a future occasion.
9. MODIFICATION. This Amended and Restated Security Agreement may not
be modified or amended except by a writing signed by both the Borrower and the
Lender.
10. AMENDED AND RESTATED PATENT SECURITY AGREEMENT. This Agreement is
supplemental to the Amended and Restated Patent
9
Security Agreement, and the Lender may exercise its rights under both agreements
collectively or under each agreement independent of the other.
11. SEVERABILITY. A provision of this Amended and Restated Security
Agreement deemed invalid or unenforceable under any applicable law shall not
serve to invalidate the remainder of this Amended and Restated Security
Agreement.
12. CONSTRUCTION. This Amended and Restated Security Agreement and all
rights and obligations hereunder, including matters of construction, validity
and performance, shall be governed by the laws of the State of Connecticut.
13. BINDING EFFECT. All rights of the Lender hereunder shall inure to
the benefit of its successors and assigns, and all obligations of the Borrower
shall bind its heirs, personal representatives, successors and assigns.
14. HEADINGS. Headings are for convenience only and shall not be deemed
part of this Amended and Restated Security Agreement.
15. BORROWER WAIVERS. THE BORROWER ACKNOWLEDGES THAT THE TRANSACTION OF
WHICH THIS AMENDED AND RESTATED SECURITY AGREEMENT IS A PART IS A COMMERCIAL
TRANSACTION AND MAKES THE FOLLOWING WAIVERS:
A. THE BORROWER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, THE BENEFITS OF ALL VALUATION, APPRAISEMENT, HOMESTEAD,
EXEMPTION, STAY, REDEMPTION AND MORATORIUM LAWS, NOW IN FORCE OR WHICH
MAY HEREAFTER BECOME LAWS.
B. THE BORROWER HEREBY WAIVES THE RIGHT TO A JURY TRIAL.
C. THE BORROWER HEREBY CONSENTS TO THE JURISDICTION OF ANY
LOCAL, STATE, OR FEDERAL COURT LOCATED WITHIN THE STATE OF FLORIDA OR
CONNECTICUT AND WAIVES ANY OBJECTION WHICH THE BORROWER MAY HAVE BASED
ON IMPROPER VENUE OR FORUM NON CONVENIENS, TO THE CONDUCT OF ANY
PROCEEDING IN ANY SUCH COURT AND WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON BORROWER, AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE
MADE BY MAIL OR MESSENGER DIRECTED TO BORROWER AT THE ADDRESS SET FORTH
IN SECTION 8.02 OF THE DECEMBER LOAN
10
AGREEMENT AND SECTION 9.02 OF THE SEPTEMBER LOAN AGREEMENT AND THAT
SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON THE EARLIER OF
ACTUAL RECEIPT OR THREE (3) DAYS AFTER THE SAME SHALL HAVE BEEN POSTED
TO THE BORROWER'S ADDRESS. THE BORROWER WAIVES ANY BOND OR SURETY OR
SECURITY UPON SUCH BOND WHICH, MIGHT, BUT FOR THIS WAIVER, BE REQUIRED
OF THE LENDER. NOTHING CONTAINED IN THIS SECTION AFFECTS THE RIGHT OF
THE LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR AFFECTS THE RIGHT OF THE LENDER TO BRING ANY ACTION OR PROCEEDING
AGAINST THE BORROWER OR BORROWER'S PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION.
D. THE BORROWER HEREBY AGREES NOT TO COMMENCE ANY LEGAL
PROCEEDING AGAINST THE LENDER IN THE JURISDICTION OF ANY LOCAL, STATE,
OR FEDERAL COURT LOCATED WITHIN THE STATE OF FLORIDA UNLESS THE LENDER
EXPRESSLY CONSENTS THERETO IN WRITING.
11
IN WITNESS WHEREOF, the parties have signed and delivered this
agreement on the day and year first above written.
BORROWER:
KOS PHARMACEUTICALS, INC.
By_______________________________________
Name: Xxxxxx X. Xxxx
Title: President
LENDER:
________________________________
XXXXXXX XXXXXXX
12
SCHEDULE A
DEBTOR/BORROWER: KOS PHARMACEUTICALS, INC.
SECURED PARTY/LENDER: XXXXXXX XXXXXXX
For purposes of this Amended and Restated Security Agreement, the term
"Collateral" shall mean all right, title and interest in and to any and all
tangible property (other than real property), accounts, accounts receivable and
contract rights, inventory, equipment and machinery, trademarks, trade names and
service marks, patents, licenses, chattel paper, instruments, documents, letters
of credit and general intangibles, and whether now owned or hereafter acquired
by the Borrower (to be used interchangeably with the term "Debtor" as that term
is defined or understood under the Connecticut Uniform Commercial Code) wherever
located, and any additions and accessions thereto and replacements and renewals
thereof, and all proceeds of any of the foregoing, including, without
limitation:
1. ACCOUNTS - All presently owned and hereafter acquired accounts,
accounts receivable, contract rights, bills, acceptances, and other
forms of obligations arising out of the sale, lease or consignment of
goods or the rendition of services by the Borrower; together with any
property evidencing or relating to the Accounts (such as guaranties,
credit insurance, Letters of Credit), any security for the Accounts,
all books and records relating thereto, and all Proceeds of any of the
foregoing, including returned or reclaimed inventory.
2. INVENTORY - All presently owned and hereafter acquired inventory of
every nature, kind, and description, wherever located, including,
without limitation, raw materials, goods, work in process, finished
goods, parts or supplies; all goods and property held for sale or lease
or to be furnished under contracts of service; and all goods and
inventory returned, reclaimed or repossessed, together with all
Proceeds of any of the foregoing.
3. EQUIPMENT - All presently owned and hereafter acquired equipment,
whether or not affixed to realty, including, without limitation,
trucks, trailers, motors, tools, dies, parts, jigs, goods, accessories,
handling and delivery equipment, fixtures, improvements, office
machines and furniture, together with all Proceeds of any of the
foregoing, and all accessions, accessories, replacements and
13
the rights of the Borrower under any manufacturer's warranties relating
to the foregoing.
4. CHATTEL PAPER - All presently owned and hereafter acquired chattel
paper, including, but not limited to, any writing or writings which
evidence both a monetary obligation and a security interest in or a
lease of specific goods, together with all Proceeds of any of the
foregoing.
5. INSTRUMENTS - All presently owned and hereafter acquired instruments,
including, without limitation, bills of exchange, notes, and all
negotiable instruments, all certificated securities, all certificates
of deposit and any other writing which evidences a right to the payment
of money and is not itself a security agreement or lease and is of a
type which is in the ordinary course of business transferred by
delivery with any necessary endorsement or assignment, together with
all Proceeds of any of the foregoing.
6. DOCUMENTS - All presently owned and hereafter acquired documents,
including, but not limited to, documents of title (as that term is
defined in the Uniform Commercial Code) and any and all receipts,
including, but not limited to, receipts of the kind described in
Article 7 of the Connecticut Uniform Commercial Code, together with all
Proceeds of any of the foregoing.
7. LETTERS OF CREDIT - All letters of credit under which Borrower is or
hereafter will be the customer or the beneficiary, including, but not
limited to, any written undertaking to pay money conditioned upon
presentation of specified documents, and advices of letters of credit,
together with all Proceeds of any of the foregoing.
8. GENERAL INTANGIBLES - All presently owned and hereafter acquired
general intangibles, including, without limitation, any personal
property, choses in action, causes of action, designs, plans, Goodwill,
tax refunds, Licenses, franchises, Patents, Trademarks, trade secrets,
know-how, rights of Borrower to and interests of Borrower in research
and development of the Borrower, copyrights, and customer lists, and
all rights under license agreements for use of the same, together with
all Proceeds of any of the foregoing.
9. PATENTS - All presently owned and hereafter acquired patents
14
and patent applications, including, without limitation, the inventions
and improvements described and claimed therein, those patents listed on
Schedule A-1 attached hereto and made a part hereof, and any and all
patents, patent applications and other rights and interests in and to
the Borrower's products Niaspan(R)and Nicostatin(R), and (a) the
reissues, divisions, continuations, renewals, extensions and
continuations-in-part thereof, (b) all income, royalties, damages and
payments now and hereafter due and/or payable under and with respect
thereto, including, without limitation, damages and payments for past
or future infringements thereof, (c) the right to xxx for past, present
and future infringements thereof, and (d) all rights corresponding
thereto throughout the world.
10. TRADEMARKS - trademarks, service marks, trademark registrations,
service xxxx registrations, trade names and trademark registrations,
including, without limitation, the trademarks/service marks Niaspan(R)
and Nicostatin(R), and (a) renewals or extensions, thereof, (b) all
income, royalties, damages and payments now and hereafter due and/or
payable with respect thereto, including, without limitation, damages
and payments for past or future infringements thereof, (c) the right to
xxx for past, present and future infringements thereof, and (d) all
rights corresponding thereto throughout the world.
11. LICENSES - license agreements with any other party, whether Borrower is
a licensor or licensee under any such license agreement, and the right
to prepare for sale, sell and advertise for sale, all Inventory now or
hereafter owned by Borrower and now or hereafter covered by such
licenses.
12. GOODWILL - the goodwill of Borrower's business connected with and
symbolized by the Trademarks.
13. PROCEEDS - All presently owned and hereafter acquired proceeds, as that
term is defined in the Connecticut Uniform Commercial Code, including,
without limitation, whatever is received upon the use, lease, sale,
exchange, collection, any other utilization or any disposition of any
of the Collateral described on this Schedule A, whether cash or
non-cash, all rental or lease payments, accounts, chattel paper,
instruments, documents, contract rights, general intangibles,
equipment, inventory, substitutions, additions, accessions,
replacements, products, and renewals of, for, or
15
to such property and all insurance therefor.
16
