INTELLECTUAL PROPERTY SECURITY AGREEMENT
Exhibit 10.114
This Intellectual Property Security
Agreement is entered into as of December 19, 2008 by and between MIDCAP FUNDING
I, LLC ("Agent") and AVID BIOSERVICES, INC. ("Grantor").
RECITALS
A. The
Lenders have agreed to make certain advances of money and to extend certain
financial accommodation to Grantor (the "Loans") in the amounts and manner set
forth in that certain Loan and Security Agreement by and between Agent, the
Lenders, Peregrine Pharmaceuticals, Inc. and Grantor dated the Effective Date
(as the same may be amended, modified or supplemented from time to time, the
"Loan Agreement"; capitalized terms used herein are used as defined in the Loan
Agreement). The Lenders are willing to make the Loans to Grantor, but
only upon the condition, among others, that Grantor shall grant to Agent, for
the ratable benefit of the Lenders, a security interest in certain Copyrights,
Trademarks, Patents, and Mask Works (as each term is described below) to secure
the obligations of Grantor under the Loan Agreement.
B. Pursuant
to the terms of the Loan Agreement, Grantor has granted to Agent, for the
ratable benefit of the Lenders, a security interest in all of Grantor's right,
title and interest, whether presently existing or hereafter acquired, in, to and
under all of the Collateral.
NOW, THEREFORE, for good and valuable
consideration, receipt of which is hereby acknowledged, and intending to be
legally bound, as collateral security for the prompt and complete payment when
due of its obligations under the Loan Agreement, Grantor hereby represents,
warrants, covenants and agrees as follows:
AGREEMENT
To secure its obligations under the
Loan Agreement, Grantor grants and pledges to Agent, for the ratable benefit of
the Lenders, a security interest in all of Grantor's right, title and interest
in, to and under its intellectual property (all of which shall collectively be
called the "Intellectual Property Collateral"), including, without limitation,
the following:
(a) Any
and all copyright rights, copyright applications, copyright registrations and
like protections in each work or authorship and derivative work thereof, whether
published or unpublished and whether or not the same also constitutes a trade
secret, now or hereafter existing, created, acquired or held, including without
limitation those set forth on Exhibit A attached
hereto (collectively, the "Copyrights");
(b) Any
and all trade secrets, and any and all intellectual property rights in computer
software and computer software products now or hereafter existing, created,
acquired or held;
(c) Any
and all design rights that may be available to Grantor now or hereafter
existing, created, acquired or held;
(d) All
patents, patent applications and like protections including, without limitation,
improvements, divisions, continuations, renewals, reissues, extensions and
continuations-in-part of the same, including without limitation the patents and
patent applications set forth on Exhibit B attached
hereto (collectively, the "Patents");
(e) Any
trademark and servicemark rights, whether registered or not, applications to
register and registrations of the same and like protections, and the entire
goodwill of the business of Grantor connected with and symbolized by such
trademarks, including without limitation those set forth on Exhibit C attached
hereto (collectively, the "Trademarks");
(f) All
mask works or similar rights available for the protection of semiconductor
chips, now owned or hereafter acquired, including, without limitation those set
forth on Exhibit
D attached hereto (collectively, the “Mask
Works”);
(g) Any
and all claims for damages by way of past, present and future infringements of
any of the rights included above, with the right, but not the obligation, to xxx
for and collect such damages for said use or infringement of the intellectual
property rights identified above;
(h) All
licenses or other rights to use any of the Copyrights, Patents, Trademarks, or
Mask Works and all license fees and royalties arising from such use to the
extent permitted by such license or rights;
(i) All
amendments, extensions, renewals and extensions of any of the Copyrights,
Trademarks, Patents, or Mask Works; and
(j) All
proceeds and products of the foregoing, including without limitation all
payments under insurance or any indemnity or warranty payable in respect of any
of the foregoing.
This security interest is granted in
conjunction with the security interest granted to Agent, for the ratable benefit
of the Lenders, under the Loan Agreement. The rights and remedies of
Agent with respect to the security interest granted hereby are in addition to
those set forth in the Loan Agreement and the other Loan Documents, and those
which are now or hereafter available to Agent as a matter of law or
equity. Each right, power and remedy of Agent provided for herein or
in the Loan Agreement or any of the Loan Documents, or now or hereafter existing
at law or in equity shall be cumulative and concurrent and shall be in addition
to every right, power or remedy provided for herein and the exercise by Agent of
any one or more of the rights, powers or remedies provided for in this
Intellectual Property Security Agreement, the Loan Agreement or any of the other
Loan Documents, or now or hereafter existing at law or in equity, shall not
preclude the simultaneous or later exercise by any person, including Agent, of
any or all other rights, powers or remedies.
[Signature
page follows.]
2
IN WITNESS WHEREOF, the parties have
caused this Intellectual Property Security Agreement to be duly executed by its
officers thereunto duly authorized as of the first date written
above.
|
GRANTOR:
|
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| Address of Grantor: | AVID BIOSERVICES, INC. | |
|
By:
/s/ Xxxxxx
Xxxx
|
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| Attn: |
Title:
President
|
|
|
AGENT:
|
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| Address of Agent: | MIDCAP FUNDING I, LLC | |
| 0000 Xxx Xxxxxxxxxx Xxxx, Xxxxx 000 | By: /s/ Xxxxxx Xxxxxx | |
| Xxxxxxxx,
Xxxxxxxx 00000
Attn:
Portfolio Management- Life Sciences
|
Title:
Managing
Director
|
3
EXHIBIT
A
Copyrights
|
Description
|
Registration/
Application
Number
|
Registration/
Application
Date
|
|
None
|
4
EXHIBIT
B
Patents
|
Description
|
Registration/
Application
Number
|
Registration/
Application
Date
|
|
None
|
5
EXHIBIT
C
Trademarks
|
Description
|
Registration/
Application
Number
|
Registration/
Application
Date
|
|
None
|
6
EXHIBIT
D
Mask
Works
|
Description
|
Registration/
Application
Number
|
Registration/
Application
Date
|
|
None
|
7
