Exhibit 99.3
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Security Agreement") is made and dated as of
April 10, 2001 by and among AVRE, INC., a Nevada corporation, BINARY ASSOCIATES,
INC., a Colorado corporation, AMERICAN PLASMA, INC., a Texas corporation, BHM
LABS, INC., an Arkansas corporation, SERACARE ACQUISITIONS, INC., a Nevada
corporation, SERACARE TECHNOLOGY, INC., a Nevada corporation, SERACARE LIFE
SCIENCES, INC., a California corporation and THE WESTERN STATES GROUP, INC., a
California corporation (collectively, the "Debtors" and each a "Debtor"), and
SANWA BANK CALIFORNIA, as collateral agent (in such capacity, the "Collateral
Agent") for the Administrative Agent, the Issuing Bank and the Lenders under
(and as those terms and capitalized terms not otherwise defined herein are
defined in) that certain Credit Agreement dated as of April__, 2001 by and among
SeraCare, Inc., a Delaware corporation (the "Company"), the Collateral Agent,
the Administrative Agent, the Issuing Bank and the Lenders from time to time
party thereto (as amended, extended and replaced from time to time, the "Credit
Agreement").
RECITALS
A. Pursuant to the Credit Agreement, the Issuing Bank and the Lenders have
agreed to extend credit to the Company from time to time.
B. As a condition precedent to the obligation to continue to extend credit
under the Credit Agreement, the Debtors have executed and delivered the
Continuing Guaranty dated as of April __, 2001 (the "Guaranty") for the benefit
of the Administrative Agent pursuant to which the Debtors have guaranteed
payment of the Obligations (as defined in the Credit Agreement).
C. As a condition precedent to the obligation to continue to extend credit
under the Credit Agreement, and as security for the payment and performance of
Debtors' obligations under the Guaranty (the "Obligations"), the Debtors are
required to execute and deliver this Security Agreement, and to grant to the
Collateral Agent on behalf of itself, the Administrative Agent, the Issuing Bank
and the Lenders (collectively, the "Secured Parties") and to create a security
interest in certain property of Debtors, as hereinafter provided.
NOW, THEREFORE, in consideration of the above Recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
1. Appointment of Collateral Agent. Pursuant to Section 11 of the Credit
Agreement, each Secured Party has appointed the Collateral Agent as its
collateral agent
under the Loan Documents (including, without limitation, this Security
Agreement), and the Collateral Agent has accepted such appointment. The
Collateral Agent shall act as secured party, agent, bailee and custodian for the
exclusive benefit of the Secured Parties with respect to the Collateral (as
defined below). The Debtors agree that the Collateral Agent will act with
respect to the Collateral for the exclusive benefit of the Secured Parties and
is not, and shall not at any time in the future be, in any manner or to any
extent, subject to the direction or control of Debtor except as expressly
permitted hereunder, under the other Loan Documents or as required by law.
2. Grant of Security Interest. Each Debtor hereby pledges, assigns and
grants to the Collateral Agent, for the benefit of the Secured Parties, a
security interest in the property described in Paragraph 3 below (collectively
and severally, the "Collateral") to secure payment and performance of the
Obligations.
3. Collateral. The Collateral shall consist of all right, title and
interest of each Debtor in and to the following:
3(a) All now existing and hereafter arising receivables, accounts,
contracts, contract rights, chattel paper, documents, instruments, investment
property, commercial tort claims, health-care-insurance receivables, and general
intangibles of such Debtor (including U.S. Governmental claims and receivables
governed by the Federal Assignment of Claims Act of 1940, as amended
("Assignment of Claims Act"), whether or not arising out of or in connection
with the sale or lease of goods or the rendering of services, and all rights of
such Debtor now and hereafter arising in and to all security agreements,
guaranties, leases and other writings securing or otherwise relating to any such
receivables, accounts, contracts, contract rights, chattel paper, documents,
instruments and general intangibles;
3(b) All inventory of such Debtor, now owned and hereafter acquired,
wherever located, including, without limitation, all merchandise, goods and
other personal property which are held for sale or lease, all raw materials,
work in process, materials used or consumed in such Debtor's business and
finished goods, all goods in which such Debtor has an interest in mass or a
joint or other interest or gifts of any kind (including goods in which such
Debtor has an interest or right as consignee), and all goods which are returned
to or repossessed by such Debtor, together with all additions and accessions
thereto and replacements therefor and products thereof and documents therefor;
3(c) All equipment of such Debtor, now owned and hereafter acquired,
wherever located, and all parts thereof and all accessions, additions,
attachments, improvements, substitutions and replacements thereto and therefor,
including, without limitation, all machinery, tools, dies, blueprints,
catalogues, computer hardware and software, furniture, furnishings and fixtures;
3(d) All now existing and hereafter acquired Computer Hardware and
Software Collateral, Copyright Collateral, Patent Collateral, Trademark
Collateral and
Trade Secrets Collateral (as those terms are defined in Paragraph 13 below)
(collectively, the "Intellectual Property Collateral");
3(e) All deposit accounts, now existing and hereafter arising or
established, maintained in such Debtor's name with any financial institution,
and any and all funds at any time held therein and all certificates, instruments
and other writings, if any, from time to time representing, evidencing or
deposited into such accounts, and all interest, dividends, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of the foregoing;
3(f) All now existing and hereafter acquired books, records,
writings, data bases, information and other property relating to, used or useful
in connection with, embodying, incorporating or referring to, any of the
foregoing Collateral;
3(g) All other property of such Debtor now or hereafter in the
possession, custody or control of the Collateral Agent, and all property of such
Debtor in which the Collateral Agent now has or hereafter acquires a security
interest for the benefit of the Secured Parties;
3(h) Rights under insurance policies, letter-of-credit rights, and
supporting obligations, including without limitation guaranties;
3(i) All now existing and hereafter acquired cash and cash
equivalents held by such Debtor not otherwise included in the foregoing
Collateral; and
3(j) All products and proceeds of the foregoing Collateral. For
purposes of this Security Agreement, the term "proceeds" includes whatever is
receivable or received when Collateral or proceeds thereof is sold, collected,
exchanged or otherwise disposed of, whether such disposition is voluntary or
involuntary, and includes, without limitation, all rights to payment, including
return premiums, with respect to any insurance relating thereto.
"Collateral" shall not include any general intangible that is the
subject of a written agreement which specifically prohibits assignment thereof
or grant of a security interest therein but only to the extent of such
prohibition, and only to the extent that the terms and provisions of a such
written agreement, document or instrument creating or evidencing such property
or any rights relating thereto expressly prohibit the granting of a security
interest therein or condition the granting of a security interest therein on the
consent of a third party whose consent has not been obtained or would cause, or
allow a third party to cause, forfeiture of such property upon the granting of a
security interest therein or a breach under any written agreement relating
thereto.
4. Debtors' Obligations. The Obligations secured by this Security
Agreement shall consist of all obligations of Debtors under the Guaranty and
under any other Loan Document, and any Indebtedness of Debtor to any Lender in
connection with any Hedge Transactions, whether now existing or hereafter
arising, voluntary or involuntary, whether or not jointly owed with others,
direct or indirect, absolute or
contingent, liquidated or unliquidated, and whether or not from time to time
decreased or extinguished and later increased, created or incurred.
5. Representations and Warranties. In addition to all representations and
warranties of each Debtor set forth in the other Loan Documents, which are
incorporated herein by this reference, each Debtor hereby represents and
warrants that:
5(a) Except as permitted by the Credit Agreement and except for the
Lien in favor of the Collateral Agent for the benefit of the Secured Parties
granted hereunder, no Person has (or, in the case of after-acquired Collateral,
at the time such Debtor acquires rights therein, will have) any right, title,
claim or interest (by way of security interest or other Lien or charge) in,
against or to the Collateral except for Permitted Liens.
5(b) All information heretofore, herein or hereafter supplied to the
Collateral Agent or any Secured Party by or on behalf of such Debtor with
respect to the Collateral is accurate and complete in all material respects.
5(c) Such Debtor has delivered to the Collateral Agent all
instruments, chattel paper and other items of Collateral in which a security
interest may only be or (in the case of chattel paper) may be perfected by
possession, together with such additional writings, including, without
limitation, assignments, with respect thereto as the Collateral Agent shall
request.
6. Covenants and Agreements of Debtors. In addition to all covenants and
agreements of each Debtor set forth in the other Loan Documents, which are
incorporated herein by this reference, each Debtor hereby agrees, at no cost or
expense to the Collateral Agent or any of the Secured Parties:
6(a) To do all acts that may be necessary to maintain, preserve and
protect the Collateral and the priority and perfected nature of the security
interest of the Collateral Agent for the benefit of the Secured Parties therein;
6(b) With respect to Collateral in possession of a third party, upon
the written request of the Collateral Agent, subject to and in accordance with
Paragraph 5(b) of the Credit Agreement, to join with the Collateral Agent in
notifying the third party of the Secured Parties' security interest and obtain
an acknowledgment from the third party that it is holding the Collateral subject
to the Lien of the Collateral Agent for the benefit of the Secured Parties;
6(c) Upon the written request of the Collateral Agent, to cooperate
with the Collateral Agent in obtaining control agreements in form and substance
satisfactory to the Collateral Agent with respect to Collateral consisting of
deposit accounts, investment property, letter of credit rights, and electronic
chattel paper;
6(d) Not to create any chattel paper without placing a legend on the
chattel paper acceptable to the Collateral Agent indicating that the Secured
Parties have a security interest in the chattel paper;
6(e) To appear in and defend any action or proceeding which may
affect its title to or the Collateral Agent's interest on behalf of the Secured
Parties in the Collateral;
6(f) Not to surrender or lose possession of (other than to the
Collateral Agent), sell, encumber, lease, rent, or otherwise dispose of or
transfer any Collateral or right or interest therein except as expressly
provided herein and in the other Loan Documents or otherwise permitted under the
Loan Documents, and to keep the Collateral free of all levies and security
interests or other Liens or charges except as permitted by the Credit Agreement;
provided, however, that, unless an Event of Default shall have occurred and be
continuing, such Debtor may, in the ordinary course of business, sell or lease
any Collateral consisting of inventory;
6(g) On demand by the Collateral Agent upon the occurrence and
during the continuance of an Event of Default, to account fully for and promptly
deliver to the Collateral Agent, in the form received, all documents, chattel
paper, instruments and agreements constituting Collateral hereunder and all
proceeds of the Collateral received, all endorsed to the Collateral Agent or in
blank, as requested by the Collateral Agent, and until so delivered all such
documents, instruments, agreements and proceeds shall be held by such Debtor in
trust for the Collateral Agent for the benefit of the Secured Parties, separate
from all other property of such Debtor;
6(h) To keep separate, accurate and complete records of the
Collateral and to provide the Collateral Agent and each of the Secured Parties
with such records and such other reports and information relating to the
Collateral as the Collateral Agent or any Secured Party may reasonably request
from time to time;
6(i) To give the Collateral Agent thirty (30) days prior written
notice of any change in such Debtor's chief place of business, such Debtor's
state of incorporation or legal name or trade name(s) or style(s) referred to in
Paragraph 11 below;
6(j) To keep the records concerning the Collateral at the
location(s) referred to in Paragraph 11 below and not to remove such records
from such location(s) without the prior written consent of the Collateral Agent;
6(k) To keep the Collateral at the location(s) referred to in
Paragraph 11 below and not to remove the Collateral from such location(s)
without the prior written consent of the Collateral Agent;
6(l) To keep the Collateral in good condition and repair in all
material respects except for ordinary wear and tear and not to cause or permit
any waste or unusual or unreasonable depreciation of the Collateral;
6(m) Except as otherwise permitted by Paragraph 7(n) of the Credit
Agreement, not to: (1) permit any Patent Collateral to lapse or become abandoned
or dedicated to the public or otherwise be unenforceable; (2) fail to continue
to use any of such Trademark Collateral in order to maintain all such Trademark
Collateral in full force
free from any claim of abandonment for non-use, (3) fail to maintain as in the
past the quality of products and services offered under all of the Trademark
Collateral, (4) fail to employ all of the Trademark Collateral registered with
any Federal or state or foreign authority with an appropriate notice of such
registration, (5) use any of the Trademark Collateral registered with any
Federal or state or foreign authority except for the uses for which registration
or application for registration of all of the Trademark Collateral has been
made, or (6) do or permit any act or knowingly omit to do any act whereby any of
the Trademark Collateral may lapse or become invalid or unenforceable; (viii) do
or permit any act or knowingly omit to do any act whereby any of the Copyright
Collateral or any of the Trade Secrets Collateral may lapse or become invalid or
unenforceable or placed in the public domain except upon expiration of the end
of an unrenewable term of a registration thereof;
6(n) To notify the Collateral Agent immediately if it knows, or has
reason to know, that any application or registration relating to any material
item of the Intellectual Property Collateral may become abandoned or dedicated
to the public or placed in the public domain or invalid or unenforceable, or of
any adverse determination or development (including the institution of, or any
such determination or development in, any proceeding in the United States Patent
and Trademark Office, the United States Copyright Office or any foreign
counterpart thereof or any court) regarding such Debtor's ownership of any
material Intellectual Property Collateral, its right to register the same or to
keep and maintain and enforce the same;
6(o) Not to file an application for the registration of any
Intellectual Property Collateral with the United States Patent and Trademark
Office, the United States Copyright Office or any similar office or agency in
any other country or any political subdivision thereof, unless it promptly
informs the Collateral Agent, and upon request of the Collateral Agent, executes
and delivers any and all agreements, instruments, documents and papers as the
Collateral Agent may reasonably request to evidence the Collateral Agent's
security interest in such Intellectual Property Collateral and the goodwill and
general intangibles of such Debtor relating thereto or represented thereby; and
6(p) With respect to Intellectual Property that is or becomes
Collateral hereunder, promptly to execute and deliver to the Collateral Agent
agreements in the forms of Exhibit A, Exhibit B, Exhibit C and Exhibit D hereto.
7. Authorized Action by Collateral Agent. Each Debtor hereby agrees that:
7(a) From time to time, without presentment, notice or demand, and
without affecting or impairing in any way the rights of the Collateral Agent
with respect to the Collateral, the obligations of such Debtor hereunder or the
Obligations, the Collateral Agent may, but shall not be obligated to and shall
incur no liability to such Debtor, any Secured Party or any third party for
failure to take any action which such Debtor is obligated by this Security
Agreement to do and to exercise such rights and powers as such Debtor might
exercise with respect to the Collateral.
7(b) The Collateral Agent may execute in its own name or in the name
of such Debtor and file one or more financing statements describing the
Collateral in such jurisdictions as deemed appropriate by the Collateral Agent
from time to time.
7(c) The Collateral Agent may file photostatic or other copies of
financing statements signed or authenticated by such Debtor or of this Security
Agreement in such jurisdictions as deemed appropriate by the Collateral Agent
from time to time.
7(d) Such Debtor hereby irrevocably appoints the Collateral Agent as
its attorney-in-fact following the occurrence and during the continuance of an
Event of Default to exercise such rights and powers, including without
limitation, to (i) collect by legal proceedings or otherwise and endorse,
receive and receipt for all dividends, interest, payments, proceeds and other
sums and property now or hereafter payable on or on account of the Collateral,
(ii) enter into any extension, reorganization, deposit, merger, consolidation or
other agreement pertaining to, or deposit, surrender, accept, hold or apply
other property in exchange for the Collateral, (iii) insure, process and
preserve the Collateral, (iv) transfer the Collateral to its own or its
nominee's name, (v) make any compromise or settlement, and take any action it
deems advisable, with respect to the Collateral and (vi) subject to the
provisions of Paragraph 8 below, notify any obligor on any Collateral to make
payment directly to the Collateral Agent.
8. Collection of Collateral Payments.
8(a) Each Debtor shall, at its sole cost and expense, endeavor to
obtain payment, when due and payable, of all sums due or to become due with
respect to any Collateral ("Collateral Payments" or a "Collateral Payment"),
including, without limitation, the taking of such action with respect thereto as
the Collateral Agent or any Secured Party may reasonably request, or, in the
absence of such request, as such Debtor may reasonably deem advisable; provided,
however, that following the occurrence and during the continuance of an Event of
Default such Debtor shall not, without the consent of the Collateral Agent,
grant or agree to any rebate, refund, compromise or extension with respect to
any Collateral Payment or accept any prepayment on account thereof. Upon the
request of the Collateral Agent at the direction of all the Secured Parties,
following the occurrence and during the continuance of an Event of Default and
notice from the Collateral Agent to the Company, such Debtor will notify and
direct any party who is or might become obligated to make any Collateral
Payment, to make payment thereof to such accounts as the Collateral Agent may
direct in writing and to execute all instruments and take all action required by
the Collateral Agent to ensure the rights of the Collateral Agent for the
benefit of the Secured Parties in any Collateral subject to the Federal
Assignment of Claims Act of 1940, as amended.
8(b) Upon the request of the Collateral Agent, which request will be
made only following the occurrence and during the continuance of an Event of
Default, each Debtor will, forthwith upon receipt, transmit and deliver to the
Collateral Agent, in the form received, all cash, checks, drafts and other
instruments for the payment of money (properly endorsed where required so that
such items may be collected by the
Collateral Agent) which may be received by such Debtor at any time as payment on
account of any Collateral Payment and if such request shall be made, until
delivery to the Collateral Agent, such items will be held in trust for the
Collateral Agent and the Secured Parties and will not be commingled by such
Debtor with any of its other funds or property. Thereafter, the Collateral Agent
is hereby authorized and empowered to endorse the name of such Debtor on any
check, draft or other instrument for the payment of money received by the
Collateral Agent on account of any Collateral Payment if the Collateral Agent
believes such endorsement is necessary or desirable for purposes of collection.
8(c) Each Debtor will indemnify and save harmless the Collateral
Agent from and against all reasonable liabilities and expenses on account of any
adverse claim asserted against the Collateral Agent relating to any moneys
received by the Collateral Agent on account of any Collateral Payment and such
obligation of such Debtor shall continue in effect after and notwithstanding the
discharge of such Debtor's Obligations and the release of the security interest
granted in Paragraph 2 above.
9. Power of Attorney.
9(a) Each Debtor hereby grants to the Collateral Agent for the
benefit of the Secured Parties an exclusive, irrevocable power of attorney, with
full power and authority in the place and stead of such Debtor to take all such
action permitted under Paragraph 7 upon the occurrence and during the
continuance of an Event of Default. Each Debtor agrees to reimburse the
Collateral Agent upon demand for any costs and expenses, including, without
limitation, attorneys' fees, the Collateral Agent may incur while acting as such
Debtor's attorney-in-fact hereunder, all of which costs and expenses are
included in the Obligations secured hereby. It is further agreed and understood
between the parties hereto that such care as the Collateral Agent gives to the
safekeeping of its own property of like kind shall constitute reasonable care of
the Collateral when in the Collateral Agent's possession; provided, however,
that the Collateral Agent shall not be required to make any presentment, demand
or protest, or give any notice and need not take any action to preserve any
rights against any prior party or any other person in connection with the
Obligations or with respect to the Collateral.
9(b) To the fullest extent permitted by law, each Debtor hereby
grants to the Secured Parties a present, irrevocable, paid-up royalty-free world
wide and non-exclusive license under all Intellectual Property Collateral owned
by such Debtor or licensed to such Debtor with the right to sublicense (both on
the date hereof and in the future) to make, have made, reproduce, have
reproduced, prepare derivative works of, perform, or display (publicly or
otherwise) or otherwise use, sell, lease or distribute any products or
processes, except Intellectual Property Collateral as to which the Secured
Parties have a perfected security interest that permits exercise of the remedies
set forth herein upon an Event of Default. The Secured Parties shall have the
right to sublicense (with the right of any sublicensee to grant further
sublicenses) or unconditionally assign such license without such Debtor's
consent, limited only in the case of licenses to such Debtor of intellectual
property owned by unaffiliated third parties to the extent permitted in the
applicable license. Such license may be subject to the payment of royalties by
such Debtor to third parties.
10. Remedies. Upon the occurrence of an Event of Default, the Collateral
Agent may, without notice to or demand on any Debtor and in addition to all
rights and remedies available to the Collateral Agent and the Secured Parties
with respect to the Obligations, at law, in equity or otherwise, do any one or
more of the following:
10(a) Foreclose or otherwise enforce the Collateral Agent's security
interest in any manner permitted by law or provided for in this Security
Agreement.
10(b) Sell, lease or otherwise dispose of any Collateral at one or
more public or private sales at the Collateral Agent's place of business or any
other place or places, including, without limitation, any broker's board or
securities exchange, whether or not such Collateral is present at the place of
sale, for cash or credit or future delivery, on such terms and in such manner as
the Collateral Agent may determine.
10(c) Recover from any Debtor all costs and expenses, including,
without limitation, reasonable attorneys' fees (including the reasonable
allocated cost of internal counsel), incurred or paid by the Collateral Agent or
any Secured Party in exercising any right, power or remedy provided by this
Security Agreement.
10(d) Require each Debtor to assemble the Collateral and make it
available to the Collateral Agent at a place to be designated by the Collateral
Agent.
10(e) Enter onto property where any Collateral is located and take
possession thereof with or without judicial process.
10(f) Prior to the disposition of the Collateral, store, process,
repair or recondition it or otherwise prepare it for disposition in any manner
and to the extent the Collateral Agent deems appropriate and in connection with
such preparation and disposition, without charge, use any trademark, tradename,
copyright, patent or technical process used by any Debtor.
Each Debtor shall be given five (5) Business Days' prior notice of the time and
place of any public sale or of the time after which any private sale or other
intended disposition of Collateral is to be made, which notice such Debtor
hereby agrees shall be deemed commercially reasonable notice thereof. Such sale
may be made in a private or public sale on an as-is basis, without
representation or warranty of any kind, which terms each Debtor hereby agrees
shall be deemed commercially reasonable, and each Debtor acknowledges and agrees
that such terms in a public or private sale may result in prices and other terms
less favorable than might otherwise result and that Collateral Agent has no
obligation to delay sale of the Collateral to obtain higher prices or more
favorable terms for the Collateral. Upon any sale or other disposition pursuant
to this Security Agreement, the Collateral Agent shall have the right to
deliver, assign and transfer to the purchaser thereof the Collateral or portion
thereof so sold or disposed of. Each purchaser at any such sale or other
disposition (including the Collateral Agent) shall hold the Collateral free from
any claim or right of whatever kind, including any equity or right of redemption
of any Debtor and each Debtor specifically waives (to the extent permitted by
law) all rights of redemption, stay or appraisal which it has or may have under
any rule of law or statute now existing or hereafter adopted. Each Debtor waives
any right to require
the Secured Parties or the Collateral Agent to proceed against or exhaust all or
any portion of the Collateral and specifically acknowledges and agrees that
Collateral Agent and Secured Parties shall have the right to proceed directly
against any Debtor without first proceeding against all or any portion of the
Collateral and to abandon or fail to exercise its rights and remedies with
respect to all or any portion of the Collateral. Such election shall in no way
impair the liability of any Debtor or the remaining rights and remedies of
Secured Party and Collateral Agent. Notwithstanding anything to the contrary
contained herein, Secured Parties and Collateral Agent shall not be deemed to be
owner of all or any portion of the Collateral until any such party is a
successful purchaser at a foreclosure sale and has taken actual possession of
such Collateral.
11. Place of Business; Collateral Location; Records Location. Each Debtor
represents that its chief executive office is set forth on Schedule 1 attached
hereto; that the only trade name(s) or style(s) used by such Debtor are set
forth on said Schedule 1; and that, except as otherwise disclosed to the
Collateral Agent in writing prior to the date hereof, the Collateral and such
Debtor's records concerning the Collateral are located at its chief executive
office.
12. Miscellaneous Provisions.
12(a) Binding on Successors and Assigns. All provisions contained in
this Security Agreement or any document or agreement referred to herein or
relating hereto shall inure to the benefit of the Collateral Agent and the
Secured Parties and their respective successors and assigns, and shall be
binding upon each Debtor, its successors and assigns.
12(b) Amendment. This Security Agreement may not be amended or terms
or provisions hereof waived unless such amendment or waiver is in writing and
signed by the Collateral Agent and each Debtor.
12(c) Cumulative Rights; No Waiver. The rights, powers and remedies
of the Collateral Agent, and the Secured Parties hereunder are cumulative and in
addition to all rights, power and remedies provided under any and all agreements
between any Debtor and any of such Persons relating hereto, at law, in equity or
otherwise. Any delay or failure by the Collateral Agent or the Secured Parties
to exercise any right, power or remedy shall not constitute a waiver thereof by
such Persons, and no single or partial exercise by any of such Persons of any
right, power or remedy shall preclude other or further exercise thereof or any
exercise of any other rights, powers or remedies.
12(d) Entire Agreement. This Security Agreement and the documents
and agreements referred to herein embody the entire agreement and understanding
between the parties hereto and supersede all prior agreements and understandings
relating to the subject matter hereof and thereof.
12(e) Survival. All representations, warranties, covenants and
agreements herein contained on the part of the Debtors shall survive the
termination of this Security Agreement and shall be effective until the
Obligations are paid and performed in full or longer as expressly provided
herein.
12(f) Notices. All notices given by any party to the others shall be
in writing unless otherwise provided for herein, delivered by facsimile
transmission, by personal delivery or by overnight courier, addressed to the
party as set forth in the Guaranty.
12(g) Governing Law. This Security Agreement shall be governed by
and construed in accordance with the internal laws of the State of California
without giving effect to its choice of law rules.
12(h) Counterparts. This Security Agreement may be executed in any
number of counterparts, all of which together shall constitute one agreement.
12(i) Severability. The illegality or unenforceability of any
provision of this Security Agreement or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or enforceability
of the remaining provisions hereof or thereof.
12(j) Waiver of Hearing. Each Debtor expressly waives any
constitutional or other right to a judicial hearing prior to the time the
Collateral Agent takes possession or disposes of the Collateral upon the
occurrence of an Event of Default.
13. Intellectual Property Collateral. For purposes of this Security
Agreement, the following capitalized terms shall have the following meanings:
"Computer Hardware and Software Collateral" means all of each
Debtor's right, title and interest in all now existing and hereafter created or
acquired:
(a) Computer and other electronic data processing hardware,
integrated computer systems, central processing units, memory units, display
terminals, printers, features, computer elements, card readers, tape drives,
hard and soft disk drives, cables, electrical supply hardware, generators, power
equalizers, accessories and all peripheral devices and other related computer
hardware;
(b) Software programs (including both source code, object code and
all related applications and data files), whether owned, licensed or leased,
designed for use on the computers and electronic data processing hardware
described in subparagraph (a) above;
(c) Firmware associated therewith;
(d) Documentation (including flow charts, logic diagrams, manuals,
guides and specifications) with respect to such hardware, software and firmware
described in subparagraph (a) through (c) above; and
(e) Rights with respect to all of the foregoing, including, without
limitation, any and all of such Debtor's copyrights, licenses, options,
warranties, service contracts, program services, test rights, renewal rights and
indemnifications and any substitutions, replacements, additions or model
conversions of any of the foregoing.
"Copyright Collateral" means all of each Debtor's right, title and
interest in now existing and hereafter created or acquired copyrights and all
semi-conductor chip product mask works of such Debtor, whether statutory or
common law, registered or unregistered, now or hereafter in force throughout the
world including, without limitation, all of such Debtor's right, title and
interest in and to all copyrights and mask works registered in the United States
Copyright Office or anywhere else in the world, and all applications for
registration thereof, whether pending or in preparation, all copyright and mask
work licenses, the right of such Debtor to xxx for past, present and future
infringements of any thereof, all rights of such Debtor corresponding thereto
throughout the world, all extensions and renewals of any thereof and all
proceeds of the foregoing, including, without limitation, licenses, royalties,
income, payments, claims damages and proceeds of suit.
"Patent Collateral" means all of each Debtor's right, title and
interest in now existing and hereafter created or acquired:
(a) Letters patent and applications for letters patent throughout
the world, including all of such Debtor's patent applications in preparation for
filing anywhere in the world and with the United States Patent and Trademark
Office;
(b) Patent licenses;
(c) Reissues, divisions, continuations, continuations-in-part,
extensions, renewals and reexaminations of any of the items described in clauses
(a) and (b); and
(d) Proceeds of, and rights associated with, the foregoing
(including license royalties and proceeds of infringements suits), the right of
such Debtor to xxx third parties for past, present or future infringements of
any patent or patent application of such Debtor, and for breach of enforcement
of any patent license, and all rights corresponding thereto throughout the
world.
"Trademark Collateral" means all of each Debtor's right, title and
interest in now existing and hereafter created or acquired:
(a) Trademarks, trade names, corporate names, business names,
fictitious business names, trade styles, service marks, certification makers,
collective marks, logos, other source of business identifiers, prints and labels
on which any of the foregoing have appeared or appear, designs and general
intangibles of a like nature (all of the foregoing items in this clause (a)
being collectively called a "Trademark"), now existing anywhere in the world or
hereafter adopted or acquired, whether currently in use or not, all
registrations and recordings thereof and all applications in connection
therewith, whether pending or in preparation for filing, including
registrations, recordings and applications in the United States Patent and
Trademark Office or in any office or agency of the United States of America or
any State thereof or any foreign country;
(b) Trademark licenses;
(c) Reissues, extensions or renewals of any of the items described
in clauses (a) and (b);
(d) The goodwill of the business of such Debtor connected with the
use of, and symbolized by the items described in, clauses (a) and (b), and
(e) Proceeds of, and rights of such Debtor associated with, the
foregoing, including any claim by such Debtor against third parties for past,
present or future infringement or dilution of any Trademark, Trademark
registration or Trademark license, or for any injury to the goodwill associated
with the use of any such Trademark or for breach or enforcement of any Trademark
license.
"Trade Secrets Collateral" means common law and statutory trade
secrets and all other confidential or proprietary or useful information and all
know-how obtained by or used in or contemplated at any time for use in the
business of each Debtor (all of the foregoing being collectively called a "Trade
Secret"), whether or not such Trade Secret has been reduced to a writing or
other tangible form including all documents and things embodying, incorporating
or referring in any way to such Trade Secret, all Trade Secret licenses,
including the right to xxx for and to enjoin and to collect damages for the
actual or threatened misappropriation of any Trade Secret and for the breach or
enforcement of any such Trade Secret license.
14. Indemnification. Except to the extent arising from the gross
negligence of willful misconduct of an Indemnitee, each Debtor hereby agrees to
indemnify, pay and hold harmless the Collateral Agent, Administrative Agent,
Issuing Bank and each Lender and their respective officers, directors,
employees, attorneys and agents (collectively, the "Indemnitees") from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and disbursements of any kind
or nature whatsoever (including the fees and disbursements of counsel for such
Indemnitees) in connection with any investigative, administrative or judicial
proceedings, whether or not such Indemnitees shall be designated a party
thereto, and the expenses of investigation by scientists, engineers,
environmental consultants and similar technical personnel imposed on, incurred
by or asserted against such Indemnitees as a result of or in connection with the
Collateral or the enforcement of rights and remedies against the Collateral, or
sale or distribution of the Collateral (including any product liability claims).
To the extent that the undertaking set forth in the immediately preceding
sentence may be unenforceable, each Debtor shall contribute the maximum portion
which it is permitted to pay and satisfy under applicable law to the payment and
satisfaction of all such indemnified liabilities incurred by the Indemnitees or
any of them. Without limiting the generality of the foregoing, to the fullest
extent permitted by law, each Debtor hereby waives all rights for contribution
or any other rights of recovery with respect to liabilities, losses, damages,
costs and expenses that it might have under applicable law or otherwise against
any Indemnitee.
EXECUTED as of the day and year first above written.
AVRE, INC., a Nevada corporation
By: __________________________________
Name: ________________________________
Title: _______________________________
By: __________________________________
Name: ________________________________
Title: _______________________________
BINARY ASSOCIATES, INC., a Colorado
corporation
By: __________________________________
Name: ________________________________
Title: _______________________________
AMERICAN PLASMA, INC., a Texas
corporation
By: __________________________________
Name: ________________________________
Title: _______________________________
BHM LABS, INC., an Arkansas
corporation
By: __________________________________
Name: ________________________________
Title: _______________________________
SERACARE ACQUISITIONS, INC., a Nevada
corporation
By: __________________________________
Name: ________________________________
Title: _______________________________
THE WESTERN STATES GROUP, INC., a
California corporation
By: __________________________________
Name: ________________________________
Title: _______________________________
SERACARE TECHNOLOGY, INC., a Nevada
corporation
By: __________________________________
Name: ________________________________
Title: _______________________________
SERACARE LIFE SCIENCES, INC., a
California corporation
By: __________________________________
Name: ________________________________
Title: _______________________________
SANWA BANK CALIFORNIA, as Collateral
Agent
By: __________________________________
Name: ________________________________
Title: _______________________________
LIST OF OMITTED SCHEDULES AND EXHIBITS
The following Schedules and Exhibits to the Subsidiary Security Agreement
have been omitted from this Exhibit and shall be furnished supplementally to the
Commission upon request:
Schedule 1 Locations of Equipment, Inventory, Places of Business, Chief
Executive Office, and Books and Records and Tradenames
Exhibit A Supplemental Security Agreement (Trademarks)
Exhibit B Supplemental Security Agreement (Patents)
Exhibit C Supplemental Security Agreement (Copyrights)
Exhibit D Irrevocable Power of Attorney
