SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement"), dated as of November 1,
1999, is made between NORTH AMERICAN VACCINE, INC., a Canadian corporation
("Debtor") and [*], a Delaware corporation ("Secured Party").
Debtor and Secured Party hereby agree as follows:
SECTION 1 DEFINITIONS; INTERPRETATION.
(a) All capitalized terms used in this Agreement and not otherwise
defined herein shall have the meanings assigned to them in the Reimbursement
Agreement.
(b) As used in this Agreement, the following terms shall have the
following meanings:
"BANK" means Bank of America, N.A.
"LOAN AGREEMENT" means the loan agreement dated November 1, 1999,
between Bank and Debtor, pursuant to which Bank has agreed to make certain
revolving loans to Debtor.
"COLLATERAL" has the meaning set forth in Section 2.
"DOCUMENTS" means the Reimbursement Agreement and all other documents,
agreements and instruments delivered to Secured Party in connection therewith or
with the Obligations.
"EVENT OF DEFAULT" has the meaning set forth in Section 8.
"LIEN" means any mortgage, deed of trust, pledge, security interest,
assignment, deposit arrangement, charge or encumbrance, lien, or other type of
preferential arrangement.
"REIMBURSEMENT AGREEMENT" means that certain Reimbursement Agreement
dated November 1, 1999 made by Debtor in favor of Secured Party, as amended,
modified, renewed, extended or replaced from time to time.
"OBLIGATIONS" means the indebtedness, liabilities and other obligations
of Debtor to Secured Party under or in connection with this Agreement and the
other Documents, including, without limitation, all amounts owing under the
Reimbursement Agreement and all fees and all other amounts payable by Debtor to
Secured Party thereunder or in connection therewith, whether now existing or
hereafter arising, and whether due or to become due, absolute or contingent,
liquidated or unliquidated, determined or undetermined.
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* Confidential treatment requested.
"PERMITTED LIEN" means (i) any Lien in favor of Secured Party; (ii) any
Lien that is subordinate to the Lien on the Collateral created by this
Agreement; (iii) any Lien in favor of Bank of America, N.A. under that certain
credit agreement dated as of November 1, 1999; (iv) any Liens existing as of the
date hereof and disclosed in writing to Secured Party.
"PERSON" means an individual, corporation, partnership, joint venture,
trust, unincorporated organization, governmental agency or authority, or any
other entity of whatever nature.
"UCC" means the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of New York; PROVIDED, HOWEVER, in the event
that, by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of the security interest in any Collateral is governed by
the Uniform Commercial Code as in effect in a jurisdiction other than the State
of New York, the term "UCC" shall mean the Uniform Commercial Code as in effect
in such other jurisdiction for purposes of the provisions hereof relating to
such attachment, perfection or priority and for purposes of definitions related
to such provisions.
(c) Where applicable and except as otherwise defined herein, terms used
in this Agreement shall have the meanings assigned to them in the UCC.
(d) In this Agreement, (i) the meaning of defined terms shall be
equally applicable to both the singular and plural forms of the terms defined;
and (ii) the captions and headings are for convenience of reference only and
shall not affect the construction of this Agreement.
SECTION 2 SECURITY INTEREST.
(a) As security for the payment and performance of the Obligations,
Debtor hereby pledges, assigns, transfers, hypothecates and sets over to Secured
Party, and hereby grants to Secured Party a security interest in, all of
Debtor's right, title and interest in, to and under the following property,
wherever located and whether now existing or owned or hereafter acquired or
arising (collectively, the "Collateral"):
(i) all accounts, accounts receivable, contract rights, rights to
payment, chattel paper, letters of credit, documents, securities, money and
instruments, and investment property, whether held directly or through a
securities intermediary, and other obligations of any kind owed to Debtor,
however evidenced;
(ii) all deposits and deposit accounts with any bank, savings and loan
association, credit union or like organization, and all funds and amounts
therein, and whether or not held in trust, or in custody or safekeeping, or
otherwise restricted or designated for a particular purpose;
(iii) all inventory, including, without limitation, all materials, raw
materials, parts, components, work in progress, finished goods, merchandise,
supplies, and all other goods which are held for sale, lease or other
disposition or furnished under contracts of service or consumed in Debtor's
2.
business, including, without limitation, those held for display or demonstration
or out on lease or consignment;
(iv) all equipment, including, without limitation, all machinery,
furniture, furnishings, fixtures, trade fixtures, tools, parts and supplies,
automobiles, trucks, tractors and other vehicles, appliances, computer and other
electronic data processing equipment and other office equipment, computer
programs and related data processing software, and all additions, substitutions,
replacements, parts, accessories, and accessions to and for the foregoing;
excluding, however, the equipment collateral identified in the agreements
referred to in Schedule 4(c)(ii) of the Loan Agreement;
(v) all general intangibles and other personal property of Debtor,
including, without limitation, (A) all tax and other refunds, rebates or credits
of every kind and nature to which Debtor is now or hereafter may become
entitled; (B) all intellectual property and all rights therein of any type or
description, including, without limitation, all inventions and discoveries,
patents and patent applications, copyrights and applications for copyright
(together with the underlying works of authorship) whether or not registered,
together with any renewals and extensions thereof, trademarks, service marks and
trade names, and applications for registration of such trademarks, service marks
and trade names, trade secrets, trade dress, trade styles, logos, other source
of business identifiers, mask-works, mask-work registrations, mask-work
applications, software, confidential and proprietary information, customer
lists, other license rights, advertising materials, operating manuals, methods,
processes, know-how, algorithms, formulae, databases, quality control
procedures, product, service and technical specifications, operating, production
and quality control manuals, sales literature, drawings, specifications, blue
prints, descriptions, inventions, name plates and catalogs, and the entire
goodwill of or associated with the businesses now or hereafter conducted by
Debtor connected with and symbolized by any of the aforementioned properties and
assets, and all licenses relating to any of the foregoing, all reissuance,
continuations and continuations-in-part of the foregoing, all other rights
derived from or associated with the foregoing, including the right to xxx and
recover for past infringement, and all income and royalties with respect
thereto; (C) all good will, choses in action and causes of action; (D) all
interests in limited and general partnerships and limited liability companies;
and (E) all indemnity agreements, guaranties, insurance policies, insurance
claims, and other contractual, equitable and legal rights of whatever kind or
nature;
(vi) all books, records and other written, electronic or other
documentation in whatever form maintained by or for Debtor in connection with
the ownership of the assets described in this Section 2 or the conduct of its
business or evidencing or containing information relating to the Collateral; and
(vii) all products and proceeds, including insurance proceeds, of any
and all of the foregoing.
(b) Anything herein to the contrary notwithstanding, (i) Debtor shall
remain liable under any contracts, agreements and other documents included in
the Collateral, to the extent set forth therein, to perform all of its duties
and obligations thereunder to the same extent as if this Agreement had not been
3.
executed, (ii) the exercise by Secured Party of any of the rights hereunder
shall not release Debtor from any of its duties or obligations under such
contracts, agreements and other documents included in the Collateral, and (iii)
Secured Party shall not have any obligation or liability under any contracts,
agreements and other documents included in the Collateral by reason of this
Agreement, nor shall Secured Party be obligated to perform any of the
obligations or duties of Debtor thereunder or to take any action to collect or
enforce any such contract, agreement or other document included in the
Collateral hereunder.
(c) Notwithstanding the foregoing provisions of this Section 2, the
grant of a security interest as provided herein shall not extend to, and the
term "Collateral" shall not include, (1) that certain U.S. Patent No. 5,425,946
which is covered by a security interest in favor of Bankers Trust Company as
evidenced by the filing in the U.S. Patent and Trademark Office (the "Excluded
Patent Collateral"), and (2) any general intangibles of Debtor (whether owned or
held as licensee or lessee, or otherwise), to the extent that (i) such general
intangibles are not assignable or capable of being encumbered as a matter of law
or under the terms of the license, lease or other agreement applicable thereto
(but solely to the extent that any such restriction shall be enforceable under
applicable law), without the consent of the licensor or lessor thereof or other
applicable party thereto and (ii) such consent has not been obtained; PROVIDED,
HOWEVER, that the foregoing grant of security interest shall extend to, and the
term "Collateral" shall include, (A) any general intangible which is an account
receivable or a proceed of, or otherwise related to the enforcement or
collection of, any account receivable, or goods which are the subject of any
account receivable, (B) any and all proceeds of any general intangibles which
are otherwise excluded to the extent that the assignment or encumbrance of such
proceeds is not so restricted, and (C) upon obtaining the consent of any such
licensor, lessor or other applicable party's consent with respect to any such
otherwise excluded general intangibles, such general intangibles as well as any
and all proceeds thereof that might have theretofore have been excluded from
such grant of a security interest and the term "Collateral."
(d) This Agreement shall create a continuing security interest in the
Collateral which shall remain in effect until terminated in accordance with
Section 19 hereof.
SECTION 3 FINANCING STATEMENTS, ETC. Debtor shall execute and deliver
to Secured Party concurrently with the execution of this Agreement, and at any
time and from time to time thereafter, all financing statements, assignments,
continuation financing statements, termination statements, account control
agreements, and other documents and instruments, in form reasonably satisfactory
to Secured Party, and take all other action, as Secured Party may reasonably
request, to perfect and continue perfected, maintain the priority of or provide
notice of the security interest of Secured Party in the Collateral and to
accomplish the purposes of this Agreement.
SECTION 4 REPRESENTATIONS AND WARRANTIES. Debtor represents and
warrants to Secured Party that:
4.
(a) Debtor is a corporation duly organized, validly existing and in
good standing under the law of the jurisdiction of its incorporation and has all
requisite power and authority to execute, deliver and perform its obligations
under this Agreement.
(b) The execution, delivery and performance by Debtor of this Agreement
have been duly authorized by all necessary corporate action of Debtor, and this
Agreement constitutes the legal, valid and binding obligation of Debtor,
enforceable against Debtor in accordance with its terms, except in each case as
such enforceability may be limited by bankruptcy, insolvency reorganization,
liquidation, moratorium or other similar laws of general application and
equitable principles relating to or affecting creditors' rights.
(c) Except as otherwise disclosed in writing by Debtor to Secured
Party, no authorization, consent, approval, license, exemption of, or filing or
registration with, any governmental authority or agency, or approval or consent
of any other Person, is required for the due execution, delivery or performance
by Debtor of this Agreement.
(d) Debtor's chief executive office and principal place of business is
located at the address set forth in SCHEDULE 1; all other locations where Debtor
conducts business or Collateral is kept are set forth in SCHEDULE 1.
(e) Except as otherwise disclosed in writing by Debtor to Secured
Party, Debtor is the sole and complete owner of the Collateral, free from any
Lien other than Permitted Liens.
(f) Other than the Excluded Patent, Collateral; all of Debtor's U.S.
and foreign patents and patent applications, copyrights (whether or not
registered), applications for copyright, trademarks, service marks and trade
names (whether registered or unregistered), and applications for registration of
such trademarks, service marks and trade names, are set forth in SCHEDULE 2.
SECTION 5 COVENANTS. So long as any of the Obligations remain
unsatisfied, Debtor agrees that:
(a) Debtor shall appear in and defend any action, suit or proceeding
which may affect to a material extent its title to, or right or interest in, or
Secured Party's right or interest in, the Collateral, and shall do and perform
all reasonable acts that may be necessary and appropriate to maintain, preserve
and protect the Collateral.
(b) Debtor shall comply in all material respects with all laws,
regulations and ordinances, and all policies of insurance, relating in a
material way to the possession, operation, maintenance and control of the
Collateral.
(c) Debtor shall give prompt written notice to Secured Party (and in
any event not later than 30 days following any change described below in this
subsection) of: (i) any change in the location of Debtor's chief executive
office or principal place of business, (ii) any change in the locations set
forth in Schedule 1; (iii) any change in its name, (iv) any changes in,
additions to or other modifications of its trade names and trade styles set
forth in Schedule 1 or Schedule 2, and (v) any changes in its identity or
5.
structure in any manner which might make any financing statement filed hereunder
incorrect or misleading.
(d) Debtor shall keep separate, accurate and complete books and records
with respect to the Collateral, disclosing Secured Party's security interest
hereunder.
(e) Debtor shall not surrender or lose possession of (other than to
Secured Party), sell, lease, rent, or otherwise dispose of or transfer any of
the Collateral or any right or interest therein, except in the ordinary course
of business; PROVIDED that no such disposition or transfer of Collateral
consisting of investment property or instruments shall be permitted while any
Event of Default exists.
(f) Debtor shall keep the Collateral free of all Liens except Permitted
Liens.
(g) Debtor shall pay and discharge all taxes, fees, assessments and
governmental charges or levies imposed upon it with respect to the Collateral
prior to the date on which penalties attach thereto, except to the extent such
taxes, fees, assessments or governmental charges or levies are being contested
in good faith by appropriate proceedings.
(h) Debtor shall maintain and preserve its corporate existence, its
rights to transact business and all other rights, franchises and privileges
necessary or desirable in the normal course of its business and operations and
the ownership of the Collateral, except in connection with any transactions
expressly permitted by the Documents.
(i) Upon the request of Secured Party, Debtor shall (i) immediately
deliver to Secured Party, or an agent designated by it, appropriately endorsed
or accompanied by appropriate instruments of transfer or assignment, all
documents and instruments, all certificated securities with respect to any
investment property, all letters of credit and all accounts and other rights to
payment at any time evidenced by promissory notes, trade acceptances or other
instruments, (ii) cause any securities intermediaries to show on their books
that Secured Party is the entitlement holder with respect to any investment
property, and/or obtain account control agreements in favor of Secured Party
from such securities intermediaries, in form and substance satisfactory to
Secured Party, with respect to any investment property, as requested by Secured
Party, (iii) xxxx all documents and chattel paper with such legends as Secured
Party shall reasonably specify, and (iv) obtain consents from any letter of
credit issuers with respect to the assignment to Secured Party of any letter of
credit proceeds.
(j) Debtor shall at any reasonable time and from time to time permit
Secured Party or any of its agents or representatives to visit the premises of
Debtor and inspect the Collateral and to examine and make copies of and
abstracts from the records and books of account of Debtor.
(k) Debtor shall: (i) with such frequency as Secured Party may require,
furnish to Secured Party such lists of customers and other information relating
to the accounts and other rights to payment as Secured Party shall reasonably
request; (ii) give only normal discounts, allowances and credits as to accounts
6.
and other rights to payment, in the ordinary course of business, according to
normal trade practices utilized by Debtor, and enforce all accounts and other
rights to payment strictly in accordance with their terms, except that Debtor
may grant any extension of the time for payment or enter into any agreement to
make a rebate or otherwise to reduce the amount owing on or with respect to, or
compromise or settle for less than the full amount thereof, any account or other
right to payment, in the ordinary course of business, according to normal and
prudent trade practices utilized by Debtor; and (iii) upon the request of
Secured Party (A) at any time, notify all or any designated portion of the
account debtors and other obligors on the accounts and other rights to payment
of the security interest hereunder, and (B) upon the occurrence and during the
continuance of an Event of Default, notify the account debtors and other
obligors on the accounts and other rights to payment or any designated portion
thereof that payment shall be made directly to Secured Party or to such other
Person or location as Secured Party shall specify.
(l) Debtor shall (i) notify Secured Party of any material claim made or
asserted against the Collateral by any Person and of any change in the
composition of the Collateral or other event which could materially adversely
affect the value of the Collateral or Secured Party's Lien thereon; (ii) furnish
to Secured Party such statements and schedules further identifying and
describing the Collateral and such other reports and other information in
connection with the Collateral as Secured Party may reasonably request, all in
reasonable detail; and (iii) upon reasonable request of Secured Party make such
demands and requests for information and reports as Debtor is entitled to make
in respect of the Collateral.
(m) If and when Debtor shall obtain rights to any new patents,
trademarks, service marks, trade names or copyrights, or otherwise acquire or
become entitled to the benefit of, or apply for registration of, any of the
foregoing, Debtor (i) shall promptly notify Secured Party thereof and (ii)
hereby authorizes Secured Party to modify, amend, or supplement SCHEDULE 2 and
from time to time to include any of the foregoing and make all necessary or
appropriate filings with respect thereto.
(n) Debtor shall not enter into any agreement (including any license or
royalty agreement) pertaining to any of its patents, copyrights, trademarks,
service marks and trade names, except for non-exclusive licenses in the ordinary
course of business.
(o) Debtor shall give Secured Party immediate notice of the
establishment of any new deposit account and any new securities account with
respect to any investment property.
SECTION 6 COLLECTION OF ACCOUNTS. Until Secured Party exercises its
rights hereunder to collect the accounts and other rights to payment, Debtor
shall endeavor in the first instance diligently to collect all amounts due or to
become due on or with respect to the accounts and other rights to payment. At
the request of Secured Party, upon the occurrence and during the continuance of
any Event of Default, all remittances received by Debtor shall be held in trust
for Secured Party and, in accordance with Secured Party's instructions, remitted
to Secured Party or deposited to an account of Secured Party in the form
received (with any necessary endorsements or instruments of assignment or
transfer.) At the request of Secured Party, upon and after the occurrence of any
Event of Default, Secured Party shall be entitled to receive all distributions
7.
and payments of any nature with respect to any investment property or
instruments, and all such distributions or payments received by the Debtor shall
be held in trust for Secured Party and, in accordance with Secured Party's
instructions, remitted to Secured Party or deposited to an account with Secured
Party in the form received (with any necessary endorsements or instruments of
assignment or transfer.) Following the occurrence of an Event of Default any
such distributions and payments with respect to any investment property held in
any securities account shall be held and retained in such securities account, in
each case as part of the Collateral hereunder. Additionally, Secured Party shall
have the right, upon the occurrence of an Event of Default, following prior
written notice to the Debtor, to vote and to give consents, ratifications and
waivers with respect to any investment property and instruments, and to exercise
all rights of conversion, exchange, subscription or any other rights, privileges
or options pertaining thereto, as if Secured Party were the absolute owner
thereof; PROVIDED that Secured Party shall have no duty to exercise any of the
foregoing rights afforded to it and shall not be responsible to the Debtor or
any other Person for any failure to do so or delay in doing so.
SECTION 7 AUTHORIZATION; SECURED PARTY APPOINTED ATTORNEY-IN-FACT.
Secured Party shall have the right to, in the name of Debtor, or in the name of
Secured Party or otherwise, upon notice to but without the requirement of assent
by Debtor, and Debtor hereby constitutes and appoints Secured Party (and any of
Secured Party's officers, employees or agents designated by Secured Party) as
Debtor's true and lawful attorney-in-fact, with full power and authority to: (i)
sign any of the financing statements and other documents and instruments which
must be executed or filed to perfect or continue perfected, maintain the
priority of or provide notice of Secured Party's security interest in the
Collateral (including any notices to or agreements with any securities
intermediary); (ii) assert, adjust, xxx for, compromise or release any claims
under any policies of insurance; and (iii) execute any and all such other
documents and instruments, and do any and all acts and things for and on behalf
of Debtor, which Secured Party may deem reasonably necessary or advisable to
maintain, protect, realize upon and preserve the Collateral and Secured Party's
security interest therein and to accomplish the purposes of this Agreement.
Secured Party agrees that, except upon and during the continuance of an Event of
Default, it shall not exercise the power of attorney, or any rights granted to
Secured Party, pursuant to clauses (ii) and (iii). The foregoing power of
attorney is coupled with an interest and irrevocable so long as the Obligations
have not been paid and performed in full. Debtor hereby ratifies, to the extent
permitted by law, all that Secured Party shall lawfully and in good faith do or
cause to be done by virtue of and in compliance with this Section 7.
SECTION 8 EVENTS OF DEFAULT. Any of the following events which shall
occur and be continuing shall constitute an "Event of Default":
(a) Debtor shall fail to pay when due any amount payable hereunder or
under the Reimbursement Agreement or any other Document or in respect of the
Obligations or an "Event of Default" shall occur under the Loan Agreement.
(b) Any representation or warranty by Debtor under or in connection
with this Agreement any other Document shall prove to have been incorrect in any
material respect when made or deemed made.
8.
(c) Debtor shall fail to perform or observe in any material respect any
other term, covenant or agreement contained in this Agreement, the Reimbursement
Agreement or any other Document on its part to be performed or observed and any
such failure shall remain unremedied for a period of 5 days from the occurrence
thereof.
(d) Any material impairment in the value of the Collateral or the
priority of Secured Party's Lien hereunder.
(e) Any levy upon, seizure or attachment of any of the Collateral.
(h) Any Event of Default shall occur under the Bank Credit Agreement.
SECTION 9 REMEDIES.
(a) Upon the occurrence and continuance of any Event of Default,
Secured Party may declare any of the Obligations to be immediately due and
payable and shall have, in addition to all other rights and remedies granted to
it in this Agreement, the Reimbursement Agreement or any other Document, all
rights and remedies of a secured party under the UCC and other applicable laws.
(b) For the purpose of enabling Secured Party to exercise its rights
and remedies under this Section 9 or otherwise in connection with this
Agreement, Debtor hereby grants to Secured Party an irrevocable, non-exclusive
and assignable license (exercisable without payment or royalty or other
compensation to Debtor) to use, license or sublicense any intellectual property
Collateral.
(c) The cash proceeds actually received from the sale or other
disposition or collection of Collateral, and any other amounts received in
respect of the Collateral the application of which is not otherwise provided for
herein, shall be applied FIRST, to the payment of the reasonable costs and
expenses of Secured Party in exercising or enforcing its rights hereunder and in
collecting or attempting to collect any of the Collateral, and to the payment of
all other amounts payable to Secured Party pursuant to Section 13 hereof; and
SECOND, to the payment of the Obligations. Any surplus thereof which exists
after payment and performance in full of the Obligations shall be promptly paid
over to Debtor or otherwise disposed of in accordance with the UCC or other
applicable law. Debtor shall remain liable to Secured Party for any deficiency
which exists after any sale or other disposition or collection of Collateral.
SECTION 10 CERTAIN WAIVERS. Debtor waives, to the fullest extent
permitted by law, (i) any right of redemption with respect to the Collateral,
whether before or after sale hereunder, and all rights, if any, of marshalling
of the Collateral or other collateral or security for the Obligations; (ii) any
right to require Secured Party (A) to proceed against any Person, (B) to exhaust
any other collateral or security for any of the Obligations, (C) to pursue any
remedy in Secured Party's power, or (D) to make or give any presentments,
demands for performance, notices of nonperformance, protests, notices of
protests or notices of dishonor in connection with any of the Collateral; and
(iii) all claims, damages, and demands against Secured Party arising out of the
repossession, retention, sale or application of the proceeds of any sale of the
Collateral.
9.
SECTION 11 NOTICES. All notices or other communications hereunder
shall be in writing (including by facsimile transmission) and mailed, sent or
delivered to the respective parties hereto at or to their respective addresses
or facsimile numbers set forth below their names on the signature pages hereof,
or at or to such other address or facsimile number as shall be designated by any
party in a written notice to the other parties hereto. All such notices and
other communications shall be effective (i) if delivered by hand, when
delivered; (ii) if sent by mail, upon the earlier of the date of receipt or five
business days after deposit in the mail, first class [(or air mail, with respect
to communications to be sent to or from the United States)]; and (iii) if sent
by facsimile transmission, when sent.
SECTION 12 NO WAIVER; CUMULATIVE REMEDIES. No failure on the part of
Secured Party to exercise, and no delay in exercising, any right, remedy, power
or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right, remedy, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights and remedies under this Agreement are cumulative
and not exclusive of any rights, remedies, powers and privileges that may
otherwise be available to Secured Party.
SECTION 13 COSTS AND EXPENSES.
(a) Subject to the terms of any other written fee agreement between
Debtor and Secured Party or Guarantor, Debtor agrees to pay on demand:
(i) [Intentionally omitted];
(ii) all audit, consulting, search, recording, filing and similar
costs, fees and expenses incurred or sustained by Secured Party in connection
with this Agreement or the Collateral; and
(iii) all costs and expenses of Secured Party, and the fees and
disbursements of counsel, in connection with the enforcement or attempted
enforcement of, and preservation of any rights or interests under, this
Agreement and the Reimbursement Agreement, including in any out-of-court workout
or other refinancing or restructuring or in any bankruptcy case, and the
protection, sale or collection of, or other realization upon, any of the
Collateral.
(b) Any amounts payable to Secured Party under this Section 13 or
otherwise under this Agreement if not paid upon demand shall bear interest from
the date of such demand until paid in full, at the default rate specified in the
Loan Agreement.
SECTION 14 BINDING EFFECT. This Agreement shall be binding upon, inure
to the benefit of and be enforceable by Debtor, Secured Party and their
respective successors and assigns.
SECTION 15 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York, except as
required by mandatory provisions of law and to the extent the validity or
10.
perfection of the security interests hereunder, or the remedies hereunder, in
respect of any Collateral are governed by the law of a jurisdiction other than
New York.
SECTION 16 ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the
entire agreement of the parties with respect to the subject matter hereof and
shall not be amended except by the written agreement of the parties.
SECTION 17 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
all applicable laws and regulations. If, however, any provision of this
Agreement shall be prohibited by or invalid under any such law or regulation in
any jurisdiction, it shall, as to such jurisdiction, be deemed modified to
conform to the minimum requirements of such law or regulation, or, if for any
reason it is not deemed so modified, it shall be ineffective and invalid only to
the extent of such prohibition or invalidity without affecting the remaining
provisions of this Agreement, or the validity or effectiveness of such provision
in any other jurisdiction.
SECTION 18 COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute but one and the same agreement.
SECTION 19 TERMINATION. Upon payment and performance in full of all
Obligations, this Agreement shall terminate and Secured Party shall promptly
execute and deliver to Debtor such documents and instruments reasonably
requested by Debtor as shall be necessary to evidence termination of all
security interests given by Debtor to Secured Party hereunder; PROVIDED,
HOWEVER, that the obligations of Debtor under Section 13 hereof shall survive
such termination.
11.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, as of the date first above written.
NORTH AMERICAN VACCINE, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------
Title: Vice President Finance
00000 Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
-----------------------------------
Attn: Vice President
Fax: (000) 000-0000
[*]
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* Confidential treatment requested.
SCHEDULE 1
to the Security Agreement
1. LOCATIONS OF CHIEF EXECUTIVE OFFICE AND OTHER LOCATIONS, INCLUDING OF
COLLATERAL
a. Chief Executive Office and Principal Place of Business:
North American Vaccine, Inc.
00000 Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
b. Other locations where Debtor conducts business or any Collateral is
kept:
North American Vaccine, Inc.
0000 Xxxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
North American Vaccine, Inc.
00000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
AMVAX, Inc.
00000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
American Vaccine Corporation
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
2. TRADE NAMES AND TRADE STYLES; OTHER CORPORATE, TRADE OR FICTITIOUS NAMES,
ETC.
See Schedule B attached hereto.
S-1.
SCHEDULE 2
to the Security Agreement
1. PATENTS AND PATENT APPLICATIONS.
See Schedule A attached hereto.
2. COPYRIGHTS (REGISTERED AND UNREGISTERED) AND COPYRIGHT APPLICATIONS.
None.
3. TRADEMARKS, SERVICE MARKS AND TRADE NAMES AND TRADEMARK, SERVICE XXXX AND
TRADE NAME APPLICATIONS.
See Schedule B attached hereto.
S-2
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE A
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PATENTS AND PATENT APPLICATIONS OF ASSIGNOR
------------------------------------------------------------------------------------------------------------------------------------
ISSUED U.S. PATENTS
------------------------------------------------------------------------------------------------------------------------------------
Method for the High Level Blake, et al. NVX 08/798,760 February 11, 1997 Notice of
Expression, Purification and (co-exclusive (Notice of Allowance Allowance issued
Refolding of the Outer Membrane license with PMC) issued Jan. 1999) January 1999
Group B Porin Proteins (fee paid April
1999)
------------------------------------------------------------------------------------------------------------------------------------
Method for the High Level Blake, et al. NVX & Rockefeller 5,439,808 August 8, 1995 Patent
Expression, Purification and University
Refolding of the Outer Membrane (co-exclusive
Group B Porin Proteins from license with PMC)
Neisseria Meningitidis
------------------------------------------------------------------------------------------------------------------------------------
Method for the High Level Blake, et al. NVX 5,747,287 May 5, 1998 Patent
Expression, Purification and (co-exclusive
Refolding of the Outer Membrane license with PMC)
Group B Porin Proteins from
Neisseria Meningitidis
------------------------------------------------------------------------------------------------------------------------------------
Group A Streptococcal Blake et al. NVX & Rockefeller 5,866,135 February 2, 1999 Patent
Polysaccharide Immunogenic University
Compositions and Methods
------------------------------------------------------------------------------------------------------------------------------------
Method for the High Level Blake, et al. NVX 5,879,686 March 9, 1999 Patent
Expression, Purification and (co-exclusive
Refolding of the Outer Membrane license with PMC)
Group B Porin Proteins from
Neisseria Meningitidis
------------------------------------------------------------------------------------------------------------------------------------
U.S. PATENT APPLICATIONS
------------------------------------------------------------------------------------------------------------------------------------
[*] Tai, et al. NVX 08/096,181 July 23, 1993 Application
------------------------------------------------------------------------------------------------------------------------------------
[*] Tai, et al. NVX 08/449,358 May 24, 1995 Application
------------------------------------------------------------------------------------------------------------------------------------
[*] Xxxxxx, xx.xx. NVX 08/481,883 June 7, 1995 Application
------------------------------------------------------------------------------------------------------------------------------------
[*] Xxxxxx, D'Ambra NVX 08/753,242 November 22, 1996 Application
------------------------------------------------------------------------------------------------------------------------------------
[*] Tai, Blake NVX 08/923,992 September 5, 1997 Application
------------------------------------------------------------------------------------------------------------------------------------
[*] Xxxxxx, xx.xx. NVX 09/025,225 February 18, 1998 Application
------------------------------------------------------------------------------------------------------------------------------------
[*] Blake, et al. NVX 09/118/180 July 17, 1998 Application
------------------------------------------------------------------------------------------------------------------------------------
[*] Xxxxxxx, et al. NVX 09/120,044 July 21,1998 Application
------------------------------------------------------------------------------------------------------------------------------------
[*] Blake et al. NVX & Rockefeller 09/207,188 December 8, 1998 Application
University
------------------------------------------------------------------------------------------------------------------------------------
[*] Xxxxxx, Xxxxx NVX 09/221,620 December 23, 1998 Application
------------------------------------------------------------------------------------------------------------------------------------
[*] Xxxx-Xxxx, Xxxxx NVX 09/399,220 September 17, 1999 Application
------------------------------------------------------------------------------------------------------------------------------------
[*] Xxxxxx et al. NVX 09/376,911 August 18, 1999 Application
------------------------------------------------------------------------------------------------------------------------------------
* Confidential treatment requested.
A-1
---------------------------------------------------------------------------------------------------------------------------
SCHEDULE B
---------------------------------------------------------------------------------------------------------------------------
U.S. TRADEMARKS OF ASSIGNOR
---------------------------------------------------------------------------------------------------------------------------
XXXX STATUS APPL NO./ APPL./REGIS. DATE OWNER OF RECORD
REGIS. NO.
---------------------------------------------------------------------------------------------------------------------------
REGISTERED U.S. TRADEMARKS
---------------------------------------------------------------------------------------------------------------------------
Globe Design Registered 1,932,111 October 31, 1995 North American Vaccine, Inc.
---------------------------------------------------------------------------------------------------------------------------
AMVAX Registered 1,967,632 April 16, 1996 North American Vaccine, Inc.
---------------------------------------------------------------------------------------------------------------------------
TRINAVACEL Registered 2,101,121 September 30, 1997 American Vaccine Corporation
---------------------------------------------------------------------------------------------------------------------------
TRIVAX Registered 2,118,360 December 2, 1997 American Vaccine Corporation
---------------------------------------------------------------------------------------------------------------------------
XXXX Registered 2,267,812 August 3, 1999 American Vaccine Corporation
---------------------------------------------------------------------------------------------------------------------------
PENDING U.S. TRADEMARK APPLICATIONS
---------------------------------------------------------------------------------------------------------------------------
THE IMPORTANCE OF OUR WORK Pending 75/190,826 October 29, 1996 American Vaccine Corporation
GROWS BIGGER EVERY DAY
---------------------------------------------------------------------------------------------------------------------------
NEISVAC-C Pending Not Avail. August 26, 1999 American Vaccine Corporation
---------------------------------------------------------------------------------------------------------------------------
NEISIVA Pending Not Avail. August 26, 1999 American Vaccine Corporation
---------------------------------------------------------------------------------------------------------------------------
MENCIVA Pending Not Avail. August 26, 1999 American Vaccine Corporation
---------------------------------------------------------------------------------------------------------------------------
B-2
