SECURITY AGREEMENT
| EXECUTION COPY |
Exhibit
10.145
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THIS SECURITY AGREEMENT (this
"Agreement"),
dated as of this _____ day of July, 2008, is made by and between VYTERIS, INC.
(the "Borrower"), and
FERRING PHARMACEUTICALS, INC. (the "Holder").
Recitals
1. The
Borrower desires that the Holder make a loan to the Borrower (the “Loan”) in the
principal amount of $2,500,000.00, and it is beneficial to the Borrower that the
Loan be made.
2. The
Loan will be evidenced by a certain Secured Note, of even date herewith (the
“Note” or
“Secured Note”)
executed by Borrower in favor of the Holder .
3. In
order to induce the Holder to make the Loan and for other good and valuable
consideration, receipt of which is acknowledged, and as security for the
performance by the Borrower of the Obligations (as hereinafter defined), the
Borrower, has agreed to grant to the Holder, for the benefit of the Holder, a
security interest in the Collateral (as such term is hereinafter defined), on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, the Borrower
and the Holder, intending to be legally bound, hereby agree as
follows:
1. Definitions.
(a) "Collateral" shall
mean the Borrower's equipment more fully described on Exhibit "A" attached
hereto and made a part hereof (the "Equipment"); all
goods and general intangibles relating to, arising from or embedded in the
Equipment, all cash and non-cash proceeds (including insurance proceeds) of the
Equipment, all products thereof and all additions and accessions thereto,
substitutions therefor and replacements thereof.
(b) “Obligations" shall
mean all obligations of the Borrower the Holder under the Note (whether for
principal, interest or otherwise, and including any interest accruing thereon
after maturity, or after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding); and any amendments, extensions,
renewals and increases of or to any of the foregoing, and all costs
and expenses of the Holder incurred in the modification, enforcement, collection
and otherwise in connection with any of the foregoing, including reasonable
attorneys' fees and expenses.
(c) "UCC" means the
Uniform Commercial Code, as adopted and enacted and as in effect from time to
time in the State whose law governs pursuant to the Section of this Agreement
entitled "Governing
Law and Jurisdiction." Terms used herein which are defined in
the UCC and not otherwise defined herein shall have the respective meanings
ascribed to such terms in the UCC. To the extent the definition of any category
or type of collateral is modified by any amendment, modification or revision to
the UCC, such modified definition will apply automatically as of the date of
such amendment, modification or revision.
2. Grant of Security
Interest. To secure the Obligations, the Borrower, as
debtor, hereby assigns and grants to the Holder, as secured party, a continuing
first priority lien on and security interest in the Collateral.
3. Change in Name or
Locations. The Borrower hereby agrees that if the
location of the Collateral changes from the locations listed on Exhibit "A"
hereto and made part hereof (other than transport to its headquarters in Fair
Lawn New Jersey), or if the Borrower changes its name, its type of organization,
its state of organization or its chief executive office or establishes a name
under which it may do business that is not listed as a tradename on Exhibit "A"
hereto, the Borrower will immediately notify the Holder in writing of the
additions or changes.
4. Representations and
Warranties. The Borrower represents, warrants and
covenants to the Holder that: (a) all information, including its type of
organization, jurisdiction of organization and chief executive office, are as
set forth on Exhibit "A" hereto and are true and correct on the date hereof;
(b) the Borrower has paid to the manufacturer(s) and all supplier(s) of the
Collateral the entire purchase payable therefor, and no amounts remain to be
paid to any such manufacturer or supplier for or in connection with the
acquisition by the Borrower of the Collateral; (c) as of date hereof, the
Collateral is located at the location listed on Exhibit “A” hereto; (d) the
Borrower has good, marketable and indefeasible title to the Collateral, has not
made any prior sale, pledge, encumbrance, assignment or other disposition of any
of the Collateral, and the Collateral is free from all encumbrances and rights
of setoff of any kind except the lien in favor of the Holder created by this
Agreement; and any liens or security interests of Xxxxxxx Xxxxx Specialty Group,
LLC and/or its affiliates (the “Subordinate
Lienholders”), which are subject, junior and subordinate to the lien and
security interest granted to the Holder hereunder pursuant to a Subordination
Agreement dated as of the date hereof among the Subordinate Lienholders and the
Holder; (e) except as herein provided, the Borrower will not hereafter
without the Holder's prior written consent sell, pledge, encumber, assign or
otherwise dispose of any of the Collateral or permit any right of setoff, lien
or security interest to exist thereon except to the Holder; (f) the
Borrower will defend the Collateral against all claims and demands of all
persons and entities at any time claiming the same or any interest therein; (g)
the Holder's security interest in the Collateral constitutes and will continue
to constitute a first priority security interest in favor of the Holder and (h)
each of this Agreement and the other Loan Documents (as defined in the Note) has
been duly authorized, executed and delivered by the Borrower and constitutes its
legal, valid and binding obligations, enforceable in accordance with their
respective terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, moratorium or other similar laws affecting
creditors’ rights generally.
5. Personal
Property. The Collateral shall remain personal property at all
times. The Borrower shall not affix any of the Collateral to real property in
any manner which would change its nature from that of personal property to real
property or to a fixture.
6. Borrower's
Covenants. The Borrower covenants that it
shall:
(a) from
time to time and at all reasonable times allow the Holder, by or through any of
its officers, agents, attorneys, or accountants, to examine or inspect the
Collateral, wherever located. The Borrower shall do, obtain, make,
execute and deliver all such additional and further acts, things, deeds,
assurances and instruments as the Holder may reasonably require to vest in and
assure to the Holder its rights hereunder and in or to the Collateral, and the
proceeds thereof, including waivers from landlords, warehousemen and
mortgagees. The Borrower agrees that the Holder has full power and
authority to collect, compromise, endorse, sell or otherwise deal with the
Collateral in its own name or that of the Borrower at any time upon an Event of
Default;
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(b) keep
the Collateral in good order and repair at all times and immediately notify the
Holder of any event causing a material loss or decline in value of the
Collateral, whether or not covered by insurance, and the amount of such loss or
depreciation;
(c) only
use or permit the Collateral to be used in accordance with all applicable
federal, state, county and municipal laws and regulations;
(d) no
later than October 31, 2008, cause the Collateral to be transported from its
current location in Germany to the Borrower’s facility in Fair Lawn, New Jersey
(or another location within the U.S. acceptable to both Holder and Borrower)
(the “Borrower’s
Facility”), and immediately notify the Holder in writing upon the arrival
of the Collateral at the Borrower’s Facility;
(e) have
and maintain public liability and property damage insurance at all times with
respect to all Collateral against such risks, including fire (including
so-called extended coverage), theft, sprinkler leakage, and other risks
(including risk of flood if any Collateral is maintained at a location in a
flood hazard zone and, for the period that the Collateral is being transported
to the Borrower’s Facility, risks of loss during transportation) as the Holder
may require, in such form, in such amount, for such period and written by such
companies as may be satisfactory to the Holder in its sole
discretion. Each such casualty insurance policy shall contain a
standard Lender's Loss Payable Clause issued in favor of the Holder under which
all losses thereunder shall be paid to the Holder as the Holder's interests may
appear. Each public liability policy shall name the Holder as an
additional insured. Such policies shall expressly provide that the
requisite insurance cannot be altered or canceled without at least thirty (30)
days prior written notice to the Holder and shall insure the Holder
notwithstanding the act or neglect of the Borrower. Upon the Holder's
demand, the Borrower shall furnish the Holder with duplicate original policies
of insurance or such other evidence of insurance as the Holder may
require. In the event of failure to provide insurance as herein
provided, the Holder may, at its option, obtain such insurance and the Borrower
shall pay to the Holder, on demand, the cost thereof. Proceeds of
insurance may be applied by the Holder to reduce the Obligations or to repair or
replace Collateral, all in the Holder's sole discretion; and
(f) [Provisions
relative to warranty including obligation of Borrower to obtain, if available,
together with the consent of the manufacturer to the transfer thereof to Holder
from and after the occurrence of an Event of Default.]
7. Negative Pledge; No
Transfer. The Borrower will not sell or offer to sell or
otherwise transfer or grant or allow the imposition of a lien or security
interest upon the Collateral (except for the existing subordinate security
interest in favor of the Subordinate Lienholders), will not allow any third
party to gain control of all or any part of the Collateral, and will not use any
portion thereof in any manner inconsistent with this Agreement or with the terms
and conditions of any policy of insurance thereon.
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8. Further
Assurances. By its signature hereon, the Borrower hereby
irrevocably authorizes the Holder to execute (on behalf of the Borrower) and
file against the Borrower one or more financing, continuation or amendment
statements pursuant to the UCC in form satisfactory to the Holder in all
jurisdictions in which such filing is deemed by the Holder to be necessary or
desirable in order to perfect, preserve and protect its security
interests. If required by the Holder, the Borrower will execute all
documentation necessary for the Holder to obtain and maintain perfection of its
security interests in the Collateral.
9. Events of Default;
Remedies. Upon the occurrence of any Event of Default (as
defined in the Note) and at any time thereafter, the Holder may declare all
Obligations secured hereby immediately due and payable and shall have, in
addition to any remedies provided herein or by any applicable law or in equity,
all the remedies of a secured party under the UCC. The Holder's remedies
include, but are not limited to, the right to (a) peaceably by its own means or
with judicial assistance enter the Borrower's premises and take possession of
the Collateral without prior notice to the Borrower or the opportunity for a
hearing, (b) render the Collateral unusable, (c) dispose of the Collateral on
the Borrower's premises, and (d) require the Borrower to assemble the Collateral
and make it available to the Holder at a place designated by the
Holder. The Holder 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 commercially reasonable notice shall be met if such notice is
sent to the Borrower at least five (5) days before the time of the intended sale
or disposition. Expenses of retaking, holding, preparing for
disposition, disposing or the like shall include the Holder's reasonable
attorneys' fees and legal expenses, incurred or expended by the Holder to
enforce any payment due it under this Agreement either as against the Borrower,
or in the prosecution or defense of any action, or concerning any matter growing
out of or connection with the subject matter of this Agreement and the
Collateral pledged hereunder. The Borrower waives all relief from all
appraisement or exemption laws now in force or hereafter enacted.
10. Power of
Attorney. The Borrower does hereby make, constitute and
appoint any officer or agent of the Holder as the Borrower's true and lawful
attorney-in-fact, with power to (a) endorse the name of the Borrower or any
of the Borrower's officers or agents upon any notes, checks, drafts, money
orders, or other instruments of payment or Collateral that may come into the
Holder's possession in full or part payment of any Obligations; (b) xxx for,
compromise, settle and release all claims and disputes with respect to, the
Collateral; and (c) sign, for the Borrower, such documentation required by the
UCC, or supplemental intellectual property security agreements; granting to the
Borrower's said attorney full power to do any and all things necessary to be
done in and about the premises as fully and effectually as the Borrower might or
could do. The Borrower hereby ratifies all that said attorney shall
lawfully do or cause to be done by virtue hereof. This power of
attorney is coupled with an interest, and is irrevocable.
11. Payment of
Expenses. At its option, the Holder may discharge taxes,
liens, security interests or such other encumbrances as may attach to the
Collateral, may pay for required insurance on the Collateral and may pay for the
maintenance, appraisal or reappraisal, and preservation of the Collateral, as
determined by the Holder to be necessary. The Borrower will reimburse the Holder
on demand for any payment so made or any expense incurred by the Holder pursuant
to the foregoing authorization, and the Collateral also will secure any advances
or payments so made or expenses so incurred by the Holder.
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12. Notices. All
notices, demands, requests, consents, approvals and other communications
required or permitted hereunder ("Notices") must be in
writing and will be effective upon receipt. Notices may be
given in any manner to which the parties may separately agree, including
electronic mail. Without limiting the foregoing, first-class mail,
facsimile transmission and commercial courier service are hereby agreed to as
acceptable methods for giving Notices. Regardless of the manner in which
provided, Notices may be sent to a party's address as set forth above or to such
other address as any party may give to the other for such purpose in accordance
with this section.
13. Preservation of
Rights. No delay or omission on the Holder's part to exercise
any right or power arising hereunder will impair any such right or power or be
considered a waiver of any such right or power, nor will the Holder's action or
inaction impair any such right or power. The Holder's rights and
remedies hereunder are cumulative and not exclusive of any other rights or
remedies which the Holder may have under other agreements, at law or in
equity.
14. Illegality. If any
provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, it shall not affect or impair the validity,
legality and enforceability of the remaining provisions of this
Agreement.
15. Changes in
Writing. No modification, amendment or waiver of, or consent
to any departure by the Borrower from, any provision of this Agreement will be
effective unless made in a writing signed by the Holder, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on the Borrower will entitle the
Borrower to any other or further notice or demand in the same, similar or other
circumstance.
16. Entire
Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, between
the parties with respect to the subject matter hereof.
17. Counterparts. This
Agreement may be signed in any number of counterpart copies and by the parties
hereto on separate counterparts, but all such copies shall constitute one and
the same instrument. Delivery of an executed counterpart of signature
page to this Agreement by facsimile transmission shall be effective as delivery
of a manually executed counterpart. Any party so executing this
Agreement by facsimile transmission shall promptly deliver a manually executed
counterpart, provided that any failure to do so shall not affect the validity of
the counterpart executed by facsimile transmission.
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18. Successors and
Assigns. This Agreement will be binding upon and inure to the
benefit of the Borrower and the Holder and their respective successors and
assigns; provided, however, that the Borrower may not assign this Agreement in
whole or in part without the Holder's prior written consent and the Holder at
any time may assign this Agreement in whole or in part.
19. Interpretation. In
this Agreement, unless the Holder and the Borrower otherwise agree in writing,
the singular includes the plural and the plural the singular; references to
statutes are to be construed as including all statutory provisions
consolidating, amending or replacing the statute referred to; the word "or"
shall be deemed to include "and/or", the words "including", "includes" and
"include" shall be deemed to be followed by the words "without limitation";
references to articles, sections (or subdivisions of sections) or exhibits are
to those of this Agreement; and references to agreements and other contractual
instruments shall be deemed to include all subsequent amendments and other
modifications to such instruments, but only to the extent such amendments and
other modifications are not prohibited by the terms of this
Agreement. Section headings in this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
20. Governing Law and
Jurisdiction. This Agreement will be interpreted and the
rights and liabilities of the parties hereto determined in accordance with the
laws of the State of New Jersey, except that the laws of the State (if different
from the State where such office of the Holder is located) shall govern the
creation, perfection and foreclosure of the liens created hereunder on such
property or any interest therein. The Borrower hereby irrevocably
consents to the exclusive jurisdiction of any state or federal court in the City
of Newark, State of New Jersey; provided that nothing contained in this
Agreement will prevent the Holder from bringing any action, enforcing any award
or judgment or exercising any rights against the Borrower individually, against
any security or against any property of the Borrower within any other county,
state or other foreign or domestic jurisdiction. The Holder and the
Borrower agree that the venue provided above is the most convenient forum for
both the Holder and the Borrower. The Borrower waives any objection
to venue and any objection based on a more convenient forum in any action
instituted under this Agreement.
21. WAIVER OF JURY
TRIAL. EACH OF THE BORROWER AND THE HOLDER IRREVOCABLY WAIVES
ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT, ANY DOCUMENTS EXECUTED IN
CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH
DOCUMENTS. THE BORROWER AND THE HOLDER ACKNOWLEDGE THAT THE FOREGOING
WAIVER IS KNOWING AND VOLUNTARY.
22. Termination;
Release. When the Obligations have been indefeasibly paid and
performed in full, this Agreement shall terminate, and the Holder, at the
request and sole expense of the Borrower, will deliver to the Borrower releases
and satisfactions of all financing statements, notices of assignment and other
registrations of security.
The
Borrower acknowledges that it has read and understood all the provisions of this
Agreement,
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including
the waiver of jury trial, and has been advised by counsel as necessary or
appropriate.
WITNESS the due execution
hereof as a document under seal, as of the date first written
above.
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ATTEST:
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VYTERIS, INC. | ||
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____________________________________
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By: |
/s/Xxxxxx
Xxxxxx
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Name:
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(SEAL)
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Name:
Xxxxxx Xxxxxx
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Title:
Chairman
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| FERRING PHARMACEUTICALS, INC. | |||
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____________________________________
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By: |
/s/
Xxxxx X. Xxxxxxxx
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Name:
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(SEAL)
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Name:
Xxxxx X. Xxxxxxxx
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Title:
President and CEO
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EXHIBIT "A"
[TO BE COMPLETED BY
THE BORROWER]
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1.
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Description
of Equipment: PMK-300
Machine
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2.
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The
Borrower's form of organization (i.e., corporation, partnership, limited
liability
company): Corporation
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3.
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The
Borrower's State of organization, if a registered organization (i.e.,
corporation, limited partnership or limited liability
company): NV
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4.
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Address
of the Borrower's chief executive office, including the County: 00-00
Xxxxxxx Xxxxx, Xxxx Xxxx, Xxxxxx Xxxxxx, XX
00000
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5.
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The
Borrower's EIN: 00-0000000
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6.
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The
Borrower's organizational ID# (if any exists):
None.
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7.
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Address
for books and records, if different:
None.
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8.
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Address
of Equipment location as of date of this Agreement: Xxxxxxxxxxxxxxx 0,
X-00000 Xxxxxxxxxxx i.T., Germany.
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9.
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Address
of location of the Borrower’s facility in Fair Lawn, NJ, including County
and name and address of landlord or owner if location is not owned by the
Borrower: 00-00 Xxxxxxx Xxxxx, Xxxx Xxxx, Xxxxxx Xxxxxx, XX
00000. Landlord is Lincoln Fair Lawn Associates, with offices
c/o Marcus Associates Property Management, Inc., 00 Xxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxx, XX 00000
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10.
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Other
names or tradenames now or formerly used by the Borrower: Vyteris Holdings
(Nevada), Inc.
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