AMENDED AND RESTATED SECURITY AGREEMENT
AMENDED
AND RESTATED SECURITY AGREEMENT
This
AMENDED
AND RESTATED SECURITY AGREEMENT
(this
“Agreement”), dated as of December 30, 2005, is made by and among InSite Vision
Incorporated, a Delaware corporation (the “Company”), X. Xxxxx Xxxxxxxxxxxxxx,
Ph.D. (the “Original Holder”) and (i) THE
BANK OF NEW YORK,
a
company organized under the laws of the State of New York, as agent for and
representative of the Original Holder and the other holders from time to time
of
the 2003 Senior Notes (as defined below) (each, together with its successors
and
assigns, a “2003 Holder” and collectively the “2003 Holders”) and (ii)
THE
BANK OF NEW YORK,
a
company organized under the laws of the State of New York, as agent for and
representative of the holders from time to time of the 2005 Senior Notes (as
defined below) (each, together with its successors and assigns, a “2005 Holder”
and collectively the “2005 Holders” and, together with the 2003 Holders, the
“Holders”). The Bank of New York, in its capacity as agent for the 2003 Holders
and in its capacity as agent for the 2005 Holders, is referred to herein as
“Collateral Agent.”
RECITALS
WHEREAS,
the
Company has issued to each 2003 Holder a promissory note (each such note, as
amended, restated, supplemented or modified from time to time, a “2003 Senior
Note” and collectively, the “2003 Senior Notes”);
WHEREAS,
the
2003
Senior Note is secured by a security interest granted by the Company pursuant
to
a Security Agreement, dated as of July 15, 2003, by and between the Company
and
the Original Holder (the “Original Security Agreement”);
WHEREAS,
the
Company has issued to each 2005 Holder a promissory note due June 30, 2006,
as
such date may be extended at the Company’s election in accordance with the terms
of such promissory notes (each such note, as amended, restated, supplemented
or
modified from time to time, a “2005 Senior Note,” collectively, the “2005 Senior
Notes” and, collectively with the 2003 Senior Notes, the “Senior Notes”);
WHEREAS,
it is a
condition precedent to the purchase of the 2005 Senior Notes by the 2005 Holders
that the Company shall have granted the security interests contemplated by
this
agreement;
WHEREAS,
the
Collateral Agent has been appointed as agent for and representative of the
2003
Holders and as agent for and representative of the 2005 Holders pursuant to
the
terms of a Collateral Agency and Intercreditor Agreement dated as of December
30, 2005 by and among the 2003 Holders, the 2005 Holders and the Collateral
Agent (the “Collateral Agency and Intercreditor Agreement”); and
WHEREAS,
the
Company and the Original Holder desire to amend and restate the Original
Agreement as set forth in this Agreement.
NOW,
THEREFORE,
in
consideration of the premises and the agreements, provisions, and covenants
herein contained and in order to induce the 2005 Holders to purchase the 2005
Senior Notes, the Company, the Original Holder and the Collateral Agent agree
for the direct and enforceable benefit of Collateral Agent, on behalf of itself
and the 2003 Holders and the 2005 Holders, that the Original Security Agreement
is hereby amended and restated to read in its entirety as follows:
SECTION
1. DEFINITIONS;
INTERPRETATION.
(a) CERTAIN
DEFINED TERMS. As used in this Agreement, the following terms shall have the
following meanings:
“2003
SENIOR NOTE” has the meaning set forth in the Recitals to this
Agreement.
“2003
SENIOR NOTE SECURED OBLIGATIONS” means the indebtedness, liabilities and other
obligations of the Company to each of the 2003 Holders evidenced by the 2003
Senior Notes (together with all extensions or renewals thereof), including
all
unpaid principal thereunder, all interest accrued thereon (including without
limitation interest that, but for the filing of a petition in bankruptcy with
respect to the Company, would accrue on such obligations, whether or not a
claim
is allowed against the Company for such interest in the related bankruptcy
proceeding), and all other amounts payable by the Company to each 2003 Holder
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, and all obligations of every nature
of
the Company now or hereafter existing under this Agreement.
“2005
SENIOR NOTE” has the meaning set forth in the Recitals to this
Agreement.
“2005
SENIOR NOTE SECURED OBLIGATIONS” means the indebtedness, liabilities and other
obligations of the Company to each of the 2005 Holders evidenced by the 2005
Senior Notes (together with all extensions or renewals thereof), including
all
unpaid principal thereunder, all interest accrued thereon (including without
limitation interest that, but for the filing of a petition in bankruptcy with
respect to the Company, would accrue on such obligations, whether or not a
claim
is allowed against the Company for such interest in the related bankruptcy
proceeding), and all other amounts payable by the Company to each 2005 Holder
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, and all obligations of every nature
of
the Company now or hereafter existing under this Agreement.
“ACCOUNT
CONTROL AGREEMENT” means any account control agreement or other agreement with
any securities intermediary or other Person granting control with respect to
any
Investment Property or Deposit Account.
“ACCOUNTS”
means any and all accounts of the Company, whether now existing or hereafter
acquired or arising, and in any event includes all accounts receivable, contract
rights and rights to payment of monetary obligations owed to the Company arising
out of or in connection with the sale or lease of merchandise, goods or
commodities or the rendering of services or arising from any other transaction,
however evidenced, and whether or not earned by performance, all guaranties,
indemnities and security with respect to the foregoing, and all letters of
credit relating thereto, in each case whether now existing or hereafter acquired
or arising.
-B-
“BOOKS”
means all books, records and other written, electronic or other documentation
in
whatever form maintained now or hereafter by or for the Company in connection
with the ownership of its assets or the conduct of its business or evidencing
or
containing information relating to the Collateral, including: (i) ledgers;
(ii)
records indicating, summarizing, or evidencing the Company’s assets (including
Inventory and Rights to Payment), business operations or financial condition;
(iii) computer programs and software; (iv) computer discs, tapes, files,
manuals, spreadsheets; (v) computer printouts and output of whatever kind;
(vi)
any other computer prepared or electronically stored, collected or reported
information and equipment of any kind; and (vii) any and all other rights now
or
hereafter arising out of any contract or agreement between the Company and
any
service bureau, computer or data processing company or other Person charged
with
preparing or maintaining any of the Company’s books or records or with credit
reporting, including with regard to the Company’s Accounts.
“CHATTEL
PAPER” means all writings of whatever sort which evidence a monetary obligation
and a security interest in or lease of specific goods, whether now existing
or
hereafter arising.
“COLLATERAL”
has the meaning set forth in Section 2.
“DEPOSIT
ACCOUNT” means any demand, time, savings, passbook or like account now or
hereafter maintained by or for the benefit of the Company with a bank, savings
and loan association, credit union or like organization, and all funds and
amounts therein, whether or not restricted or designated for a particular
purpose.
“DOCUMENTS”
means any and all documents of title, bills of lading, dock warrants, dock
receipts, warehouse receipts and other documents of the Company, whether or
not
negotiable, and includes all other documents which purport to be issued by
a
bailee or agent and purport to cover goods in any bailee’s or agent’s possession
which are either identified or are fungible portions of an identified mass,
including such documents of title made available to the Company for the purpose
of ultimate sale or exchange of goods or for the purpose of loading, unloading,
storing, shipping, transshipping, manufacturing, processing or otherwise dealing
with goods in a manner preliminary to their sale or exchange, in each case
whether now existing or hereafter acquired or arising.
“EQUIPMENT”
means all now existing or hereafter acquired equipment of the Company in all
of
its forms, wherever located, and in any event includes any and all machinery,
furniture, equipment, furnishings and fixtures in which the Company now or
hereafter acquires any right, and all other goods and tangible personal property
(other than Inventory), including tools, parts and supplies, automobiles,
trucks, tractors and other vehicles, 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, now owned or hereafter
acquired, and including any of the foregoing which are or are to become fixtures
on real property.
“EVENT
OF
DEFAULT” has the meaning set forth in Section 10(a).
-C-
“FINANCING
STATEMENTS” has the meaning set forth in Section 3.
“GENERAL
INTANGIBLES” means all general intangibles of the Company, now existing or
hereafter acquired or arising, and in any event includes: (i) all tax and other
refunds, rebates or credits of every kind and nature to which the Company is
now
or hereafter may become entitled; (ii) all good will, choses in action and
causes of action, whether legal or equitable, whether in contract or tort and
however arising; (iii) all Intellectual Property Collateral; (iv) all interests
in limited and general partnerships and limited liability companies; (v) all
rights of stoppage in transit, replevin and reclamation; (vi) all licenses,
permits, consents, indulgences and rights of whatever kind issued in favor
of or
otherwise recognized as belonging to the Company by any governmental authority;
and (vii) all indemnity agreements, guaranties, insurance policies and other
contractual, equitable and legal rights of whatever kind or nature; in each
case
whether now existing or hereafter acquired or arising.
“GRANT”
means a Grant of Trademark Security Interest, substantially in the form of
Exhibit A annexed hereto, and a Grant of Patent Security Interest, substantially
in the form of Exhibit B annexed hereto, and a Grant of Copyright Security
Interest, substantially in the form of Exhibit C annexed hereto.
“INSTRUMENTS”
means any and all negotiable instruments and every other writing which evidences
a right to the payment of money, wherever located and whether now existing
or
hereafter acquired, except: (i) investment property, (ii) letters of credit
and
(iii) writings that evidence a right to payment arising out of the use of a
credit or charge card or information contained on or for use with the
card.
“INTELLECTUAL
PROPERTY COLLATERAL” means the following properties and assets owned or held by
the Company or in which the Company otherwise has any interest, now existing
or
hereafter acquired or arising:
(i) all
patents and patent applications, domestic or foreign, all licenses relating
to
any of the foregoing and all income and royalties with respect to any licenses,
all rights to xxx for past, present or future infringement thereof, all rights
arising therefrom and pertaining thereto and all reissues, divisions,
continuations, renewals, extensions and continuations-in-part thereof, and
all
regulatory filings related thereto;
(ii) all
copyrights and applications for copyright, domestic or foreign, together with
the underlying works of authorship (including titles), whether or not the
underlying works of authorship have been published and whether said copyrights
are statutory or arise under the common law, and all other rights and works
of
authorship, all rights, claims and demands in any way relating to any such
copyrights or works, including royalties and rights to xxx for past, present
or
future infringement, all rights of renewal and extension of copyright, and
all
licenses relating to any of the foregoing and all income and royalties with
respect to any licenses, and all regulatory filings related
thereto;
(iii) all
state
(including common law), federal and foreign trademarks, service marks and trade
names, and applications for registration of such trademarks, service marks
and
trade names, all licenses relating to any of the foregoing and all income and
royalties with respect to any licenses, whether registered or unregistered
and
wherever registered, all rights to xxx for past, present or future infringement
or unconsented use thereof, all rights arising therefrom and pertaining thereto
and all reissues, extensions and renewals thereof, and all regulatory filings
related thereto;
-D-
(iv) all
trade
secrets, trade dress, trade styles, logos, other source of business identifiers,
mask-works, mask-work registrations, mask-work applications, software,
confidential information, customer lists, 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 all licenses relating to any of the foregoing
and
all income and royalties with respect to any licenses, and all regulatory
filings related thereto; and
(v) the
entire goodwill of or associated with the businesses now or hereafter conducted
by the Company connected with and symbolized by any of the aforementioned
properties and assets.
“INVENTORY”
means any and all of the Company’s inventory in all of its forms, wherever
located, whether now owned or hereafter acquired, and in any event includes
all
goods (including goods in transit) which are held for sale, lease or other
disposition, including those held for display or demonstration or out on lease
or consignment or to be furnished under contract of service, or which are raw
materials, work in process, finished goods or materials used or consumed in
the
Company’s business, and the resulting product or mass, and all repossessed,
returned, rejected, reclaimed and replevied goods, together with all parts,
components, supplies, packing and other materials used or usable in connection
with the manufacture, production, packing, shipping, advertising, selling or
furnishing of such goods; and all other items hereafter acquired by the Company
by way of substitution, replacement, return, repossession or otherwise, and
all
additions and accessions thereto, and any Document representing or relating
to
any of the foregoing at any time.
“INVESTMENT
PROPERTY” means any and all investment property of the Company, including all
securities, whether certificated or uncertificated, security entitlements,
securities accounts, commodity contracts and commodity accounts, and all
financial assets held in any securities account or otherwise, wherever located,
and whether now existing or hereafter acquired or arising.
“LETTER
OF CREDIT PROCEEDS” means any and all proceeds of written letters of
credit.
“LIEN”
means any mortgage, pledge, security interest, assignment, deposit arrangement,
charge or encumbrance, lien or other type of preferential arrangement (other
than a financing statement filed by a lessor in respect of an operating lease
not intended as security).
“PERMITTED
LIENS” means: (i) Liens in favor of the Collateral Agent; (ii) existing Liens
(including without limitation leases and subleases) existing as of the date
hereof and listed on Schedule III hereto, and Liens incurred in connection
with
the extension, renewal or refinancing of the indebtedness or other obligations
secured by such existing Liens; (iii) Liens for taxes, fees, assessments or
other governmental charges or levies, either not delinquent or being contested
in good faith by appropriate proceedings and which are adequately reserved
for
in accordance with generally accepted accounting principles, provided the same
does not have priority over any of the Collateral Agent’s Liens; (iv) Liens of
materialmen, mechanics, warehousemen, carriers or employees or other similar
Liens provided for by mandatory provisions of law and securing obligations
either not delinquent or being contested in good faith by appropriate
proceedings and which do not in the aggregate materially impair the use or
value
of the property or risk the loss or forfeiture thereof; (v) Liens consisting
of
deposits or pledges to secure the performance of bids, trade contracts, leases,
public or statutory obligations, or other obligations of a like nature incurred
in the ordinary course of business; (vi) Liens upon or in any property or assets
and the Proceeds thereof acquired or held by the Company to secure the purchase
price of such property or assets, or indebtedness or other obligations incurred
solely for the purpose of financing or refinancing the acquisition thereof;
and
(vii) other Liens approved in writing by the Collateral Agent, acting at the
direction of the Holders pursuant to the terms of the Collateral Agency and
Intercreditor Agreement.
-E-
“PERSON”
means an individual, corporation, partnership, limited liability company, joint
venture, trust, unincorporated organization or any other entity of whatever
nature or any governmental agency or authority.
“PROCEEDS”
means whatever is acquired from or upon the sale, lease, license, collection,
use, exchange or other disposition, whether voluntary or involuntary, of any
Collateral or other assets of the Company, including “proceeds” as defined in
the UCC, any and all proceeds of any insurance, indemnity, warranty or guaranty
payable to or for the account of the Company from time to time with respect
to
any of the Collateral, any and all payments (in any form whatsoever) made or
due
and payable to the Company from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the
Collateral by any governmental authority (or any Person acting under color
of
governmental authority), any and all other amounts from time to time paid or
payable under or in connection with any of the Collateral or for or on account
of any damage or injury to or conversion of any Collateral by any Person, any
and all other tangible or intangible property received upon the sale or
disposition of Collateral, and all proceeds of proceeds.
“RIGHTS
TO PAYMENT” means all Accounts, and any and all rights and claims to the payment
or receipt of money or other forms of consideration of any kind in, to and
under
all Chattel Paper, Documents, General Intangibles, Instruments, Investment
Property and Proceeds.
“SENIOR
NOTE SECURED OBLIGATIONS” means the 2003 Senior Note Secured Obligations
together with the 2005 Senior Note Secured Obligations.
“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.
-F-
(b) TERMS
DEFINED IN UCC. Where applicable and except as otherwise defined herein, terms
used in this Agreement shall have the meanings assigned to them in the
UCC.
SECTION
2. SECURITY
INTEREST.
(a) GRANT
OF
SECURITY INTEREST. As security for the payment and performance of the Senior
Note Secured Obligations, the Company hereby pledges, assigns, transfers,
hypothecates and sets over to the Collateral Agent, and hereby grants to the
Collateral Agent, as agent for and representative of the 2003 Holders and as
agent for and representative of the 2005 Holders, a security interest in all
of
the Company’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; (ii) all Rights to
Payment; (iii) all Chattel Paper; (iv) all Deposit Accounts; (v) all Documents;
(vi) all Equipment; (vii) all General Intangibles; (viii) all Instruments;
(ix)
all Inventory; (x) all Investment Property; (xi) all Books; (xii) all Letter
of
Credit Proceeds; and (xiii) all products and Proceeds of any and all of the
foregoing.
(b) Notwithstanding
anything herein to the contrary, in no event shall the Collateral include,
and
the Company shall not be deemed to have granted a security interest in, (i)
any
of the Company’s rights or interests in any license, contract or agreement to
which the Company is a party or any of its rights or interests thereunder to
the
extent, but only to the extent, that such a grant would, under the terms of
such
license, contract or agreement or otherwise, result in a breach of the terms
of,
or constitute a default under any license, contract or agreement to which the
Company is a party (other than to the extent that any such term would be
rendered ineffective pursuant to the UCC or any other applicable law (including
the Bankruptcy Code, 11 U.S.C. Sec. 362(a) (the “Bankruptcy Code”)) or
principles of equity); provided, that immediately upon the ineffectiveness,
lapse or termination of any such provision, the Collateral shall include, and
the Company shall be deemed to have granted a security interest in, all such
rights and interests as if such provision had never been in effect, or (ii)
any
real property leasehold or fee, unless the Company has executed a mortgage
or
deed of trust covering such real property leasehold or fee. The Company hereby
represents and warrants to the Collateral Agent and the Holders that each
license, contract or agreement to which the Company is a party relating to
Azasite is included in the Collateral and is not excluded as a result of this
Section 2(b).
(c) COMPANY
REMAINS LIABLE. Anything herein to the contrary notwithstanding, (i) the Company
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
executed, (ii) the exercise by the Collateral Agent of any of the rights
hereunder shall not release the Company from any of its duties or obligations
under such contracts, agreements and other documents included in the Collateral
and (iii) the Collateral Agent 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 the Collateral Agent be obligated to perform
any of the obligations or duties of the Company thereunder or to take any action
to collect or enforce any such contract, agreement or other document included
in
the Collateral hereunder.
-G-
(d) CONTINUING
SECURITY INTEREST. The Company agrees that this Agreement shall create a
continuing security interest in the Collateral which shall remain in effect
until terminated in accordance with Section 21.
(f) INTERCREDITOR
PROVISIONS. The security interests and liens granted to the Collateral Agent
under Section 2(a) of this Agreement with respect to the 2003 Senior Note
Secured Obligations and the 2005 Senior Note Secured Obligations shall have
equal priority and are otherwise subject to the terms of the Collateral Agency
and Intercreditor Agreement.
SECTION
3. PERFECTION
PROCEDURES.
(a) FINANCING
STATEMENTS, ETC.
(i) The
Company hereby authorizes the Collateral Agent to file one or more financing
or
continuation statements, and amendments thereto, relative to all or any part
of
the Collateral without the signature of the Company. The Company agrees that
a
photographic or other reproduction of this Agreement or of a financing statement
signed by the Company shall be sufficient as a financing statement and may
be
filed as a financing statement in any and all jurisdictions. Without limiting
the foregoing, upon the request of the Collateral Agent, the Company shall
execute and deliver to the Collateral Agent concurrently with the execution
of
this Agreement, and at any time and from time to time thereafter, all financing
statements, continuation financing statements, termination statements, security
agreements, chattel mortgages, assignments, patent, copyright and trademark
collateral assignments, fixture filings, warehouse receipts, documents of title,
affidavits, reports, notices, schedules of account, letters of authority and
all
other documents and instruments, in a form reasonably satisfactory to the
Collateral Agent (the “Financing Statements”), and take all other action, as the
Collateral Agent may request, to perfect and continue perfected, maintain the
priority of or provide notice of, the Collateral Agent’s security interest in
the Collateral and to accomplish the purposes of this Agreement.
(ii) Within
30
days of the date hereof, the Company shall record Grants with the applicable
intellectual property filing offices evidencing the Collateral Agent’s security
interest in the Intellectual Property Collateral.
(b) CERTAIN
AGENTS. Any third person at any time and from time to time holding all or any
portion of the Collateral shall be deemed to, and shall, hold the Collateral
as
the agent of, and as pledge holder for, the Collateral Agent. At any time and
from time to time, the Collateral Agent may give notice to any third person
holding all or any portion of the Collateral that such third person is holding
the Collateral as the agent of, and as pledge holder for, the Collateral
Agent.
SECTION
4. REPRESENTATIONS
AND WARRANTIES. In addition to the representations and warranties of the Company
to the Holders set forth in the Senior Notes issued to the Holders, the Company
represents and warrants that:
-H-
(a) JURISDICTION
OF ORGANIZATION. The Company’s name as it appears in official filings in the
state of its organization, type of organization (i.e. corporation, limited
partnership, etc.), jurisdiction of organization and organization number
provided by the applicable government authority of the jurisdiction of
organization are set forth on Schedule I annexed hereto.
(b) NAMES.
The Company (or predecessor by merger or otherwise of the Company) has not,
within the five year period preceding the date hereof had a different name
from
the name of the Company listed on the signature page hereof, except as set
forth
in Schedule II annexed hereto.
(c)
SECURITY
INTERESTS.
(i)
This
Agreement creates a security interest against the Collateral in which the
Company now has rights and will create a security interest which is enforceable
against the Collateral in which the Company hereafter acquires rights at the
time the Company acquires any such rights; and
(ii)
The
Collateral Agent has a security interest in the Collateral in which the Company
now has rights, and will have a security interest in the Collateral in which
the
Company hereafter acquires rights at the time the Company acquires any such
rights, in each case securing the payment and performance of the Senior Note
Secured Obligations except for and subject to Permitted Liens.
(iii) The
Company owns its interest in the Collateral, free and clear of any Liens other
than Permitted Liens.
SECTION
5. COVENANTS.
For so long as any of the Senior Note Secured Obligations remain unsatisfied,
the Company agrees that:
(a) DEFENSE
OF COLLATERAL. The Company will 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 the Collateral Agent’s right or interest in, the
Collateral.
(b) PRESERVATION
OF COLLATERAL. The Company will do and perform all reasonable acts that may
be
necessary and appropriate to maintain, preserve and protect the Collateral
in
all material respects.
(c) EXPENSES.
The Company will pay all expenses of protecting, storing, warehousing, insuring,
handling and shipping the Collateral.
(d) NAME;
JURISDICTION. Without the written consent of the Collateral Agent, the Company
will not change (i) its name from the name of the Company listed on the
signature page hereof and the Company’s name as it appears in official filings
in the state of its organization, unless, in each case, it provides the
Collateral Agent with thirty (30) days’ advance written notice thereof, (ii) its
type of organization (i.e. corporation, limited partnership, etc.), or (iii)
its
jurisdiction of organization.
-I-
(e) MAINTENANCE
OF INTELLECTUAL PROPERTY. The Company shall diligently prosecute and maintain
all material Intellectual Property Collateral, at its sole cost and expense,
including, but not limited to, the filing of patent and trademark applications
with respect to any material Intellectual Property Collateral that the Company
determines in its commercially reasonable judgment should be made, and
the defense of any infringement of, and/or challenge to, any material
portion of the Intellectual Property Collateral.
(f) NOTICE
OF
CHANGE. The Company shall provide the Collateral Agent with written notice
should there be any claims of infringement with respect to any material portion
of the Intellectual Property Collateral.
(g) ADDITIONAL
LIENS. The Company shall not grant any Liens on its Collateral other than those
granted under this Agreement and Permitted Liens.
SECTION
6. RIGHTS
TO
PAYMENT.
(a) COLLECTION
OF RIGHTS TO PAYMENT. At the written request of the Collateral Agent, upon
and
after the occurrence and during the continuance of any Event of Default, all
remittances received by the Company shall be, in accordance with the Collateral
Agent’s instructions, remitted to the Collateral Agent or its designee or
deposited to an account with the Collateral Agent or its designee in the form
received (with any necessary endorsements or instruments of assignment or
transfer).
(b) INVESTMENT
PROPERTY AND INSTRUMENTS. At the written request of the Collateral Agent, upon
and after the occurrence and during the continuance of any Event of Default,
the
Collateral Agent or its designee shall be entitled to receive all distributions
and payments of any nature with respect to any Investment Property or
Instruments, and all such distributions or payments received by the Company
shall be held in trust for the Collateral Agent or its designee to the extent
permitted by applicable law and, in accordance with the Collateral Agent’s
instructions, remitted to the Collateral Agent or its designee or deposited
to
an account with the Collateral Agent or its designee in the form received (with
any necessary endorsements or instruments of assignment or transfer). Following
the occurrence and during the continuance of an Event of Default, at the written
request of the Collateral Agent, 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, the Collateral Agent, as agent for and representative
of the Holders, shall have the right, upon the occurrence and during the
continuance of an Event of Default, following prior written notice to the
Company, 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 to the extent permitted by applicable law as if the
Collateral Agent were the absolute owner thereof; PROVIDED, that the Collateral
Agent shall have no duty to exercise any of the foregoing rights afforded to
it
and shall not be responsible to the Company or any other Person for any failure
to do so or delay in doing so to the extent permitted by applicable
law.
SECTION
7. AUTHORIZATION;
COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT. The Collateral Agent shall have
the
right to, in the name of the Company, without notice to or assent by the
Company, and the Company hereby constitutes and appoints the Collateral Agent
(and any of the Collateral Agent’s agents) as the Company’s true and lawful
attorney-in-fact, with full power and authority to:
-J-
(i) sign
any
of the Financing Statements which must be executed or filed to perfect or
continue perfected, maintain the priority of or provide notice of, the
Collateral Agent’s security interest in the Collateral;
(ii) upon
the
occurrence and during the continuance of an Event of Default:
(A) take
possession of and endorse any notes, acceptances, checks, drafts, money orders
or other forms of payment or security and collect any Proceeds of any
Collateral;
(B) sign
and
endorse any invoice or xxxx of lading relating to any of the Collateral,
warehouse or storage receipts, drafts against customers or other obligors,
assignments, notices of assignment, verifications and notices to customers
or
other obligors (with respect to the Collateral);
(C) send
requests for verification of Rights to Payment to the customers or other
obligors of the Company (with respect to the Collateral);
(D) contact,
or direct the Company to contact, all account debtors and other obligors on
the
Rights to Payment and instruct such account debtors and other obligors to make
all payments directly to the Collateral Agent or its designee;
(E) assert,
adjust, xxx for, compromise or release any claims under any policies of
insurance;
(F) exercise
dominion and control over, and refuse to permit further withdrawals from,
Deposit Accounts maintained with any financial institution or other
Person;
(G) notify
each Person maintaining lockbox or similar arrangements for the payment of
the
Rights to Payment to remit all amounts representing collections on the Rights
to
Payment directly to the Collateral Agent or its designee;
(H) ask,
demand, collect, receive and give acquittances and receipts for any and all
Rights to Payment, enforce payment or any other rights in respect of the Rights
to Payment and all other Collateral, grant consents, agree to any amendments,
modifications or waivers of the agreements and documents governing the Rights
to
Payment and all other Collateral, and otherwise file any claims, take any action
or institute, defend, settle or adjust any actions, suits or proceedings with
respect to the Collateral, as the Collateral Agent may deem necessary or
desirable to maintain, preserve and protect the Collateral, to collect the
Collateral or to enforce the rights of the Collateral Agent with respect to
the
Collateral;
(I) execute
any and all applications, documents, papers and instruments necessary for the
Collateral Agent to use the Intellectual Property Collateral and grant or issue
any exclusive or non-exclusive license or sublicense with respect to any
Intellectual Property Collateral;
-K-
(J) execute
any and all endorsements, assignments or other documents and instruments
necessary to sell, lease, assign, convey or otherwise transfer title in or
dispose of the Collateral;
(K) execute
and deliver to any securities intermediary or other Person any entitlement
order, Account Control Agreement or other notice, document or instrument which
the Collateral Agent may deem necessary or advisable to maintain, protect,
realize upon and preserve the Investment Property and the Collateral Agent’s
security interest therein;
(L) execute
any and all such other documents and instruments, and do any and all acts and
things for and on behalf of the Company, which the Collateral Agent may deem
necessary or advisable to maintain, protect, realize upon and preserve the
Collateral and the Collateral Agent’s security interest therein and to
accomplish the purposes of this Agreement; and
(M) execute
any and all action necessary to prosecute, maintain or defend the Intellectual
Property Collateral, except to the extent that the claims asserted against
the
Intellectual Property Collateral in question, if successful, are not likely
to
have a material adverse affect on the assets, liabilities, business or
operations of the Company.
The
foregoing power of attorney is coupled with an interest and irrevocable so
long
as the Senior Note Secured Obligations have not been paid and performed in
full.
The Company hereby ratifies, to the extent permitted by law, all that the
Collateral Agent shall lawfully and in good faith do or cause to be done by
virtue of and in compliance with this Section 7.
SECTION
8. COLLATERAL
AGENT PERFORMANCE OF COMPANY OBLIGATIONS. Upon the occurrence and during the
continuance of any Event of Default, the Collateral Agent may perform or pay
any
obligation which the Company has agreed to perform or pay under or in connection
with this Agreement, and the Company shall reimburse the Collateral Agent on
demand for any reasonable amounts paid by the Collateral Agent pursuant to
this
Section 8 to the extent permitted by applicable law.
SECTION
9. COLLATERAL
AGENT’S DUTIES. Notwithstanding any provision contained in this Agreement, the
Collateral Agent shall have no duty to exercise any of the rights, privileges
or
powers afforded to it and shall not be responsible to the Company or any other
Person for any failure to do so or delay in doing so. Beyond the exercise of
reasonable care to assure the safe custody of Collateral in the Collateral
Agent’s possession and the accounting for moneys actually received by the
Collateral Agent hereunder, the Collateral Agent shall have no duty or liability
to exercise or preserve any rights, privileges or powers pertaining to the
Collateral to the extent permitted by applicable law. Notwithstanding
any provision contained herein, the Collateral Agent’s liability for the
performance of any duties hereunder shall be limited by the Collateral Agency
and Intercreditor Agreement, including but not limited to Sections 4.01 through
4.06 and 4.09 of such agreement.
SECTION
10. REMEDIES.
(a) REMEDIES.
Upon the occurrence and during the continuance of any Event of Acceleration
(as
defined in the 2003 Senior Notes or the 2005 Senior Notes) or any failure to
pay
any Senior Note at maturity (any such event, an “Event of Default”), the
Collateral Agent shall have, in addition to all other rights and remedies
granted to it in this Agreement, all rights and remedies of a secured party
under the UCC and other applicable laws and, without limiting the generality
of
the foregoing, the Company agrees that to the extent permitted by applicable
law:
-L-
(i) The
Collateral Agent may peaceably and without notice enter any premises of the
Company, take possession of any of the Collateral, remove or dispose of all
or
part of the Collateral on any premises of the Company or elsewhere, and
otherwise collect, receive, appropriate and realize upon all or any part of
the
Collateral, and demand, give receipt for, settle, renew, extend, exchange,
compromise, adjust, or xxx for all or any part of the Collateral, as the
Collateral Agent may determine.
(ii) The
Collateral Agent may require the Company to assemble all or any part of the
Collateral and make it available to the Collateral Agent at any place and time
designated by the Collateral Agent.
(iii) To
the
extent permitted by an applicable license, the Collateral Agent may use or
transfer any of the Company’s rights and interests in any Intellectual Property
Collateral, by license, by sublicense or otherwise, on such conditions and
in
such manner as the Collateral Agent may determine.
(iv) The
Collateral Agent may secure the appointment of a receiver of the Collateral
or
any part there of (to the extent and in the manner provided by applicable
law).
(v) The
Collateral Agent may withdraw (or cause to be withdrawn) any and all funds
from
any Deposit Accounts or securities accounts.
(vi) The
Collateral Agent may sell, resell, lease, use, assign, transfer or otherwise
dispose of any or all of the Collateral in its then condition or following
any
commercially reasonable preparation or processing (utilizing in connection
therewith any of the Company’s assets, without charge or liability to the
Collateral Agent therefor) at public or private sale, by one or more contracts,
in one or more parcels, at the same or different times, for cash or credit,
or
for future delivery without assumption of any credit risk, all as the Collateral
Agent deems advisable; provided, however, that the Company shall be credited
with the net proceeds of sale only when such proceeds are finally collected
by
the Collateral Agent. The Collateral Agent shall have the right, as agent for
and representative of the Holders, upon any such public sale, and, to the extent
permitted by law, upon any such private sale, to purchase the whole or any
part
of the Collateral so sold, free of any right or equity of redemption, which
right or equity of redemption the Company hereby releases, to the extent
permitted by law. The Company hereby agrees that the sending of notice by
ordinary mail, postage prepaid, to the address of the Company set forth in
Section 12 hereof, of the place and time of any public sale or of the time
after
which any private sale or other intended disposition is to be made, shall be
deemed reasonable notice thereof if such notice is sent ten days prior to the
date of such sale or other disposition or the date on or after which such sale
or other disposition may occur. The Company recognizes that the Collateral
Agent
may be unable to make a public sale of any or all of the Investment Property,
by
reason of prohibitions contained in applicable securities laws or otherwise,
and
expressly agrees that a private sale to a restricted group of purchasers for
investment and not with a view to any distribution thereof shall be considered
a
commercially reasonable sale.
(b) LICENSE.
Effective upon the occurrence and during the continuance of an Event of Default,
for the purpose of enabling the Collateral Agent to exercise its rights and
remedies under this Section 10 or otherwise in connection with this Agreement,
the Company hereby grants to the Collateral Agent an irrevocable, non-exclusive
and assignable license (exercisable without payment or royalty or other
compensation to the Company) to use, license or sublicense any Intellectual
Property Collateral, except to the extent a grant of such license would violate
the terms of an existing agreement to which the Company is a party.
-M-
(c) APPLICATION
OF PROCEEDS. 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 (pro rata,
as
applicable) (i) first,
to any
fees, costs, expenses and other amounts due to the Collateral Agent; (ii)
second,
to any
fees, costs, expenses and other amounts (other than principal and interest
under
the 2003 Senior Notes) due to the 2003 Holders under the 2003 Senior Notes
and
to any fees, costs, expense and other amounts (other than principal and interest
under the 2005 Senior Notes) due to the 2005 Holders under the 2005 Senior
Notes, on a pro rata
basis;
(iii) third,
to
accrued and unpaid interest due to the 2003 Holders under the 2003 Senior Notes
and to accrued and unpaid interest due to the 2005 Holders under the 2005 Senior
Notes, on a pro rata
basis;
and (iv) fourth,
to
principal due to the 2003 Holders under the 2003 Senior Notes and to principal
due to the 2005 Holders under the 2005 Senior Notes, on a pro rata
basis.
Any surplus thereof which exists after payment and performance in full of the
Secured Obligations shall be promptly paid over to the Company or otherwise
disposed of as required by the UCC or other applicable law. The Company shall
remain liable to each of the Holders for any deficiency which exists after
any
sale or other disposition or collection of Collateral to the extent permitted
by
applicable law. The
Company shall maintain an updated registry which shall contain the names of
each
Holder and the Collateral Agent and the amounts due to each Holder and the
Collateral Agent under this Section 10(c). The Company shall furnish the
Collateral Agent with such registry, as the Collateral Agent shall from time
to
time request.
SECTION
11. CERTAIN
WAIVERS. The Company 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 Senior Note Secured Obligations; (ii) any right
to require the Collateral Agent or the Holders (A) to proceed against any
Person, (B) to exhaust any other collateral or security for any of the Secured
Obligations, (C) to pursue any remedy in the Collateral Agent’s or Holders’
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 the Collateral Agent or the Holders arising out of the
repossession, retention, sale or application of the proceeds of any sale of
the
Collateral.
SECTION
12. NOTICES.
Except as otherwise provided herein, any notice or demand which, by the
provisions hereof, is required or which may be given to or served upon the
parties hereto shall be in writing and, if by telegram, telecopy or telex,
shall
be deemed to have been validly served, given or delivered when delivery is
confirmed electronically, if by personal delivery, shall be deemed to have
been
validly served, given or delivered upon actual delivery and, if mailed, shall
be
deemed to have been validly served, given or delivered three (3) business days
after deposit in the United States mail, as registered or certified mail, with
proper postage prepaid and addressed to the party or parties to be notified,
at
the following addresses (or such other address(es)) as a party may designate
for
itself by like notice:
-N-
|
If
to Collateral Agent:
|
To
the address set forth for the Collateral Agent on the signatures
pages
attached hereto
|
| With a copy to: | XxXxxxx, Xxxxxxxx & Xxxxxxxx, P.C. |
| 000 Xxxxx Xxxxx, Xxxxx 0000 | |
| Xxxxxx, Xxxxx 00000 | |
| Facsimile: (000) 000-0000 | |
| Attention: Xxxxxxxx Xxxxxxxxxx, Esq. | |
|
If
to the Original Holder:
|
X.
Xxxxx Xxxxxxxxxxxxxx, Ph.D.
|
|
00
Xxxxx Xxxxx
|
|
|
Xxxxxx,
Xxxxxxxxxx 00000
|
|
|
If
to the Company:
|
InSite
Vision Incorporated
|
|
000
Xxxxxxxx Xxxxxx
|
|
|
Xxxxxxx,
Xxxxxxxxxx 00000
|
|
|
Facsimile:
(000) 000-0000
|
|
|
Attention:
Xxxxx Xxxxx (or if Xxxxx Xxxxx is no longer an authorized officer
of the
Company, any other authorized officer)
|
|
|
With
a copy to:
|
O’Melveny
& Xxxxx LLP
|
|
0000
Xxxx Xxxx Xxxx
|
|
|
Xxxxx
Xxxx, Xxxxxxxxxx 00000
|
|
|
Facsimile:
(000) 000-0000
|
|
|
Attention:
Xxxxxxx X. Xxxxx, Esq.
|
SECTION
13. NO
WAIVER; CUMULATIVE REMEDIES. No failure on the part of the Collateral Agent
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 the Collateral Agent.
SECTION
14.
(a)
COSTS AND EXPENSES. The Company agrees to pay on demand all reasonable costs
and
expenses to the Collateral Agent, and the reasonable fees and disbursements
of
the Collateral Agent’s counsel, in connection with the enforcement or attempted
enforcement of, and preservation of any rights or interests under, this
Agreement, including the protection, sale or collection of, or other realization
upon, any of the Collateral, including all expenses of taking, collecting,
holding, sorting, handling, preparing for sale, selling, or the like, and other
such expenses of sales and collections of Collateral.
(b) INDEMNIFICATION.
The Company hereby agrees to indemnify the Collateral Agent, its agents, counsel
and other advisors (each an “Indemnified Person”) against, and hold each of them
harmless from, any and all liabilities, obligations, losses, claims, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever, including the reasonable fees and disbursements
of
counsel to an Indemnified Person, which may be imposed on, incurred by, or
asserted against any Indemnified Person, in any way relating to or arising
out
of this Agreement or the transactions contemplated hereby or any action taken
or
omitted to be taken by it hereunder (the “Indemnified Liabilities”); PROVIDED,
that the Company shall not be liable to any Indemnified Person for any portion
of such Indemnified Liabilities to the extent they are found by a final decision
of a court of competent jurisdiction to have resulted from such Indemnified
Person’s gross negligence or willful misconduct. If and to the extent that the
foregoing indemnification is for any reason held unenforceable, the Company
agrees to make the maximum contribution to the payment and satisfaction of
each
of the Indemnified Liabilities which is permissible under applicable
law.
-O-
(c) OTHER
CHARGES. The Company agrees to indemnify the Collateral Agent against and hold
it harmless from any and all present and future stamp, transfer, documentary
and
other such taxes, levies, fees, assessments and other charges made by any
jurisdiction by reason of the execution, delivery, performance and enforcement
of this Agreement.
SECTION
15. GENDER
AND NUMBER. In this Agreement the masculine shall include the feminine and
the
singular shall include the plural and vice versa.
SECTION
16. GOVERNING
LAW AND RELATED MATTERS. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING, WITHOUT
LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT RESORT TO THAT STATE’S CONFLICT-OF-LAW RULES, EXCEPT AS REQUIRED
BY MANDATORY PROVISIONS OF LAW AND TO THE EXTENT THE VALIDITY OR 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.
ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST THE COMPANY ARISING OUT OF OR RELATING
TO
THIS AGREEMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT THE COMPANY ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREES
TO
BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS
AGREEMENT.
The
Company hereby agrees that service of all process in any such proceeding in
any
such court may be made by registered or certified mail, return receipt
requested, to the Company at its address set forth in Section 12 hereof, such
service being hereby acknowledged by the Company to be sufficient for personal
jurisdiction in any action against the Company in any such court and to be
otherwise effective and binding service in every respect. Nothing herein shall
affect the right to serve process in any other manner permitted by law or shall
limit the right of the Collateral Agent to bring proceedings against the Company
in the courts of any other jurisdiction.
THE
COMPANY AND THE COLLATERAL
AGENT
HEREBY IRREVOCABLY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND
THE
RELATIONSHIP THAT IS BEING ESTABLISHED.
The
scope of this waiver is intended to be all-encompassing of any and all disputes
that may be filed in any court and that relate to the subject matter of this
transaction, including without limitation contract claims, tort claims, breach
of duty claims and all other common law and statutory claims. The Company and
the Collateral Agent (i) acknowledge that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on this waiver in entering into this relationship, and that each will continue
to rely on this waiver in their related future dealings and (ii) further
warrants and represents that each has reviewed this waiver with its legal
counsel and that each knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR
IN
WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS OF THIS AGREEMENT.
In the
event of litigation, this provision may be filed as a written consent to a
trial
by the court.
-P-
SECTION
17. 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 Company and the Collateral
Agent.
SECTION
18. 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
19. 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
20. CONTINUING
SECURITY INTEREST; TRANSFER OF NOTES. This Agreement shall create a continuing
security interest in the Collateral and shall (i) remain in full force and
effect until the payment in full of all of the Senior Note Secured Obligations,
(ii) be binding on the Company and its successors and assigns, and (iii) inure
together with the rights of Collateral Agent hereunder, to the benefit of
Collateral Agent and its successors, transferees and assigns, as agent for
and
representative of the Holders. Without limiting the generality of the foregoing
clause (iii), any Holder may assign or otherwise transfer any Senior Notes
held
by it to any other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to such Holder.
SECTION
21. TERMINATION.
Upon payment in full of all Senior Note Secured Obligations (i) this Agreement
and any and all security interests, liens and/or other encumbrances granted
by
the Company to the Collateral Agent, as agent for and representative of the
2003
Holders and the 2005 Holders, shall, without any further action by the Company
or the Collateral Agent, automatically terminate and be released and be of
no
further force and effect, (ii) the Collateral Agent shall promptly execute
and
deliver to the Company such agreements, releases, satisfactions, documents
and
instruments reasonably requested by the Company as shall be necessary to
evidence termination of all security interests given by the Company to the
Collateral Agent hereunder, and (iii) the Collateral Agent hereby authorizes
the
Company to file, record and/or deliver all reasonably requested agreements,
releases, satisfactions, instruments, or documents evidencing the terminations
and releases provided for herein and to file termination statements under the
UCC with respect to the Collateral. Upon the receipt from the Company of written
notice of a binding agreement with respect to a bona fide sale, collaboration,
partnering transaction or similar transaction between the Company and a third
party involving the sale or licensing of one or more Company assets which (x)
will result in all Senior Note Secured Obligations being paid in full and (y)
is
anticipated to close within the ten (10) day period subsequent to the date
of
delivery of such written notice, all documents and instruments to be delivered
pursuant to clause (ii) above shall be delivered by the Collateral Agent to
counsel to the Company within five (5) business days of such written notice
from
the Company so as to enable such counsel to the Company to hold, in escrow,
such
documents and instruments in its possession pending the closing of such
transaction and payment in full of all Senior Note Secured
Obligations.
-Q-
[remainder
of page left intentionally blank]
-R-
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement, as of
the
date first above written.
| “COMPANY” | “COLLATERAL AGENT” | ||
| INSITE VISION INCORPORATED, a Delaware corporation | THE BANK OF NEW YORK | ||
| By: _________________________ | By: _________________________ | ||
|
Name:
|
Name:
|
||
|
Title:
|
Title:
|
||
| Notice Address: 000 X. Xxx Xxxxxxx Xxxx. Xxxxx #0000 Xxxxxx, Xxxxx 00000 | |||
|
Attn:
Xxxxxxx
Xxxxxx
|
“ORIGINAL
HOLDER”
X. XXXXX XXXXXXXXXXXXXX, PH.D.
____________________________
-S-
