Exhibit 10.42
[FORM OF SECURITY AGREEMENT]
COLLATERAL ACCOUNT AND SECURITY AGREEMENT
DATED AS XX XXXXX 00, 0000
XXXXX
XXXX INTERNATIONAL, INC.
THE PURCHASERS PARTY HERETO
BANKERS TRUST COMPANY,
AS COLLATERAL AGENT
AND
BANKERS TRUST COMPANY,
AS DEPOSITARY BANK
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS 1
SECTION 1.1. CAPITALIZED TERMS 1
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Section 1.2. Uniform Commercial Code; Interpretation 3
SECTION 2. COLLATERAL AGENT 4
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SECTION 2.1. APPOINTMENT AND DUTIES OF THE COLLATERAL AGENT 4
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SECTION 2.2. RIGHTS OF COLLATERAL AGENT 4
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SECTION 2.3. INDEMNIFICATION AND FEES OF THE COLLATERAL AGENT 6
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SECTION 2.4. RESIGNATION OR REMOVAL OF THE COLLATERAL AGENT 7
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SECTION 2.5. SUCCESSOR COLLATERAL AGENT 8
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SECTION 2.6. CONSENTS UNDER COLLATERAL DOCUMENTS 8
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SECTION 2.7. DEPOSITARY BANK 8
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SECTION 3. THE ACCOUNTS 8
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SECTION 3.1. DEPOSITARY BANK; MAINTENANCE OF ACCOUNTS; LIMITED COMPANY
RIGHTS 8
SECTION 3.2. ESTABLISHMENT OF ACCOUNTS 9
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SECTION 4. DEPOSITS INTO ACCOUNTS 10
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SECTION 4.1. DEPOSIT OF ROYALTY PAYMENTS. ETC. 10
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SECTION 4.2. NOTICE OF DEPOSITS TO COLLATERAL AGENT 10
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SECTION 4.3. INITIAL DEPOSIT INTO RESERVE ACCOUNT 10
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SECTION 5. DISBURSEMENTS PROM ACCOUNTS 10
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SECTION 5.1. DISBURSEMENTS FROM THE COLLECTION ACCOUNT 10
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SECTION 5.2. DISBURSEMENTS FROM THE RESERVE ACCOUNT 11
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SECTION 5.3. TRANSFERS WHEN AN EVENT OF DEFAULT IS CONTINUING 11
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SECTION 5.4. DISPOSITION OF ACCOUNTS UPON PAYMENT OF SECURED OBLIGATIONS 11
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SECTION 6. PERMITTED INVESTMENTS 11
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SECTION 7. COLLATERAL 12
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SECTION 8. FURTHER ASSURANCES REMEDIES 12
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SECTION 8.1. DELIVERY AND OTHER PERFECTION 12
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SECTION 8.2. OTHER FINANCING STATEMENTS AND LIENS 13
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SECTION 8.3. PRESERVATION OF RIGHTS 13
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SECTION 8.4. SPECIAL PROVISIONS RELATING TO LICENSE AGREEMENT 13
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SECTION 8.5. EVENTS OF DEFAULT, ETC. 14
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SECTION 8.6. REMOVALS, ETC 15
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SECTION 8.7. PRIVATE SALE 15
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SECTION 8.8. ATTORNEY-IN-FACT 15
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SECTION 8.9. PERFECTION 15
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SECTION 8.10. TERMINATION OF SECURITY INTEREST 16
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SECTION 8.11. EXPENSES 16
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SECTION 8.12. FURTHER ASSURANCES 16
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SECTION 9. APPLICATION OF PROCEEDS 16
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SECTION 10. ADDITIONAL SECURED INDEBTEDNESS 17
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SECTION 11. MISCELLANEOUS 17
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SECTION 11.1. NO WAIVER 17
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SECTION 11.2. SEVERABILITY 18
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SECTION 11.3. SUCCESSORS AND ASSIGNS 18
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SECTION 11.4. COUNTERPARTS 18
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SECTION 11.5. AMENDMENT WAIVER, ETC 18
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SECTION 11.6. HEADINGS 18
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SECTION 11.7. NOTICES 18
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SECTION 11.8. REINSTATEMENT 18
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SECTION 11.9. TERMINATION 19
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SECTION 11.10. NO THIRD PARTY BENEFICIARIES 19
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SECTION 11.11. GOVERNING LAW 19
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ANNEX A FORM OF WITHDRAWAL REQUEST
COLLATERAL ACCOUNT AND SECURITY AGREEMENT
COLLATERAL ACCOUNT AND SECURITY AGREEMENT dated as of March
22, 1999 among IGEN INTERNATIONAL, INC., a corporation duly organized and
validly existing under the laws of the State of Delaware (the "Company"); the
institutions named on the signature pages hereof under the caption "PURCHASERS";
Bankers Trust Company, acting in its capacity as collateral agent for the
Secured Parties (in such capacity, together with its successors and permitted
assigns, the "Collateral Agent") and Bankers Trust Company, acting in its
capacity as depositary bank for the Secured Parties (in such capacity, together
with its successors and permitted assigns, the "Depositary Bank") in each case
as herein provided.
The Company has authorized the issuance of $30,000,000
aggregate principal amount of its 8.50% Senior Secured Notes due 2006 pursuant
to the separate Note Purchase Agreements (collectively, as amended, restated,
modified or supplemented and in effect from time to time, the "Note Purchase
Agreement"), each dated as of March 22, 1999, with each of the purchasers named
on Schedule A thereto.
The parties hereto desire to enter into this Agreement to set
forth their mutual understanding with respect to the appointment of the
Collateral Agent and various matters with respect to the Accounts and the
Collateral (each as defined below).
NOW, THEREFORE, to induce the Purchasers to enter into the
Note Purchase Agreement and to purchase the Notes to be purchased by each such
Purchaser, and for and in consideration of the premises and of the covenants
herein contained, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto intending to be
legally bound, covenant and agree as follows:
SECTION 1. DEFINITIONS.
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Section 1.1. Capitalized Terms. Capitalized terms used herein
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and not defined herein shall have the meanings assigned thereto in the Note
Purchase Agreement, whether specifically set forth therein or by reference to
another document. In addition, as used herein the following terms shall have the
following respective meanings (all terms defined in this Section 1.1 and in the
other provisions of this Agreement in the singular to have the same meanings
when used in the plural and vice versa):
"Accounts" has the meaning set forth in Section 3.2(a).
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"BMG Litigation" means the litigation between the Company and BMG described
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under the heading "BOEHRINGER MANNHEIM ("ROCHE") in Note 3 to the Company's
financial statements for the fiscal quarter ended December 31, 1998.
"Collateral" has the meaning set forth in Section 7.
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"Collateral Agent" is defined in the preamble hereto.
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"Collateral Documents" means this Agreement and all UCC financing
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statements
required by this Agreement to be filed with respect to the Liens on
personal property of the Company created pursuant hereto.
"Collection Account" means the securities account entitled "Collection
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Account" maintained by and in the name of the Collateral Agent with its
Corporate Trust Department at the Depositary Bank in New York, New York.
"Company" is defined in the preamble hereto.
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"Depositary Bank" is defined in the preamble hereto.
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"Funds" means, collectively, all Permitted Investments and all other items
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of property (whether investment property, financial asset, security, instrument
or cash) deposited in or credited to either Account.
"Noteholder" means the holder or holders from time to time of the Notes.
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"Note Purchase Agreement" is defined in the preamble hereto.
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"Permitted Investments" means:
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(a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of America (or by any
agency thereof to the extent such obligations are backed by the full faith and
credit of the United States of America), in each case maturing within one year
from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date
of acquisition thereof and having, at such date of acquisition, the highest
credit rating obtainable from Standard & Poor's Rating Group, a division of
XxXxxx-Xxxx, Inc. ("S&P"), or from Xxxxx'x Investors Service, Inc. ("Moody's");
(c) investments in certificates of deposit, banker's acceptances and time
deposits maturing within 180 days from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the laws
of the United States of America or any State thereof which (i) has a combined
capital and surplus and undivided profits of not less than $500,000,000 and (ii)
whose long-term unsecured debt obligations (or the long-term unsecured debt
obligations of the bank holding company owning all of the capital stock of such
bank) shall have been given one of the highest three ratings by at least one
credit rating agency of recognized national standing in the United States of
America;
(d) fully collateralized repurchase agreements with a term of not more than
30 days for securities described in clause (a) above and entered into with a
financial institution satisfying the criteria described in clause (c) above; and
(e) money market mutual funds (including money market funds or money market
mutual funds for which the Collateral Agent in its individual capacity or any of
its Affiliates is investment manager or advisor or from which the Collateral
Agent in its individual capacity or any of its Affiliates charges or collects
fees and expenses for services rendered) which are rated by S&P and Moody's at
the time at which the investment is made in one of its three highest long-term
rating categories.
"Required Reserve Balance" means, as of any date (a) prior to the first
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Note Payment Date, $600,000, (b) on or after the first Note Payment Date but
prior to the second Note Payment Date, $800,000, (c) on or after the second Note
Payment Date but prior to the third Note Payment Date, $1,000,000, (d) on or
after the third Note Payment Date but prior to the fourth Note Payment Date,
$1,200,000, (e) on or after the fourth Note Payment Date but prior to the fifth
Note Payment Date, $1,400,000, (f) on or after the fifth Note Payment Date but
prior to the sixth Note Payment Date, $1,700,000 and (g) on or after the sixth
Note Payment Date, an amount equal to the aggregate amount of (1) all payments
of principal of, interest on and Make-Whole Amount, if any, payable with respect
to, the Notes and (2) all other amounts payable to the Collateral Agent or any
Secured Party with respect to the Secured Obligations, in the case of both of
the foregoing clauses (1) and (2), which are due and owing on the next
succeeding Note Payment Date.
"Reserve Account" means the securities account entitled `Reserve Account"
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maintained by and in the name of the Collateral Agent with its Corporate Trust
Department at the Depositary Bank in New York, New York.
"Reserve Account Balance" means on any date an amount equal to the
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collected credit balance of Funds held in or credited to the Reserve Account on
such date.
"Secured Obligations" means (a) the principal of, interest on and
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Make-Whole Amount, if any, payable with respect to, the Notes and (b) all other
amounts from time to time payable to the Collateral Agent or any Noteholder
under the Note Purchase Agreement or any other Financing Document.
"Secured Parties" means, collectively, the Noteholders and the Collateral
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Agent and their respective successors and assigns.
"UCC" means the Uniform Commercial Code of the State of New York.
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"Withdrawal Request" means a request substantially in the form of Annex A
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hereto.
Section 1.2. Uniform Commercial Code; Interpretation. All terms defined in
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the UCC shall have the respective meanings given to those terms in the UCC,
except where the context otherwise requires. Unless the context otherwise
requires, any reference in this Agreement to any agreement shall mean such
agreement and all schedules, exhibits and attachments thereto as amended,
supplemented, modified or replaced. Unless otherwise stated,
any reference in this Agreement to any Person shall include its permitted
successors and assigns.
SECTION 2. COLLATERAL AGENT.
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Section 2.1. Appointment and Duties of the Collateral Agent.
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(a) Each Noteholder on the date hereof, and each other Secured Party from
time to time by its acceptance of the security interests granted under the
Collateral Documents, hereby designates and appoints Bankers Trust Company to
act on its behalf as the Collateral Agent under the Collateral Documents, and
hereby authorizes the Collateral Agent to execute, deliver and perform, on
behalf of each of the Secured Parties, each Collateral Document to which the
Collateral Agent is or is intended to be a party and to take such actions on
behalf of the Secured Parties under the provisions of such Collateral Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Collateral Agent by the terms of each Collateral Document, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in any Collateral Document, the Collateral
Agent shall not have any duties or responsibilities, except those expressly set
forth herein and in the Collateral Documents, or any fiduciary relationship with
any Secured Party, and no implied covenants, functions or responsibilities shall
be read into any Collateral Document or otherwise exist against the Collateral
Agent.
(b) The Collateral Agent will forward to each Secured Party at its last
address on the records of the Collateral Agent promptly after the Collateral
Agent's receipt thereof (and will use its reasonable efforts to forward within
two Business Days of the receipt) a copy of each document furnished to the
Collateral Agent under any Financing Document (including each Withdrawal
Request).
(c) The Collateral Agent shall deliver to the Company and each Secured
Party, within five Business Days after the end of each calendar month
(commencing with the calendar month in which the first deposit is made to the
Collection Account), a report in reasonable detail setting forth with respect to
each Account all deposits to and disbursements from such Account during such
calendar month, including the date on which made, and the balances of and any
investments in such Account as of the end of such calendar month. The Collateral
Agent shall provide any additional information or reports relating to any such
Account and the transactions therein reasonably requested in writing from time
to time by the Company or any Secured Party.
(d) The Collateral Agent hereby waives any Lien it may now have, or may
subsequently acquire, in or on any Collateral other than the security interests
granted under the Collateral Documents, any right to apply the Collateral
against claims other than claims of the Secured Parties in respect of the
security interests granted under this Agreement and any right to set off claims
against such Collateral other than claims of the Secured Parties in respect of
such security interests.
Section 2.2. Rights of Collateral Agent.
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(a) The Collateral Agent may execute any of its duties under this Agreement
by or through agents or attorneys-in-fact, provided that the Collateral Agent
shall be liable for any
willful misconduct or gross negligence on the part of any such agents or
attorneys-in-fact (other than any such agents or attorneys-in-fact retained by
the Collateral Agent at the direction of, or with the prior approval of, the
Required Holders).
(b) Neither the Collateral Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it under or in connection with
this Agreement (except for its own gross negligence or its own willful
misconduct), (ii) responsible in any manner to any of the Secured Parties for
any recitals, statements, representations or warranties made by the Company or
any other party (other than the Collateral Agent) or any representative thereof
contained in the Financing Documents or in any certificate, report, statement or
other document referred to or provided for in, or received by the Collateral
Agent under or in connection with, any Financing Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of any
Financing Document or for any failure of the Company or any other party (other
than the Collateral Agent) to perform their respective obligations thereunder,
(iii) responsible or liable in any manner whatever for soliciting any finds or
for the sufficiency, correctness, genuineness or validity of any funds,
securities or other amounts deposited with or held by it or (iv) liable for the
selection of Permitted Investments or for investment losses incurred thereon.
The Collateral Agent shall have no liability in respect of losses incurred as a
result of the liquidation of any Permitted Investment prior to its stated
maturity or the failure of the Company to provide timely written investment
direction.
(c) The Collateral Agent shall be entitled to conclusively rely, and shall
be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, statement, order or other document
reasonably believed by it to be genuine and correct and to have been signed,
sent or made by the proper person or entity and upon advice and statements of
legal counsel, independent accountants and other experts reasonably selected by
the Collateral Agent. In connection with any request of the Required Holders,
the Collateral Agent shall be fully protected in relying on a certificate of any
Secured Party, reasonably believed by the Collateral Agent to be signed by an
authorized representative of such Secured Party, setting forth the Secured
Obligations held by such Secured Party as of the date of such certificate, which
certificate shall state that the person signing such certificate is an
authorized representative of such Secured Party and shall state specifically
which provision of this Agreement pursuant to which the Collateral Agent is
being directed to act. The Collateral Agent shall be entitled to conclusively
rely, and shall be fully protected in relying, in good faith on such
certificate. The Collateral Agent shall be fully justified in failing or
refusing to take any action under this Agreement (i) if such action would, in
the reasonable opinion of the Collateral Agent, be contrary to law or the terms
of this Agreement, (ii) if such action is not specifically provided for in this
Agreement, or it shall not have received any such advice or concurrence of the
Required Holders as it deems appropriate or (iii) if, in connection with the
taking of any such action that would constitute an exercise of remedies under
this Agreement or the Note Purchase Agreement or is pursuant to a direction or
request of the Required Holders described in 2.2(e) hereof, it shall not first
be indemnified to its reasonable satisfaction by the Secured Parties against any
and all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Collateral Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement in accordance with a request of the Required Holders, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Secured Parties.
(d) If, with respect to a proposed action to be taken by it, the Collateral
Agent shall reasonably conclude in good faith that the provisions of this
Agreement relating to the functions or responsibilities or discretionary powers
of the Collateral Agent are or may be ambiguous or inconsistent, the Collateral
Agent shall notify the Secured Parties, identifying the proposed action and the
provisions that it considers are or may be ambiguous or inconsistent, and may
decline either to perform such function or responsibility or to exercise such
discretionary power unless it has received the written confirmation of the
Required Holders that the Required Holders concur in the circumstances that the
action proposed to be taken by the Collateral Agent is consistent with the terms
of this Agreement or is otherwise appropriate. The Collateral Agent shall be
fully protected in acting or refraining from acting upon the confirmation of the
Required Holders in this respect, and such confirmation shall be binding upon
the Collateral Agent and the other Secured Parties.
(e) The Collateral Agent shall not be deemed to have knowledge or notice of
the occurrence of any Event of Default unless and until the Collateral Agent has
actual knowledge thereof or has received a written notice or a certificate from
a Secured Party or the Company stating that an Event of Default has occurred.
The Collateral Agent shall have no obligation after receiving such notice or
certificate to inquire whether an Event of Default has in fact occurred and
shall be entitled to rely conclusively, and shall be fully protected in so
relying, on any notice or certificate so furnished to it. No provision of any
Financing Document shall require the Collateral Agent to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties thereunder or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. In the event that the Collateral Agent obtains actual knowledge of, or
receives such a notice of, the occurrence of any Event of Default, the
Collateral Agent shall give notice thereof to the Secured Parties. The
Collateral Agent shall take only such action with respect to such Event of
Default as so directed in writing by the Required Holders.
Section 2.3. Indemnification and Fees of the Collateral Agent.
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(a) The Company shall indemnify the Collateral Agent and its directors,
officers, employees and agents from and against any and all claims, losses,
liabilities, obligations, actions, judgments, suits, damages, costs, expenses
and disbursements (including, without limitation, the reasonable fees, expenses
and disbursements of counsel) of any kind or nature whatsoever tat may at any
time be incurred by the Collateral Agent (hereinafter the "Indemnification
Amount") growing out of or resulting from (i) any Financing Document or any
Collateral Document (including, without limitation, the enforcement of any
Financing Document or any Collateral Document, but excluding any such claims,
losses, liabilities, obligations, actions, judgments, suits, damages, costs,
expenses or disbursements resulting from the Collateral Agent's gross negligence
or willfull misconduct or resulting from any action brought by a Secured Party
against the Collateral Agent), (ii) any refund or adjustment of any amount paid
or payable to the
Collateral Agent or any Secured Party under or in respect of any Financing
Document or any Collateral, or any interest thereon, which may be ordered or
otherwise required by any Person, except to the extent arising out of the
Collateral Agent's own gross negligence or its own willfull misconduct, (iii)
the establishment of the Accounts, the acceptance of deposits, the purchase or
sale of instruments, investments or securities, the retention of cash and
instruments, investments or securities or the proceeds thereof and any payment,
transfer or other application of cash or instruments, investments or securities
by the Collateral Agent in accordance with the provisions of this Agreement or
the Note Purchase Agreement, or as may arise by reason of any act, omission or
error of the Collateral Agent made in good faith in the conduct of its duties,
except to the extent arising out of the Collateral Agent's own gross negligence
or willful misconduct or (iv) this Agreement except to the extent arising out of
the Collateral Agent's own gross negligence or its own willful misconduct. If
the Company fails to pay on demand the Indemnification Amount, interest will
accrue thereon at the Default Rate from the scheduled date for payment thereof
until the actual date of payment and such interest shall be added to the
Indemnification Amount.
(b) The Company will pay upon demand to the Collateral Agent the amount of
any and all reasonable out-of-pocket expenses, including the reasonable fees and
expenses of its counsel (and any local counsel) and of any experts and agents,
which the Collateral Agent may incur in connection with (i) the administration
of any Financing Document, (ii) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Collateral, (iii) the
exercise or enforcement (whether through negotiations, legal proceedings or
otherwise) of any of the rights of the Collateral Agent or the Secured Parties
under any Financing Document or any Collateral Document or (iv) the failure by
the Company or any other person or entity to perform or observe any of the
provisions of any Financing Document.
(c) The Company agrees to pay to the Collateral Agent an annual collateral
agency fee in advance, as agreed upon in writing by the Company and the
Collateral Agent, on each anniversary of the date of Closing occurring during
the period commencing on the date of Closing to and including the date on which
the Secured Obligations are paid in full (or on such other dates as otherwise
agreed by the Company and the Collateral Agent).
(d) The provisions of this Section 2.3 shall survive termination of this
Agreement and the resignation or removal of the Collateral Agent.
Section 2.4. Resignation or Removal of the Collateral Agent. The Collateral
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Agent may resign upon not less than 30 days' prior written notice to the Secured
Parties and the Company and may be removed at any time with or without cause by
the Required Holders, with any such resignation or removal to become effective
only upon the appointment of a successor Collateral Agent under this Section
2.4. If the Collateral Agent shall resign or be removed, then the Required
Holders shall (and if no such successor shall have been appointed within 60 days
of the Collateral Agent's resignation or removal, the Collateral Agent may or
may petition a court of competent jurisdiction to) appoint a successor agent for
the Secured Parties, which successor agent shall (i) be a bank or trust company
that has an office in New York, New York and that has a combined capital and
surplus of at least $500,000,000 and (ii) unless a Default or Event of Default
has occurred and is continuing, be reasonably
acceptable to the Company, whereupon such successor agent shall succeed to the
rights, powers and duties of the "Collateral Agent" and the term "Collateral
Agent" shall mean such successor agent effective upon its appointment, and the
former Collateral Agent's rights, powers and duties as Collateral Agent shall be
terminated, without any other or further act or deed on the part of such former
Collateral Agent (except that the Collateral Agent resigning or being removed
shall deliver all Collateral then in its possession to the successor Collateral
Agent) or any of the other Secured Parties. After any retiring Collateral
Agent's resignation or removal hereunder, the provisions of this Agreement shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was the Collateral Agent.
Section 2.5. Successor Collateral Agent. Any corporation into which the
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Collateral Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Collateral Agent shall be a party, or any corporation
succeeding to the business of the Collateral Agent shall be the successor of the
Collateral Agent hereunder, provided that corporation satisfies the eligibility
requirements specified in clause (i) of Section 2.4, without the execution or
filing of any paper with any party hereto or any further act on the part of any
of the parties hereto except where an instrument of transfer or assignment is
required by law to effect such succession, anything herein to the contrary
notwithstanding.
Section 2.6. Consents Under Collateral Documents. Without the prior written
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consent of the Required Holders, the Collateral Agent will not consent to any
amendment, restatement, modification, supplement or waiver under any of the
Collateral Documents, provided that, without the prior consent of each Secured
Party, the Collateral Agent shall not (except as provided herein), (i) consent
to the release of any Collateral or otherwise terminate any Lien hereunder, (ii)
agree to additional obligations being secured by such Lien (other than as
contemplated by Section 10 hereof) or (iii) alter the relative priorities of the
obligations entitled to the benefits of the Liens created hereunder, except that
no such consent shall be required, and the Collateral Agent is hereby
authorized, to consent to the release of any Lien covering property that is the
subject of either a disposition of property permitted hereunder or a disposition
to which the Required Holders have consented.
Section 2.7. Depositary Bank. The Depositary Bank shall be entitled to the
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same rights, privileges and immunities as the Collateral Agent in connection
with its duties and obligations hereunder.
SECTION 3. THE ACCOUNTS.
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Section 3.1. Depositary Bank; Maintenance of Accounts; Limited Company
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Rights.
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(a) Depositary Bank. For all purposes of this Agreement, any reference
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herein to an application or disposition of Funds held in or credited to either
Account by the Collateral Agent shall be deemed to refer to an application or
disposition of such Funds by the Depositary Bank, and the Collateral Agent
agrees that it will cause the Depositary Bank to make all applications and
dispositions of Funds held in or credited to either Account at such times and
in such amounts as is required by the terms of this Agreement.
(b) Acceptance of Payment on Maintenance of Accounts. The Collateral Agent
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hereby agrees to cause to be accepted by the Depositary Bank and the Depositary
Bank hereby agrees to accept all Funds to be delivered to or held by the
Collateral Agent pursuant to the terms of this Agreement. The Company shall
maintain the Accounts at the Depositary Bank during the term of this Agreement.
The Collateral Agent and the Depositary Bank hereby agree that the Funds held in
or credited to the Accounts shall be treated as "financial assets" (as defined
in Section 8-102(a)(9) of the UCC).
(c) Limited Company Rights. The Company shall not have any rights against
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or to Funds held in or credited to the Accounts, as third party beneficiary or
otherwise, except the right to receive monies held in the Accounts as permitted
by Paragraph Three of Section 5.1 or to direct the investment of Funds held in
or credited to the Accounts as permitted by Section 6. Except as expressly
provided in this Agreement, in no event shall any Permitted Investments
deposited in or credited to any Account be registered in the name of the
Company, payable to the order of the Company or specially indorsed to the
Company except to the extent that the foregoing have been specially indorsed to
the Collateral Agent or in blank.
(d) Entitlement Orders. The Depositary Bank shall comply solely with
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"entitlement orders" (within the meaning of Section 8-102(a)(8) of the UCC)
relating to any financial asset held in any Account without further consent by
the Company. Each of the Company and the Depositary Bank hereby represents that
it has not entered into, and hereby agrees that until the payment in full of the
Secured Obligations, it shall not enter into, any agreement with any other
Person (other than the Collateral Agent) relating to the Accounts (or any Funds
deposited therein or credited thereto) pursuant to which the Depositary Bank has
agreed or would agree, as the case may be, to comply with entitlement orders
made by such Person. Each of the Company and the Depositary Bank hereby
represents that it has not entered into any other agreement with the Company or
any other Person purporting to limit or condition the obligation of the
Collateral Agent or the Depositary Bank to comply with entitlement orders as set
forth in this Section 3.1(d).
Section 3.2. Establishment of Accounts.
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(a) The Collateral Agent will, prior to the date of Closing, establish with
the Depositary Bank the following special, segregated securities accounts (the
"Accounts"; each such Account being a "securities account" as such term is
defined in Section 8-501(a) of the UCC)) in the name of the Collateral Agent
which shall be maintained at all times until the termination of this Agreement:
1. the Collection Account; and
2. the Reserve Account.
(b) The Depositary Bank represents that the Accounts have been established
on the books and records of the Corporate Trust Department of the Depositary
Bank and that each such Account is a "securities account" (as defined in section
8-501(a) of the UCC) in
respect of which the Depositary Bank is a "securities intermediary" (as defined
in Section 8-102(a)(14) of the UCC) and the Collateral Agent is the "entitlement
holder" (as defined in Section 8-102(a)(7) of the UCC). The Depositary Bank
represents that the "securities intermediary's jurisdiction'"' (within the
meaning of Section 8-110(e) of the UCC) of the Depositary Bank with respect to
the Accounts is the State of New York.
(c) The account numbers of the Accounts established by, and in the name of,
the Collateral Agent will be notified by the Collateral Agent to the Company and
each Secured Party promptly upon the establishment thereof.
(d) All Funds from time to time deposited in or credited to each Account
shall be held in the name of the Collateral Agent for the benefit of the Secured
Parties in the custody of the Collateral Agent for the purposes and on the terms
set forth in this Agreement. All such Funds shall constitute a part of the
Collateral and shall not constitute payment of any Indebtedness or any other
obligation of the Company until applied as hereinafter provided.
SECTION 4. DEPOSITS INTO ACCOUNTS.
----------------------
Section 4.1. Deposit of Royalty Payments, etc. All (i) Royalty Payments
----------------------------------
payable to or for the benefit of the Company under the License Agreement and
(ii) all other amounts specified in Sections 7(c) and 7(d) shall be paid
directly to, and any such amounts received by the Company shall be deposited by
the Company with, on the day of receipt of such amounts, the Collateral Agent on
behalf of the Secured Parties for deposit in the Collection Account.
Section 4.2. Notice of Deposits to Collateral Agent. Promptly alter
------------------------------------------
obtaining knowledge that the Collateral Agent will receive funds for deposit
into the Collection Account, the Company shall notify the Collateral Agent that
the Collateral Agent will be receiving such funds and the approximate date of
such deposit and will specify the source of such funds.
Section 4.3. Initial Deposit Into Reserve Account. On the date of Closing,
------------------------------------
the Company shall cause $600,000 to be deposited into the Reserve Account.
SECTION 5. DISBURSEMENTS FROM ACCOUNTS.
---------------------------
Section 5.1. Disbursements from the Collection Account. On each Note
--------------------------------------------
Payment Date, the Collateral Agent shall withdraw Funds from the Collection
Account for application in the following order of priority (such withdrawals to
be made not later than 11:00 a.m. (New York time) on such Note Payment Date and
only to the extent Funds are available therefor in the Collection Account):
First, the Collateral Agent shall make pro rata payments of principal of,
-----
interest on, and the Make-Whole Amount, if any, owing in respect of, the Notes
and all other Secured Obligations then due and owing;
Second, if the Reserve Account Balance is less than the Required Reserve
------
Balance as of such Note Payment Date, the Collateral Agent shall transfer to the
Reserve Account an amount of Funds equal to such deficiency; and
Third, if (x) no Default or Event of Default has occurred and is continuing
-----
and (y) the Royalty Payment Coverage Ratio is equal to or greater than 1.25 to
1.00 as of the end of the fiscal quarter of the Company ending on or immediately
preceding such Note Payment Date (as certified in the applicable Withdrawal
Request), the Collateral Agent shall transfer the balance, if any, of Funds held
in or credited to the Collection Account to the Company.
Not later than two Business Days prior to each Note Payment Date, the Company
shall provide the Collateral Agent with a Withdrawal Request specifying the
information needed to enable the Collateral Agent to calculate the amount of
Funds to be withdrawn from the Collection Account and applied in accordance with
this Section 5.1. Notwithstanding anything in this Section 5.1 to the contrary,
if the Company fails to deliver a Withdrawal Request for the transfer of funds
under this Section 5.1, the Collateral Agent is authorized upon the written
instructions of the Required
Holders to make withdrawals from the Collection Account for application in
accordance with Paragraphs First, and Second above.
Section 5.2. Disbursements from the Reserve Account.
--------------------------------------
(a) On each Note Payment Date, if the aggregate amount of Funds transferred
by the Collateral Agent pursuant to Paragraph First of Section 5.1 on such Note
Payment Date is less than the aggregate amount of principal of, interest on, and
Make-Whole Amount, if any, payable in respect of, the Notes and all other
Secured Obligations due and owing as of such Note Payment Date (prior to giving
effect to such transfer), the Collateral Agent shall withdraw Funds from the
Reserve Account (such withdrawals to be made not later than 11:00 a.m. (New York
time) on such Note Payment Date and only to the extent funds are available
therefor) in an amount equal to such deficiency and shall transfer such Funds to
the applicable Secured Parties.
(b) On each Note Payment Date, in the event (after giving effect to the
transfers referred to above) the Reserve Account Balance exceeds the Required
Reserve Balance, the collateral Agent shall withdraw from the Reserve Account
and deposit in the Collection Account the amount of Funds equal to such excess.
Section 5.3. Transfers When an Event of Default is Continuing. Upon receipt
------------------------------------------------
by the Collateral Agent of written notice that an Event of Default has occurred
and is continuing, the Collateral Agent shall make transfers from the Accounts
in accordance with Section 9.
Section 5.4. Disposition of Accounts Upon Payment of Secured Obligations.
------------------------------------------------------------
Upon final indefeasible payment in full of the Secured Obligations, the
Collateral Agent shall hold all Funds held in or credited to the Accounts to the
order of the Company or as otherwise required by applicable law.
SECTION 6. PERMITTED INVESTMENTS. Upon the request of the Company, the
----------------------
Collateral Agent shall invest and reinvest any Funds held in or credited to
either Account from time to time in Permitted Investments as instructed by the
Company; provided, that (a) if the Company fails to so instruct the Collateral
Agent or upon the occurrence and
continuance of an Event of Default, the Collateral Agent shall invest and
reinvest such Funds in Permitted Investments of the type described in clause (e)
of the definition of such term or as otherwise directed by the Required Holders
and (b) the maturity of any Permitted Investment shall not exceed 270 days (or,
in the case of any Permitted Investment held in or credited to the Collection
Account, the maturity thereof shall not extend beyond the Business Day
immediately preceding the Note Payment Date next succeeding the date of
acquisition thereof). Earnings on Permitted Investments held in or credited to
each Account shall be deposited in such Account for application as provided for
herein. All such investments and reinvestments shall be held in the name, and
shall be under the sole dominion and control, of the Collateral Agent. All Funds
held in or credited to either Account that are invested in a Permitted
Investment are deemed to be held in such Account for all purposes of this
Agreement. The Collateral Agent shall have no liability for any loss in
investment of Funds held in or credited to either Account invested in Permitted
Investments.
SECTION 7. COLLATERAL. As collateral security for the prompt payment in
----------
full when due (whether at stated maturity, by acceleration or otherwise) of the
Secured Obligations, now existing or hereafter arising, the Company hereby
pledges, hypothecates, assigns, and transfers to the Collateral Agent for the
equal and ratable benefit of the Secured Parties, and hereby grants to the
Collateral Agent for the equal and ratable benefit of the Secured Parties a
security interest in, all of the Company's right, title and interest in, to and
under the following property, whether now owned by the Company or hereafter
acquired and whether now existing or hereafter coming into existence and
wherever located (all being collectively referred to herein as "Collateral"):
(a) each Account and all Funds held in or credited to each thereof;
(b) all cash, investments and securities at any time on deposit in any
Account, including all income or gain earned thereon and any proceeds
thereof;
(c) all Royalty Payments and all rights of the Company to receive
moneys due and to become due under or pursuant to the License Agreement
with respect thereto;
(d) the proceeds of any judgments, settlements or other payments in
connection with the BMG Litigation or any other litigation, arbitration or
other legal proceeding relating to the Royalty Payments; and
(e) without limiting the provisions of the preceding clauses of this
Section 7, all proceeds, products, accessions, benefits, substitutions and
replacements of and to any of the property of the Company described in the
preceding clauses of this Section 7.
SECTION 8. FURTHER ASSURANCES; REMEDIES. In furtherance of the grant of the
----------------------------
pledge and security interest pursuant to Section 7, the Company hereby agrees
with each Secured Party as follows:
Section 8.1. Delivery and Other Perfection. The Company shall:
------------------------------------------------
(a) give, execute, deliver, file and record any financing statement,
notice,
instrument, document, agreement or other papers that may be necessary
or desirable (in the judgment of the Collateral Agent) to create,
preserve, perfect or validate the security interest granted pursuant
hereto or to enable the Collateral Agent to exercise and enforce its
rights hereunder with respect to such pledge and security interest;
(b) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise xxxx such books and records in such
manner as the Collateral Agent may reasonably require in order to
reflect the security interests granted by this Agreement; and
(c) permit representatives of the Collateral Agent, upon
reasonable notice, at any time during normal business hours to (i)
inspect and make abstracts from its books and records pertaining to
the Collateral and (ii) be present at the Company's place of business
to receive copies of all communications and remittances relating to
the Collateral, and forward copies of any notices or communications
received by the Company with respect to the Collateral, all in such
manner as the Collateral Agent may reasonably require.
Section 8.2. Other Financing Statements and Liens. The Company shall not
--------------------------------------
file or suffer to be on file, or authorize or permit to be filed or to be on
file, in any jurisdiction, any financing statement or like instrument with
respect to the Collateral in which the Collateral Agent is not named as the sole
secured party for the benefit of the Secured Parties.
Section 8.3. Preservation of Rights. The Collateral Agent shall not be
-----------------------
required to take steps necessary to preserve any rights against prior parties to
any of the Collateral.
Section 8.4. Special Provisions Relating to License Agreement.
---------------------------------------------------------
(a) Anything herein to the contrary notwithstanding, the Company shall
remain liable to perform all of its duties and obligations under the License
Agreement and in respect of the Collateral to the same extent as if this
Agreement had not been executed. The exercise by the Collateral Agent or any
other Secured Party of any of the rights and remedies hereunder shall not
release the Company from any of its duties or obligations under the License
Agreement or in respect of the Collateral. Neither the Collateral Agent nor any
of the other Secured Parties shall have any obligation or liability under the
License Agreement or otherwise in respect of the Collateral by reason of this
Agreement or be obligated to perform any of the obligations or duties of the
Company under the License Agreement or otherwise in respect of the Collateral or
to take any action to collect or enforce any claim for payment or any other
right assigned hereunder.
(b) The Company will at all times maintain instructions with BMG directing
BMG to make all Royalty Payments directly to the Collection Account.
(c) If the Company fails to perform any agreement contained herein, the
Collateral Agent may, with reasonable notice to the Company, itself perform, or
cause the performance of, such agreement, and the reasonable expenses of the
Collateral Agent incurred in connection therewith shall be payable by the
Company and shall be Secured Obligations to the Collateral Agent secured under
Section 7.
Section 8.5. Events of Default, Etc. During the period during which an
------------------------------------------------------------
Event of Default shall have occurred and be continuing:
------------------------------------------------------
(i) the Collateral Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the Collateral and may
extend the time of payment, arrange for payment in installments, or
otherwise reasonably modify the terms of any of the Collateral;
(ii) the Collateral Agent shall have all of the rights and remedies
with respect to the Collateral of a secured party under the UCC (whether or
not the UCC is in effect in the jurisdiction where the rights and remedies
are asserted) and such additional rights and remedies to which a secured
party is entitled under the laws in effect in any jurisdiction where any
rights and remedies hereunder may be asserted, including, without
limitation, the right to the maximum extent permitted by law, to exercise
all voting, consensual and other powers of ownership pertaining to the
Collateral as if the Collateral Agent were the sole and absolute owner
thereof, (and the Company agrees to take all such action as may be
appropriate to give effect to such right);
(iii) the Collateral Agent may, in its name or in the name of the
Company or otherwise, demand, xxx for, collect or receive any money or
property at any time payable or receivable on account of or in exchange for
any of the Collateral, but shall be under no obligation to do so;
(iv) the Collateral Agent may, upon 10 Business Days' prior notice to
the Company of the time and place, with respect to the Collateral or any
part thereof which shall then be or shall thereafter come into the
possession, custody or control of the Collateral Agent, the other Secured
Parties or any of their respective agents, sell, lease, assign or otherwise
dispose of all or any part of such Collateral, at such place or places as
the Collateral Agent deems best, and for cash or for credit or for future
delivery (without thereby assuming any credit risk), at public or private
sale, without demand of performance or notice of intention to effect any
such disposition or of the time or place thereof (except such notice as is
required above or by applicable statute and cannot be waived), and the
Collateral Agent or any other Secured Party or anyone else may be the
purchaser, lessee, assignee or recipient of any or all of the Collateral so
disposed of at any public sale (or, to the extent permitted by law, at any
private sale) and thereafter hold the same absolutely, free from any claim
or right of whatsoever kind, including any right or equity of redemption
(statutory or otherwise), of the Company, any such demand, notice and right
or equity being hereby expressly waived and released; and the Collateral
Agent may, without notice or publication, adjourn any public or private
sale or cause the same to be adjourned from time to time by announcement at
the time and place fixed for the sale, and such sale may be made at any
time or place to which the sale may be so adjourned; and
(v) The Collateral Agent's and any Secured Party's sole duty with
respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the UCC or otherwise,
shall be to deal with it in the same
manner as the Collateral Agent or such Secured Party deals with
similar property for its own account. None of the Collateral Agent or the
Secured Parties, nor their respective directors, officers, employees, or
agents, shall be liable to the Company for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any of the Collateral
upon the request of the Company or any other Person or to take any other
action whatsoever with regard to the Collateral or any part thereof The
rights of the Collateral Agent and the Secured Parties hereunder shall not
be conditioned or contingent upon the pursuit by the Collateral Agent or
any Secured Party of any right or remedy against the Company or against any
other Person which may be or become liable in respect of all or any part of
the Secured Obligations or against any collateral security therefore,
guarantee thereof or right of offset with respect thereto.
The proceeds of each collection or other disposition under this Section 8.5
shall be applied in accordance with Section 9.
Section 8.6. Removals, Etc. Without at least 30 days' prior notice to the
--------------
Collateral Agent, the Company shall not (a) maintain any of its Records at any
office or maintain its principal place of business at any place other than at
the address specified in Section 5.21 of the Note Purchase Agreement or (b)
change its name, or the name under which it does business, from the name shown
on the signature pages hereto.
Section 8.7. Private Sale. The Collateral Agent and the other Secured
-------------
Parties, respectively, shall incur no liability as a result of the sale of the
Collateral, or any part thereof, at any private sale, pursuant to Section 8.5,
conducted in a commercially reasonable manner. The Company hereby waives any
claims against the Collateral Agent or any other Secured Party arising by reason
of the fact that the price at which the Collateral may have been sold at such a
private sale was less than the price which might have been obtained at a public
sale or was less than the aggregate amount of the Secured Obligations, even if
the Collateral Agent accepts the first offer received and does not offer the
Collateral to more than one offeree.
Section 8.8. Attorney-in-Fact. Without limiting any rights or powers
----------------
granted by this Agreement to the Collateral Agent while no Event of Default has
occurred and is continuing, upon the occurrence and during the continuance of
any Event of Default the Collateral Agent is hereby appointed the
attorney-in-fact of the Company for the purpose of carrying out the provisions
of this Section 8 and taking any action and executing any instruments which the
Collateral Agent may reasonably deem necessary or advisable to accomplish the
purposes hereof, which appointment as attorney-in-fact is irrevocable and
coupled with an interest. Without limiting the generality of the foregoing, so
long as the Collateral Agent shall be entitled under this Section 8 to make
collections in respect of the Collateral, the Collateral Agent shall have the
right and power, with reasonable notice to the Company, to receive, endorse and
collect all checks made payable to the order of the Company representing any
dividend, payment or other distribution in respect of the Collateral or any part
thereof and to give full discharge for the same.
Section 8.9. Perfection. Prior to or concurrently with the execution and
----------
delivery.
of this Agreement, the Company shall deliver to the Collateral Agent in form for
filing such financing statements and other documents in such offices as the
Collateral Agent may reasonably request to perfect the security interests
granted by Section 3 of this Agreement. The Company hereby authorizes the
Collateral Agent to file one or more financing or continuation statements, and
amendments thereto, relating to all or any part of the Collateral without the
signature of the Company where permitted by law.
Section 8.10. Termination of Security Interest. When all
--------------------------------
Secured Obligations shall have been finally and indefeasibly paid in full, the
security interest created by this Agreement shall terminate and the Collateral
Agent shall forthwith cause to be assigned, transferred and delivered, against
receipt but without any recourse, warranty or representation whatsoever, any
remaining Collateral and money received in respect thereof, to or on the order
of the Company.
Section 8.11. Expenses. The Company agrees to reimburse each of the Secured
--------
Parties and the Collateral Agent for all costs and expenses of the Secured
Parties and the Collateral Agent (including, without limitation, the fees and
expenses of legal counsel) in connection with (a) any Event of Default and any
enforcement or collection proceeding resulting therefore including, without
limitation, all manner of participation in or other involvement with (i)
performance by the Collateral Agent of any obligation that the Company has
failed or refused to perform, (ii) bankruptcy, insolvency, receivership,
foreclosure, winding up or liquidation proceedings, or any actual or attempted
sale, or any exchange, enforcement, collection, compromise or settlement in
respect of any of the Collateral, and for the care of the Collateral and
defending or asserting rights and claims of the Collateral Agent in respect
thereof, by litigation or otherwise, including expenses of insurance, (iii)
judicial or regulatory proceedings, (iv) workout, restructuring or other
negotiations or proceedings (whether or not the workout, restructuring or
transaction contemplated thereby is consummated) and (v) enforcement proceedings
hereunder in respect of the Collateral and (b) the enforcement of this Section
8.11, and all such costs and expenses shall be Secured Obligations entitled to
the benefits of the collateral security provided pursuant to Section 7.
Section 8.12. Further Assurances. The Company agrees that, from time to
-------------------
time upon the request of the Collateral Agent, the Company will execute and
deliver such further documents and do such other acts and things as the
Collateral Agent may reasonably request in order fully to effectuate the
purposes of this Agreement.
SECTION 9. APPLICATION OF PROCEEDS. After an Event of Default has occurred
-----------------------
and is continuing, except as otherwise expressly provided herein, the proceeds
of any collection, sale or other realization of all or any part of the
Collateral pursuant to any Collateral Document, and any Funds held in or
credited to the Accounts and cash at the time held by the Collateral Agent under
this Section 9 shall be distributed by the Collateral Agent at the times
specified in the following order of priority:
First, to the Collateral Agent in an amount equal to (a) the cost of
-----
any indemnity to be provided to the Collateral Agent in respect of the
enforcement of any of the rights of the Collateral Agent or other Secured
Parties under the Collateral Documents and (b) the fees and expenses of the
Collateral Agent then due and owing;
Second, to the Secured Parties in an amount equal to the fees and
------
expenses (including counsel fees and expenses) of the Secured Parties in
respect of the enforcement of any of the rights of the Secured Parties
under the Financing Documents to the extent permitted by such documents;
Third, to the Noteholders in an amount equal to the unpaid interest on
-----
the Notes, whether or not then due and owing and, in case such proceeds
shall be insufficient to pay in full such interest, then to the payment
thereof ratably (without priority of any one over any other) in proportion
to the unpaid amounts thereof on the relevant date;
Fourth, to the Noteholders in an amount equal to the unpaid principal
------
of the Notes whether or not then due and owing and, in case such proceeds
shall be insufficient to pay in full such principal, then to the payment
thereof ratably (without priority of any one over any other) in proportion
to the unpaid amounts thereof on the relevant date;
Fifth, to the Secured Parties in an amount equal to all other Secured
-----
Obligations due such Secured Parties under the Financing Documents and, in
case such proceeds shall be insufficient to pay in full such Secured
Obligations, then to the payment thereof ratably (without priority of any
one over any other) in proportion to the unpaid amounts thereof on the
relevant date; and
Sixth, after payment in full of all Secured Obligations, any surplus
-----
then remaining shall be transferred to the Company or its successors or
assigns, or to whomever may be lawfully entitled to receive the same, or as
a court of competent jurisdiction may direct.
As used in this Section 9, "proceeds" of Collateral shall mean cash,
securities and other property realized in respect of, and distributions in kind
of, Collateral, including any such amounts received under any reorganization,
liquidation, or adjustment of debt of the Company.
SECTION 10. ADDITIONAL SECURED INDEBTEDNESS. If the Company shall at any
---------------------------------
time desire to incur any additional Secured Indebtedness in compliance with the
provisions of Section 10.6 of the Note Purchase Agreement, the Company shall
give `written notice thereof to the Collateral Agent and the other Secured
Parties, and any such notice shall include calculations in reasonable detail
demonstrating that the incurrence of such Indebtedness (on the proposed date of
issuance thereof) will comply with the requirements of Section 10.6 of the Note
Purchase Agreement. Upon receipt of any such notice, the Collateral Agent and
the Secured Parties agree to execute and deliver such further instruments
(including an amendment to this Agreement) and do such other acts and things as
may be reasonably required to cause the Lien created by this Agreement to
equally and ratably secure the obligations of the Company in respect of such
additional Secured Indebtedness.
SECTION 11. MISCELLANEOUS.
-------------
Section 11.1. No Waiver. No failure on the part of the Collateral Agent to
---------
exercise, no course of dealing and no delay in exercising any right, power or
remedy under this Agreement shall operate as a waiver thereof and no single or
partial exercise of any right, power
or remedy under this Agreement shall preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies
provided herein are cumulative and not exclusive of any remedies provided by
law.
Section 11.2. Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the fun extent permitted by law)
not invalidate or render unenforceable such provision in any other jurisdiction.
Section 11.3. Successors and Assigns. This Agreement shall bind and inure
----------------------
to the benefit of and be enforceable by the Company, the Collateral Agent and
the other Secured Parties and their respective permitted successors and assigns
hereunder and, in addition, shall inure to the benefit of and be enforceable by
all Secured Parties from time to time; provided, however, that the Company shall
not assign or transfer its rights or obligations hereunder without the prior
written consent of the Required Holders.
Section 11.4. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original but all of which together shall
constitute one instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all, of the parties
hereto.
Section 11.5. Amendment, Waiver, Etc. No amendment or waiver of any
------------------------
provision of this Agreement shall be effective unless the same shall be in
writing and signed by the Collateral Agent, the Required Holders and the
Company, and any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given (provided that (i) no
amendment, modification or waiver shall, unless by an instrument signed by all
of the Secured Parties or by the Collateral Agent acting with the consent of all
of the Secured Parties, amend or waive Sections 2.3, 5 or 9 or this Section
11.5).
Section 11.6. Headings. The table of contents and captions and section
--------
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
Section 11.7. Notices. All notices, requests, consents and demands
-------
hereunder shall be in writing and telecopied or delivered to the intended
recipient at its "Address for Notices" specified pursuant to Section 18 of the
Note Purchase Agreement or, if to the Collateral Agent or the Depositary Bank,
at the "Address for Notices" specified below its name on the signature pages
hereof or, as to any party, at such other address as shall be designated by such
party in a notice to each other party, and in any case, shall be deemed to have
been given at the times specified in said Section 18.
Section 11.8. Reinstatement. This Agreement and any Lien created hereunder
-------------
shall automatically be reinstated if and to the extent that for any reason any
payment by or on behalf of the Company in respect of the Secured Obligations is
rescinded or must otherwise be restored by any Secured Party, whether as a
result of any proceedings in bankruptcy or
reorganization or otherwise, and the Company shall indemnify the Collateral
Agent and each other Secured Party on demand for all reasonable costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel) incurred by the Collateral Agent or such other Secured Party in
connection with such rescission or restoration.
Section 11.9. Termination. This Agreement shall remain in full force and
-----------
effect until all Secured Obligations shall have been finally and indefeasibly
paid in full. The provisions of Section 2.3 shall survive any termination of
this Agreement.
Section 11.10. NO THIRD PARTY BENEFICIARIES. The agreements of the parties
----------------------------
hereto are solely for the benefit of the Company, the Collateral Agent and the
Secured Parties, and no Person (other than the Secured Parties and their
successors and permitted assigns hereunder) shall have any rights hereunder.
Section 11.11. GOVERNING LAW. This agreement shall be governed by and
--------------
construed in accordance with the law of the State of New York (excluding choice
of law principles of the law of such State that would require the application of
the law of jurisdiction other than such State).
IN WITNESS WHEREOF, the Company, each Purchaser, the Collateral Agent and
the Depositary Bank have caused this Agreement to be duly executed by their duly
authorized officers all as of the date first above written.
IGEN INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Title: Chief Financial Officer
BANKERS TRUST COMPANY,
as Collateral Agent
By: /s/Xxx Xxxx
---------------
Name: Xxxxx Xxxx
Title: Vice President
Address for Notices:
Bankers Trust Company
Corporate Trust & Agency Services
Four Albany Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attention: Structured Finance
BANKERS TRUST COMPANY,
as Depositary Bank
By: /s/Xxxxx Xxxx
-----------------
Name: Xxxxx Xxxx
Title: Vice President
Address for Notices:
Bankers Trust Company
Corporate Trust & Agency Services
Four Albany Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attention: Structured Finance
PURCHASERS
----------
XXXX XXXXXXX MUTUAL LIFE INSURANCE
COMPANY
By: /s/Xxxxxxx Xxxxxxx
----------------------
Title: Senior Investment Advisor
XXXX XXXXXXX VARIABLE LIFE
INSURANCE COMPANY
By: /s/Xxxxxxx Xxxxxxx
----------------------
Title: Senior Investment Advisor
INVESTORS PARTNER LIFE INSURANCE
By: /s/Xxxxxxx Xxxxxxx
----------------------
Title: Senior Investment Advisor
LUCENT TECHNOLOGIES INC. MASTER
PENSION
By: /s/Xxxxxxx Xxxxxxx
----------------------
Title: Senior Investment Advisor
