Exhibit 10.2
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INTELLECTUAL PROPERTY
SECURITY AGREEMENT
BETWEEN
HEMASURE INC.
AND
FLEET NATIONAL BANK
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Dated as of September 15, 1998
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TABLE OF CONTENTS
Page
Section 1. Pledge........................................................1
Section 2. Secured Obligations...........................................3
Section 3. No Release....................................................3
Section 4. Use and Pledge of Pledged Collateral..........................3
Section 5. Supplements; Further Assurances...............................3
Section 6. Representations and Warranties of Pledgor.....................4
Section 7. Covenants.....................................................5
Section 8. Transfers and Other Liens.....................................8
Section 9. Remedies upon Default.........................................8
Section 10. Application of Proceeds.......................................9
Section 11. Expenses.....................................................10
Section 12. No Waiver; Cumulative Remedies...............................10
Section 13. The Bank May Perform; the Bank Appointed Attorney-in-Fact....11
Section 14. Indemnity....................................................11
Section 15. Litigation...................................................13
Section 16. Modifications in Writing.....................................13
Section 17. Termination; Release.........................................14
Section 18. Reinstatement................................................14
Section 19. Notices......................................................14
Section 20. Continuing Security Interest; Assignment.....................14
Section 21. GOVERNING LAW; TERMS.........................................15
Section 22. CONSENT TO JURISDICTION AND SERVICE OF PROCESS...............15
Section 23. Severability of Provisions...................................16
Section 24. Execution in Counterparts....................................16
Section 25. Headings.....................................................16
Section 26. Obligations Absolute.........................................16
Section 27. Waiver of Single Action......................................16
Section 28. Future Advances..............................................17
SCHEDULES
Schedule A Patents
Schedule B Trademarks & Service Marks
Schedule C Copyrights
Schedule D Liens
Schedule E Required Consents & Licenses
Schedule F Claims, Litigation, etc.
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INTELLECTUAL PROPERTY SECURITY AGREEMENT
Dated as of September 15, 1998
THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT (this "Agreement") is made as
of September 15, 1998, by and between HEMASURE INC., a Delaware corporation
having its principal place of business at 000 Xxxxx Xxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000 ("Pledgor"), in favor of FLEET NATIONAL BANK, having an
office at Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank").
RECITALS
A. Pursuant to that certain Revolving Credit and Security Agreement dated
as of the date hereof (as amended or otherwise modified from time to time in
accordance with the terms thereof and in effect, the "Credit Agreement") by and
between Pledgor and the Bank, the Bank has agreed to make certain Revolving
Loans to Pledgor. Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Credit Agreement.
B. Pledgor is the owner of the Pledged Collateral (as hereinafter defined).
C. It is a condition precedent to the Bank's obligations to make the
Revolving Loans that Pledgor has agreed to execute and deliver the applicable
Loan Documents, including this Agreement.
D. This Agreement is given by Pledgor in favor of the Bank to secure the
payment and performance of all of the Secured Obligations (as defined in Section
2).
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Pledgor and the Bank hereby agree as follows:
Section 1. Pledge. Pledgor hereby pledges and grants to the Bank a
continuing first priority security interest in of Pledgor's all right, title and
interest, whether now existing or hereafter acquired, in and to the following
property (collectively, the "Pledged Collateral") to secure all of the Secured
Obligations:
(a) Patents issued or assigned to and all patent applications assigned
to Pledgor, including, without limitation, the patents and patent
applications listed on Schedule A hereto, along with any and all (1)
inventions and improvements described and claimed therein, (2) reissues,
divisions, continuing prosecution applications,
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continuations, extensions and continuations-in-part thereof, (3) income,
royalties, damages, claims and payments now and hereafter due and/or
payable under and with respect thereto, including, without limitation,
damages and payments for past or future infringements thereof, (4) rights
to xxx for past, present and future infringements thereof, and (5) any
other rights corresponding thereto throughout the world (collectively,
"Patents");
(b) Trademarks (including service marks), federal and state trademark
registrations and applications (but excluding any intent to use
application) made by Pledgor, common law trademarks and trade names owned
by or assigned to Pledgor and all registrations and applications for the
foregoing, including, without limitation, the registrations and
applications and unregistered trademarks and service marks listed on
Schedule B hereto, along with any and all (1) renewals thereof, (2) income,
royalties, damages and payments now and hereafter due and/or payable with
respect thereto, including, without limitation, damages, claims and
payments for past or future infringements thereof, (3) rights to xxx for
past, present and future infringements thereof, and (4) trademarks,
trademark registrations, and trade name applications for any thereof and
any other rights corresponding thereto throughout the world (collectively,
"Trademarks");
(c) Copyrights, whether statutory or common law, owned by or assigned
to Pledgor, including, without limitation, the registrations and
applications listed on Schedule C hereto, along with any and all (1)
renewals and extensions thereof, (2) income, royalties, damages, claims and
payments now and hereafter due and/or payable with respect thereto,
including, without limitation, damages and payments for past, present or
future infringements thereof, (3) rights to xxx for past, present and
future infringements thereof, and (4) copyrights and any other rights
corresponding thereto throughout the world (collectively, "Copyrights");
(d) The entire goodwill of Pledgor's business and other general
intangibles (including know-how, trade secrets, customer lists, proprietary
information, inventions, methods, procedures and formulae) connected with
the use of and symbolized by Trademarks of Pledgor; and
(e) All Proceeds (as defined under the Uniform Commercial Code as in
effect in any relevant jurisdiction (the "UCC") or other relevant law) of
any of the foregoing, and in any event including, without limitation, any
and all (1) proceeds of any insurance, indemnity, warranty or guaranty
payable to the Bank or to Pledgor from time to time with respect to any of
the Pledged Collateral, (2) payments (in any form whatsoever) made or due
and payable to Pledgor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or
any part of the Pledged Collateral by any Governmental Authority (or any
person acting on behalf of a Governmental Authority), (3) instruments
representing amounts receivable in
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respect of any Patents, Trademarks or Copyrights, (4) products of the
Pledged Collateral and (5) other amounts from time to time paid or payable
under or in connection with any of the Pledged Collateral;
provided that the Bank shall not be deemed to have a security interest in any
technology license entered into by Pledgor and any third party other than an
Affiliate or Subsidiary of Pledgor prior to the date hereof if the granting of
such security interest by Pledgor would be a violation of such technology
license.
Section 2. Secured Obligations. This Agreement secures, and the Pledged
Collateral is collateral security for, the prompt payment and performance in
full when due, whether at stated maturity, by acceleration or otherwise
(including, without limitation, the payment of interest and other amounts which
would accrue and become due but for the filing of a petition in bankruptcy or
the operation of the automatic stay under Section 362(a) of the Bankruptcy Code)
of (1) all Obligations of Pledgor now existing or hereafter arising under or in
respect of the Credit Agreement (including, without limitation, Pledgor's
obligations to pay principal and interest and all other charges, fees, expenses,
commissions, reimbursements, indemnities and other payments related to or in
respect of the obligations contained in the Credit Agreement) and (2) without
duplication, all Obligations of Pledgor now or hereafter existing under or in
respect of this Agreement, including, without limitation, with respect to all
charges, fees, expenses, commissions, reimbursements, indemnities and other
payments, if any, related to or in respect of the obligations contained in this
Agreement (collectively, the "Secured Obligations").
Section 3. No Release. Nothing set forth in this Agreement shall relieve
Pledgor from the performance of any term, covenant, condition or agreement on
Pledgor's part to be performed or observed under or in respect of any of the
Pledged Collateral or from any liability to any Person under or in respect of
any of the Pledged Collateral or impose any obligation on the Bank to perform or
observe any such term, covenant, condition or agreement on Pledgor's part to be
so performed or observed or impose any liability on the Bank for any act or
omission on the part of Pledgor relating thereto or for any breach of any
representation or warranty on the part of Pledgor contained in this Agreement or
any other Loan Document or under or in respect of the Pledged Collateral or made
in connection herewith or therewith. The obligations of Pledgor contained in
this Section 3 shall survive the termination of this Agreement and the discharge
of Pledgor's other obligations hereunder and under the other Loan Documents.
Section 4. Use and Pledge of Pledged Collateral. Unless an Event of Default
has occurred and is continuing, the Bank shall from time to time execute and
deliver, upon written request of Pledgor, any and all instruments, certificates
or other documents, in the form so requested, necessary or appropriate in the
reasonable judgment of Pledgor to enable Pledgor to continue to exploit,
license, use, enjoy and protect the Pledged Collateral throughout the
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world; provided, that any such usage complies with the applicable provisions of
the Credit Agreement.
Section 5. Supplements; Further Assurances. Pledgor (1) agrees that it will
join with the Bank in executing and, at its own expense, file and refile, or
permit the Bank to file and refile, such financing statements, continuation
statements and other documents (including, this Agreement), in such offices
(including, without limitation, the United States Patent and Trademark Office,
appropriate state trademark offices and the United States Copyright Office), as
the Bank may reasonably deem necessary or appropriate, wherever required or
permitted by law in order to perfect and preserve the rights and interests
granted to the Bank hereunder, and (2) hereby authorizes the Bank to file
financing statements and amendments, relative to all or any part thereof,
without the signature of Pledgor where permitted by law and agrees to do such
further acts and things, and to execute and deliver to the Bank such additional
assignments, agreements, powers and instruments, as the Bank may reasonably
require to carry into effect the purposes of this Agreement or better to assure
and confirm unto the Bank its respective rights, powers and remedies hereunder.
Pledgor shall, upon the reasonable request of the Bank, and hereby authorizes
the Bank to, take any and all such actions as may be deemed advisable by the
Bank to perfect and preserve the rights and interests granted to the Bank with
respect to the Pledged Collateral wherever located. All of the foregoing shall
be at the sole cost and expense of Pledgor.
Section 6. Representations and Warranties of Pledgor. Pledgor hereby
represents and warrants as follows:
(a) Pledgor is, and, as to Pledged Collateral acquired by it from time
to time after the date hereof, Pledgor will be, the sole and exclusive
owner or, as applicable, licensee of all Pledged Collateral. The pledge and
security interest created by this Agreement shall not at any time be
subject to any prior lien, pledge, security interest, encumbrance, license,
assignment, collateral assignment or charge of any kind, including, without
limitation, any filing or agreement to file a financing statement as debtor
under the UCC or any similar statute or any subordination arrangement in
favor of any party other than Pledgor (collectively, "Liens"), except for
those Liens set forth on Schedule D hereto (collectively, "Prior Liens")
and except as expressly permitted hereunder and under the Credit Agreement.
Pledgor further represents and warrants to the Bank that Schedules A, B and
C hereto, respectively, are true, correct and complete lists as of the date
hereof of all Patents, Trademarks and Copyrights owned by Pledgor and that
Schedules D, E and F hereto are true and correct with respect to the
matters set forth therein as of the date hereof.
(b) Pledgor has full corporate power and authority to pledge and grant
a security interest in the Pledged Collateral in accordance with the terms
of this Agreement and this Agreement constitutes the legal, valid and
binding obligation of Pledgor, enforceable against Pledgor in accordance
with its terms.
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(c) Except as set forth on Schedule E hereto and except for filings
with the Patent and Trademark Office and under the UCC, no authorization,
consent, approval, license, qualification or formal exemption from, nor any
filing, declaration or registration with, any court (other than in
connection with the exercise of judicial remedies), governmental agency or
regulatory authority, or with any securities exchange or any other Person
is required in connection with (1) the pledge by Pledgor of the Pledged
Collateral pursuant to this Agreement, or the execution, delivery or
performance by Pledgor of this Agreement, (2) the grant of a security
interest (including the priority thereof when the appropriate filings have
been made and accepted) in the Pledged Collateral by Pledgor in the manner
and for the purpose contemplated by this Agreement or (3) the exercise of
the rights and remedies of the Bank created hereby.
(d) Pledgor has made and will continue to make all necessary filings
and recordations from time to time and use appropriate statutory notice to
protect its interests in the Pledged Collateral, including, without
limitation, recordations of all its interests in the Patents and Trademarks
in the United States Patent and Trademark Office and in corresponding
offices throughout the world and its claims to Copyrights in the United
States Copyright Office, in each case as requested from time to time by
Collateral Agent and in a manner consistent with prudent business
practices.
(e) Pledgor owns or has rights to use all the Pledged Collateral and
all rights with respect to any of the foregoing used in, necessary for or
material to Pledgor's business as currently conducted and as contemplated
to be conducted pursuant to the Loan Documents. To Pledgor's best knowledge
after due inquiry, the use of such Pledged Collateral and all rights with
respect to the foregoing by Pledgor does not infringe on the rights of any
Person and, except as set forth on Schedule F attached hereto, no material
claim has been made and remains outstanding that Pledgor's use of the
Pledged Collateral does or may violate the rights of any third person.
(f) Upon filings and the acceptance thereof in the appropriate offices
under the UCC and in the United States Patent and Trademark Office and the
United States Copyright Office, this Agreement will create a valid and,
with respect to each U.S. Trademark, a duly perfected first priority lien
and security interest in the United States in the Pledged Collateral,
subject to no Liens other than Prior Liens. This Agreement has been duly
and validly executed and delivered by Pledgor, constitutes the legal, valid
and binding obligation of Pledgor and is enforceable against Pledgor in
accordance with its terms.
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Section 7. Covenants.
(a) On a continuing basis, Pledgor will, at the expense of Pledgor,
subject to any prior licenses, Liens and restrictions make, execute,
acknowledge and deliver, and file and record in the proper filing and
recording offices, all such instruments or documents, including, without
limitation, appropriate financing and continuation statements and
collateral agreements, and take all such action (limited, as aforesaid, if
applicable) as may reasonably be deemed necessary or appropriate by the
Bank (1) to carry out the intent and purposes of this Agreement, (2) to
assure and confirm to the Bank the grant or perfection of a security
interest in the Pledged Collateral for the benefit of the Bank, and (3)
during the continuation of an Event of Default, to enable the Bank to
exercise and enforce its rights and remedies hereunder with respect to any
Pledged Collateral. Without limiting the generality of the foregoing,
Pledgor:
(A) will not enter into any agreement that would impair or
conflict with Pledgor's obligations hereunder;
(B) will, from time to time, upon the Bank's request, cause its
books and records to be marked with such legends or segregated in such
manner as the Bank may specify and take or cause to be taken such
other action and adopt such procedures as the Bank may specify to give
notice or to perfect the security interest in the Pledged Collateral
intended to be conveyed hereby;
(C) will, promptly following its becoming aware thereof, notify
the Bank of
(i) any materially adverse determination in any proceeding
in the United States Patent and Trademark Office or United States
Copyright Office with respect to any Patent, Trademark or
Copyright material to Pledgor's business; or
(ii) the institution of any proceeding or any materially
adverse determination in any federal, state, local or foreign
court or administrative bodies regarding Pledgor's claim of
ownership in or right to use any of the Pledged Collateral, its
right to register the Pledged Collateral, or its right to keep
and maintain such registration in full force and effect;
(D) will properly maintain and protect the Pledged Collateral to
the extent necessary or appropriate for the conduct of Pledgor's
business (as presently conducted and as contemplated by the Loan
Documents) and consistent with Pledgor's current practice in
accordance with applicable statutory requirements;
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(E) will not grant or permit to exist any Lien upon or with
respect to the Pledged Collateral or any portion thereof except Liens
in favor of the Bank and Liens permitted by Section 8 hereof, and will
not execute any security agreement or financing statement covering any
of the Pledged Collateral except in the name of the Bank or as
permitted under this Agreement;
(F) except in accordance with prudent business practices, will
not permit to lapse or become abandoned, settle or compromise any
pending or future litigation or administrative proceeding with respect
to the Pledged Collateral without the consent of the Bank, or contract
for sale or otherwise dispose of the Pledged Collateral or any portion
thereof except pursuant to Section 8 hereof;
(G) upon Pledgor obtaining knowledge thereof, will promptly
notify the Bank in writing of any event which may reasonably be
expected to affect the value or utility of the Pledged Collateral or
any portion thereof, the ability of Pledgor or the Bank to dispose of
the Pledged Collateral or any portion thereof or the rights and
remedies of the Bank in relation thereto including, without
limitation, a levy or threat of levy or any legal process against the
Pledged Collateral or any portion thereof;
(H) until the Bank exercises its rights to make collection, will
diligently keep adequate records respecting the Pledged Collateral;
(I) subject to the first sentence of this Section 7(a), hereby
authorizes the Bank, in its sole discretion, to file one or more
financing or continuation statements and amendments thereto, relative
to all or any part of the Pledged Collateral without the signature of
Pledgor where permitted by law;
(J) will furnish to the Bank from time to time statements and
amended schedules further identifying and describing the Pledged
Collateral and such other materials evidencing or reports pertaining
to the Pledged Collateral as the Bank may from time to time request,
all in reasonable detail;
(K) will pay when due any and all taxes, levies, maintenance
fees, charges, assessments, licenses fees and similar taxes or
impositions payable in respect of the Pledged Collateral; and
(L) will comply in all material respects with all laws, rules and
regulations applicable to the Pledged Collateral.
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(b) If, before the Secured Obligations shall have been paid and
satisfied in full in cash or cash equivalents, Pledgor shall (1) obtain any
rights to any additional Pledged Collateral or (2) become entitled to the
benefit of any additional Pledged Collateral or any renewal or extension
thereof, including any reissue, division, continuation, or
continuation-in-part of any Patent, or any improvement on any Patent, the
provisions of this Agreement shall automatically apply thereto and any item
enumerated in clause 7(b)(1) or clause 7(b)(2) with respect to Pledgor
shall automatically constitute Pledged Collateral if such would have
constituted Pledged Collateral at the time of execution of this Agreement,
and be subject to the pledge, Lien and security interest created by this
Agreement without further action by any party. Pledgor shall promptly
provide to the Bank written notice of any of the foregoing. Pledgor shall,
at least once in each calendar quarter, provide written notice to the Bank
of all applications for Patents and all applications for registration of
Trademarks or Copyrights made during the preceding calendar quarter.
Pledgor agrees, promptly following the written request by the Bank, to
confirm the attachment of the lien and security interest created by this
Agreement to any rights described in clause 7(b)(1) or clause 7(b)(2) above
if such would have constituted Pledged Collateral at the time of execution
of this Agreement by execution of an instrument in form acceptable to the
Bank.
(c) Pledgor authorizes the Bank to modify this Agreement by amending
Schedules A, B and/or C annexed hereto to include any future Pledged
Collateral of Pledgor, including, without limitations any of the items
listed in Section 7(b).
(d) Pledgor shall, consistent with its current business practices,
file and prosecute diligently all applications for Patents, Trademarks or
Copyrights now or hereafter pending that would be useful or beneficial to
the businesses of Pledgor to which any such applications pertain, and to do
all acts necessary to preserve and maintain all rights in the Pledged
Collateral unless such Pledged Collateral has become obsolete to Pledgor's
business, as reasonably determined by Pledgor consistent with prudent
business practices. Any and all costs and expenses incurred in connection
with any such actions shall be borne by Pledgor. Except in accordance with
prudent business practices, Pledgor shall not abandon any right to file a
Patent, Trademark or Copyright application or any pending Patent, Trademark
or Copyright application or any Patent, Trademark or Copyright without the
consent of the Bank.
Section 8. Transfers and Other Liens. Pledgor will not (a) sell, convey,
assign or otherwise dispose of, or grant any option with respect to, any of the
Pledged Collateral except for licensing in the ordinary course of business and
such other transactions as may be permitted under the Credit Agreement or (b)
create or permit to exist any Lien upon or with respect to any of the Pledged
Collateral, except for Liens for taxes, assessments or government charges or
claims the payment of which is not at the time required and inchoate Liens
imposed by law
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(each of which shall, except to the extent otherwise required by law, be
subordinate to the lien created by this Agreement) and the lien granted to the
Bank under this Agreement.
Section 9. Remedies upon Default.
(a) If any Event of Default shall have occurred and be continuing, the
Bank may to the full extent permitted by law (1) exercise any and all
rights as beneficial and legal owner of the Pledged Collateral, including,
without limitation, perfecting assignment of any and all consensual rights
and powers with respect to the Pledged Collateral and (2) sell or assign or
grant a license to use, or cause to be sold or assigned or a license
granted to use any or all of the Pledged Collateral (in the case of
Trademarks, along with the goodwill associated therewith) or any part
thereof, in each case, free of all rights and claims of Pledgor therein and
thereto. In accordance with such rights, the Bank shall have the (A) right
to cause any or all of the Pledged Collateral to be transferred of record
into the name of the Bank or its nominee and (B) the right to impose (i)
such limitations and restrictions on the sale or assignment of the Pledged
Collateral as the Bank may deem to be necessary or appropriate to comply
with any law, rule or regulation (federal, state or local) having
applicability to the sale or assignment, and (ii) any necessary or
appropriate requirements for any required governmental approvals or
consents.
(b) Except as provided in this Section 9 and other express notice
provisions of the Loan Documents, Pledgor hereby expressly waives, to the
fullest extent permitted by applicable law, any and all notices,
advertisements, hearings or process of law in connection with the exercise
by the Bank of any of its rights and remedies hereunder.
(c) Pledgor agrees that, to the extent notice of sale shall be
required by law, ten (10) days' notice from the Bank of the time and place
of any public sale or of the time after which a private sale or other
intended disposition is to take place shall be commercially reasonable
notification of such matters. In addition to the rights and remedies
provided in this Agreement and in the other Loan Documents, the Bank shall
have all the rights and remedies of a secured party under the UCC.
(d) Except as otherwise provided herein, Pledgor hereby waives, to the
fullest extent permitted by applicable law, notice or judicial hearing in
connection with the Bank's taking possession or the Bank's disposition of
any of the Pledged Collateral, including, without limitation, any and all
prior notice and hearing for any prejudgment remedy or remedies and any
such right which Pledgor would otherwise have under law, and Pledgor hereby
further waives to the extent permitted by applicable law: (1) all damages
occasioned by such taking of possession; (2) all other requirements as to
the time, place and terms of sale or other requirements with respect to the
enforcement of the Bank's rights hereunder; and (3) all rights of
redemption, appraisal, valuation, stay,
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extension or moratorium now or hereafter in force under any applicable
law. Any sale of, or the grant of options to purchase, or any other
realization upon, any Pledged Collateral shall operate to divest all right,
title, interest, claim and demand, either at law or in equity, of Pledgor
therein and thereto, and shall be a perpetual bar both at law and in equity
against Pledgor and against any and all-Persons claiming or attempting to
claim the Pledged Collateral so sold, optioned or realized upon, or any
part thereof, from, through or under Pledgor.
Section 10. Application of Proceeds. The proceeds of any Pledged Collateral
obtained pursuant to the exercise of any remedy set forth in Section 9 shall be
applied, together with any other sums then held by the Bank pursuant to this
Agreement, promptly by the Bank:
First, to the payment of all costs and expenses, fees,
commissions and taxes of such sale, collection or other realization,
including, without limitation, reasonable reimbursement to the Bank
and its agents and counsel for all expenses, fees, liabilities and
advances made or incurred by them in connection therewith and all
expenses, liabilities and advances made or incurred by the Bank in
connection therewith, together with interest on each such amount at
the rate then in effect under the Credit Agreement;
Second, to the payment of all other costs and expenses of such
sale, collection or other realization, including, without limitation,
reasonable reimbursement to the Bank and their agents and counsel for
all expenses, fees, liabilities and advances made or incurred by them
in connection therewith and all costs, liabilities and indebtedness
made or incurred by the Bank in connection therewith together with
interest on each such amount at the highest rate then in effect under
the Credit Agreement;
Third, to the indefeasible payment in full in cash of the Secured
Obligations, ratably according to the unpaid amounts thereof, without
preference or priority of any kind among amounts so due and payable;
and
Fourth, to Pledgor, or its successors or assigns, or to
whomsoever may be lawfully entitled to receive the same or as a court
of competent jurisdiction may direct, of any surplus then remaining
from such Proceeds.
Section 11. Expenses. Pledgor will pay on demand all expenses of the Bank
in connection with the preparation, waiver or amendment of this Agreement, the
Note or other documents executed in connection therewith, or the administration,
default or collection of the Revolving Loans or other Obligations or
administration, default, collection in connection with the Bank's exercise,
preservation or enforcement of any of its rights, remedies or options
thereunder, including, without limitation, reasonable fees and disbursements of
outside legal counsel or accounting, consulting, brokerage or other similar
professional fees or expenses,
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and any fees or expenses associated with any travel or other costs relating to
any appraisals or examinations conducted in connection with the Obligations or
any Collateral therefor, and the amount of all such expenses shall, until paid,
bear interest at the rate applicable to principal hereunder (including any
default rate).
Section 12. No Waiver; Cumulative Remedies.
(a) No failure on the part of the Bank to exercise, no course of
dealing with respect to, and no delay on the part of the Bank in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power
or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The remedies herein provided
are cumulative and are not exclusive of any remedies provided by law.
(b) In the event the Bank shall have instituted any proceeding to
enforce any right, power or remedy under this instrument by foreclosure,
sale, entry or otherwise, and such proceeding shall have been discontinued
or abandoned for any reason or shall have been determined adversely to the
Bank, then and in every such case, Pledgor and the Bank shall, to the
extent permitted by applicable law, be restored to their respective former
positions and rights hereunder with respect to the Pledged Collateral, and
all rights, remedies and powers of the Bank shall continue as if no such
proceeding had been instituted.
Section 13. The Bank May Perform; the Bank Appointed Attorney-in-Fact. If
Pledgor shall fail to do any act or thing that it has covenanted to do hereunder
or any warranty on the part of Pledgor contained herein shall be breached, the
Bank may (but shall not be obligated to) do the same or cause it to be done or
remedy any such breach, and may expend funds for such purpose. Any and all
amounts so expended by the Bank shall be paid by Pledgor promptly upon demand
therefor, with interest at the highest rate then in effect under the Credit
Agreement during the period from and including the date on which such funds were
so expended to the date of repayment. Pledgor's obligations under this Section
13 shall survive the termination of this Agreement and the discharge of
Pledgor's other obligations hereunder. Pledgor hereby appoints the Bank its
attorney-in-fact with an interest, with full authority in the place and stead of
Pledgor and in the name of Pledgor, or otherwise, from time to time in the
Bank's reasonable discretion to take any action and to execute any instruments
consistent with the terms of this Agreement and the other Loan Documents which
the Bank may deem necessary or advisable to accomplish the purposes of this
Agreement. The foregoing grant of authority is a power of attorney coupled with
an interest and such appointment shall be irrevocable for the term of this
Agreement. Pledgor hereby ratifies all that such attorney shall lawfully do or
cause to be done by virtue hereof.
777771.1
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Section 14. Indemnity.
(a) Indemnity. Pledgor agrees to indemnify, reimburse and hold the
Bank and its successors, assigns, employees, agents and servants
(collectively, "Indemnitees") harmless from and against any and all
liabilities, obligations, damages, injuries, penalties, claims, demands,
actions, suits, judgments and any and all reasonable costs and expenses
(including, without limitation, attorneys' fees and expenses and the
allocated costs of internal counsel) of whatsoever kind and nature imposed
on, asserted against or incurred by any of the Indemnitees in any way
relating to or arising out of this Agreement or the other Loan Documents or
in any other way connected with the administration of the transactions
contemplated hereby or the enforcement of any of the terms hereof, or the
preservation of any rights hereunder, or in any way relating to or arising
out of the manufacture, processing, ownership, ordering, purchase,
delivery, control, acceptance, lease, financing, possession, operation,
condition, sale, return or other disposition, or use of the Pledged
Collateral (including, without limitation, latent or other defects, whether
or not discoverable, any claim for patent, trademark, trade secret or
copyright infringement), the violation of the laws of any country, state or
other governmental body or unit, any tort (including, without limitation,
claims arising or imposed under the doctrine of strict liability, or for or
on account of injury to or the death of any Person (including any
Indemnitee)), or property damage, or contract claim; provided that Pledgor
shall have no obligation to an Indemnitee hereunder to the extent it is
finally judicially determined that such indemnified liabilities arise
solely from the gross negligence or willful misconduct of that Indemnitee.
Upon written notice by any- Indemnitee of the assertion of such a
liability, obligation, damage, injury, penalty, claim, demand, action,
judgment or suit, Pledgor shall assume full responsibility for the defense
thereof. If any action, suit or proceeding arising from any of the
foregoing is brought against any Indemnitee, Pledgor shall, if requested by
such Indemnitee, resist and defend such action, suit or proceeding or cause
the same to be resisted and defended by counsel reasonably satisfactory to
such Indemnitee. Each Indemnitee shall, unless any other Indemnitee has
made the request described in the preceding sentence and such request has
been complied with, have the right to employ its own counsel (or internal
counsel) to investigate and control the defense of any matter covered by
the indemnity set forth in this Section 14 and the fees and expenses of
such counsel shall be paid by Pledgor; provided that, only to the extent
that no conflict exists between or among the Indemnitees as reasonably
determined by the Indemnitees, Pledgor shall not be obligated to pay the
fees and expenses of more than one counsel for all Indemnitees as a group
with respect to any such matter, action, suit or proceeding.
(b) Misrepresentations. Without limiting the application of subsection
15(a), Pledgor agrees to pay, indemnify and hold each Indemnitee harmless
from and against any loss, costs, damages and reasonable expenses which
such Indemnitee may suffer, expend or incur in consequence of or growing
out of any misrepresentation by Pledgor
777771.1
-12-
in this Agreement or any of the other Loan Documents or in any statement or
writing contemplated by or made or delivered pursuant to or in connection
with this Agreement or any of the other Loan Documents.
(c) Contribution. If and to the extent that the obligations of Pledgor
under this Section 14 are unenforceable for any reason, Pledgor hereby
agrees to make the maximum contribution to the payment and satisfaction of
such obligations that is permissible under applicable law.
(d) Survival. The obligations of Pledgor contained in this Section 14
shall survive the termination of this Agreement and the discharge of
Pledgor's other obligations hereunder and under the other Loan Documents.
(e) Reimbursement. Any amounts paid by any Indemnitee as to which such
Indemnitee has the right to reimbursement shall constitute Secured
Obligations secured by the Pledged Collateral.
Section 15. Litigation.
(a) Pledgor shall have the right to commence and prosecute in its own
name, as real party in interest, for its own benefit and at its own
expense, such applications for protection of Pledged Collateral, suits,
proceedings or other actions for infringement, counterfeiting, unfair
competition, dilution or other damage as are in its reasonable business
judgment necessary to protect the Pledged Collateral. Pledgor shall
promptly notify the Bank in writing as to the commencement and prosecution
of any such actions, or threat thereof relating to the Pledged Collateral
and shall provide to the Bank such information with respect thereto as may
be reasonably requested. The Bank shall provide all reasonable and
necessary cooperation in connection with any such suit, proceeding or
action, including, without limitation, joining as a necessary party.
(b) Upon the occurrence and during the continuation of an Event of
Default, the Bank shall have the right but shall in no way be obligated to
file applications for protection of the Pledged Collateral and/or bring
suit in the name of Pledgor, the Bank or the Bank to enforce the Pledged
Collateral and any license thereunder; in the event of such suit, Pledgor
shall, at the request of the Bank, do any and all lawful acts and execute
any and all documents required by the Bank in aid of such enforcement and
Pledgor shall promptly, upon demand, reimburse and indemnify the Bank, as
the case may be, for all costs and expenses incurred by the Bank in the
exercise of its rights under this Section 15. In the event that the Bank
shall elect not to bring suit to enforce the Pledged Collateral, Pledgor
agrees to use all measures, whether by action, suit, proceeding or
otherwise, to prevent the infringement, counterfeiting or other diminution
in value of any of the Pledged Collateral by others and for that purpose
agrees to diligently maintain any action, suit or proceeding against any
person so
777771.1
-13-
infringing necessary to prevent such infringement as is in the reasonable
business judgment of Pledgor necessary to protect the Pledged Collateral
and the Bank shall provide, at Pledgor's expense, all necessary and
reasonable assistance to Pledgor to maintain such action.
Section 16. Modifications in Writing. No amendment, modification,
supplement, termination or waiver of or to any provision of this Agreement, nor
consent to any departure by Pledgor therefrom, shall be effective unless the
same shall be in writing and signed by the Bank. Any amendment, modification or
supplement of or to any provision of this Agreement, any waiver of any provision
of this Agreement, and any consent to any departure by Pledgor from the terms of
any provision of this Agreement, shall be effective only in the specific
instance and for the specific purpose for which made or given. Except where
notice is specifically required by this Agreement or any other Loan Document, no
notice to or demand on Pledgor in any case shall entitle Pledgor to any other or
further notice or demand in similar or other circumstances.
Section 17. Termination; Release. When all the Secured Obligations (other
than Secured Obligations in the nature of continuing indemnitees or expense
reimbursement obligations not yet due and payable) have been paid in full and
have been terminated and the Revolving Loan Commitments of the Bank to make any
Loan under the Credit Agreement have expired, this Agreement shall terminate.
Upon termination of this Agreement or any release of Pledged Collateral in
accordance with the provisions of the Credit Agreement, the Bank shall, upon the
request and at the expense of Pledgor, forthwith assign, transfer and deliver to
Pledgor against receipt and without recourse to or warranty by the Bank, such of
the Pledged Collateral to be released (in the case of a release) as may be in
the possession of the Bank and as shall not have been sold or otherwise applied
pursuant to the terms hereof, on the order of and at the expense of Pledgor, and
proper instruments (including UCC termination statements on Form UCC-3 and
documents suitable for recordation in the United States Patent and Trademark
Office, the United States Copyright Office or similar domestic or foreign
authority) acknowledging the termination of this Agreement or the release of
such Pledged Collateral, as the case may be.
Section 18. Reinstatement. Notwithstanding the provisions of Section 17,
this Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time any amount received by the Bank in respect of the Secured
Obligations is rescinded or must otherwise be restored or returned by the Bank
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
Pledgor or upon the appointment of any intervenor or conservator of, or trustee
or similar official for, Pledgor or any substantial part of its properties, or
otherwise, all as though such payments had not been made.
Section 19. Notices. Unless otherwise provided herein or in the Credit
Agreement (with respect to the Bank), any notice or other communication herein
required or permitted to be given shall be in writing and may be personally
served, telecopied, telexed or sent by
777771.1
-14-
United States mail, if to Pledgor, addressed to it at the address set forth in
the Credit Agreement, if to the Bank, addressed to it at the address set forth
on the signature page of this Agreement, or as to any party at such other
address as shall be designated by such party in a written notice to the other
party complying as to delivery with the terms of this Section 19. All such
notices and other communications shall be deemed to have been given when
delivered in person, or received by telecopy or telex; or four Business Days
after deposit in the United States mail, registered or certified, with postage
prepaid and properly addressed; provided that notices to the Bank shall not be
effective until received by the Bank.
Section 20. Continuing Security Interest; Assignment. This Agreement shall
create a continuing security interest in the Pledged Collateral and shall (a)
remain in full force and effect until the payment in full in cash of all Secured
Obligations, (b) be binding upon Pledgor, its successors and assigns, and (c)
inure, together with the rights and remedies of the Bank hereunder, to the
benefit of the Bank and its successors, transferees and assigns; no other
Persons (including, without limitation, any other creditor of Pledgor) shall
have any interest herein or any right or benefit with respect hereto. Without
limiting the generality of the foregoing clause 20(c), the Bank may assign or
otherwise transfer any indebtedness held by it secured by this Agreement to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to the Bank, herein or otherwise, subject
however, to the provisions of the Credit Agreement.
Section 21. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT TO
THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER,
OR REMEDIES HEREUNDER IN RESPECT OF ANY PARTICULAR INTELLECTUAL PROPERTY ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE COMMONWEALTH OF
MASSACHUSETTS.
Section 22. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST PLEDGOR WITH RESPECT TO THIS AGREEMENT MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE
COMMONWEALTH OF MASSACHUSETTS AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT
PLEDGOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AGREEMENT. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY,
AND PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
777771.1
-15-
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS. IN THE EVENT THAT PLEDGOR DESIGNATES AND APPOINTS ANY PERSON AS
ITS AGENT AND SUCH PERSON IRREVOCABLY AGREES IN WRITING TO SO SERVE AS PLEDGOR'S
AGENT TO RECEIVE ON PLEDGOR'S BEHALF, SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE IS HEREBY ACKNOWLEDGED BY PLEDGOR TO
BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. A COPY OF SUCH PROCESS SO
SERVED SHALL BE MAILED BY REGISTERED MAIL TO PLEDGOR AT ITS ADDRESS PROVIDED FOR
IN SECTION 19 HEREOF. IF ANY AGENT APPOINTED BY PLEDGOR REFUSES TO ACCEPT
SERVICE, PLEDGOR HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE
SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE BANK TO BRING
PROCEEDINGS AGAINST PLEDGOR IN THE COURTS OF ANY OTHER JURISDICTION.
Section 23. Severability of Provisions. Any provision of this Agreement
which 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 or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 24. Execution in Counterparts. This Agreement and any amendments,
waivers, consents or supplements hereto may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original, but all
such counterparts together shall constitute one and the same agreement.
Section 25. Headings. The Section headings used in this Agreement are for
convenience of reference only and shall not affect the construction of this
Agreement.
Section 26. Obligations Absolute. To the extent permitted by applicable
law, all obligations of Pledgor hereunder shall be absolute and unconditional
irrespective of:
(a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition liquidation or the like of Pledgor or any other
Subsidiary of Pledgor;
(b) any lack of validity or enforceability of the Credit Agreement,
any other Loan Document, or any other agreement or instrument relating
thereto;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the Credit
Agreement, any other Loan Document, or any other agreement or instrument
relating thereto;
777771.1
-16-
(d) any exchange, release or non-perfection of any other collateral,
or any release or amendment or waiver of or consent to any departure from
any guarantee, for all or any of the Secured Obligations; or
(e) any exercise or non-exercise, or any waiver of any right, remedy,
power or privilege under or in respect of this Agreement or any other Loan
Document except as specifically set forth in a waiver granted pursuant to
the provisions of Section 16 hereof.
Section 27. Waiver of Single Action. Pledgor hereby waives to the greatest
extent permitted under law the right to a discharge of any of the Secured
Obligations under any statute or rule of law now or hereafter in effect which
provides that the exercise of any particular right or remedy as provided for
herein (by judicial proceedings or otherwise) constitutes the exclusive means
for satisfaction of the Secured Obligations or which makes unavailable any
further judgment or any other right or remedy provided for herein because the
Bank elected to proceed with the exercise of such initial right or remedy or
because of any failure by the Bank to comply with laws that prescribe conditions
to the entitlement to such subsequent judgment or the availability of such
subsequent right or remedy. In the event that, notwithstanding the foregoing
waiver, any court shall for any reason hold that such subsequent judgment or
action is not available to the Bank, Pledgor shall not (a) introduce in any
other jurisdiction any judgment so holding as a defense to enforcement against
Pledgor of any remedy in the Credit Agreement or executed in connection with the
Credit Agreement or (b) seek to have such judgment recognized or entered in any
other jurisdiction, and any such judgment shall in all events be limited in
application only to the state or jurisdiction where rendered and only with
respect to the collateral referred to in such judgment.
Section 28. Future Advances. This Agreement shall secure the payment of any
amounts advanced from time to time pursuant to the Credit Agreement.
777771.1
-17-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
HEMASURE INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President Finance and
Administration
FLEET NATIONAL BANK
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
777771.1
-18-
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF ________________
On this ____ day of September, 1998 before me appeared the above-named,
Xxxxx X. Xxxxxx, Senior Vice President, and acknowledged the foregoing
instrument to be the free act and deed of Hemasure Inc.
--------------------------------
Notary Public
My commission expires:
777771.1
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK, ss.
On this ____ day of September, 1998 before me appeared the above-named,
Xxxxxxxx X. Xxxxxxx, Vice President, and acknowledged the foregoing instrument
to be the free act and deed of Fleet National Bank.
---------------------------------
Notary Public
My commission expires:
777771.1
SCHEDULE A
PATENTS
[To be furnished by Pledgor]
777771.1
SCHEDULE B
TRADEMARKS & SERVICE MARKS
(including registrations and applications)
[To be furnished by Pledgor]
777771.1
SCHEDULE C
COPYRIGHTS
(including registrations and applications)
[To be furnished by Pledgor]
777771.1
SCHEDULE D
LIENS
[To be furnished by Pledgor]
777771.1
SCHEDULE E
REQUIRED CONSENTS AND LICENSES
[To be furnished by Pledgor]
777771.1
SCHEDULE F
CLAIMS, LITIGATION, ETC.
[To be furnished by Pledgor]
777771.1
