Execution Copy
SECURITY AGREEMENT
Dated as of October 16, 2001
between
VITA SPECIAL PURPOSE CORP.,
as Grantor,
and
▇▇▇▇ CAPITAL ROYALTY ACQUISITION FUND, L.P.,
as Grantee
TABLE OF CONTENTS
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Page
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Exhibits
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Exhibit A Form of Patent Security Agreement
Exhibit B Form of Trademark Security Agreement
Exhibit C Form of Copyright Security Agreement
Schedules
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Schedule I Locations of Certain Collateral
Schedule II Offices For Filing Financing Statements
Schedule III Patents and Trademarks
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SECURITY AGREEMENT
SECURITY AGREEMENT (as amended, supplemented or otherwise
modified from time to time, this "Security Agreement"), is dated as of October
16, 2001 and entered into between VITA SPECIAL PURPOSE CORP., a Delaware
corporation (the "Grantor") and ▇▇▇▇ CAPITAL ROYALTY ACQUISITION FUND, L.P., a
Delaware limited partnership (the "Grantee").
RECITALS
WHEREAS, Grantor, Grantee and Orthovita, Inc., a Pennsylvania
corporation ("Orthovita"), have entered into the Revenue Interests Assignment
Agreement, dated as of October 16, 2001 (as amended, modified or supplemented
from time to time, the "Assignment Agreement"); and
WHEREAS, it is a condition precedent to the payment of the
Closing Purchase Price Payment by Grantee under the Assignment Agreement that
Grantor shall have granted the security interests contemplated by this Security
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Grantor hereby agrees, for the
benefit of Grantee, as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Certain Terms.
-------------
The following terms (whether or not underscored) when used in
this Security Agreement, including its preamble and recitals, shall have the
following meanings:
"Account" shall have the meaning as provided in the UCC.
"Assignee Concentration Account" shall have the meaning set forth
in the Assignment Agreement.
"Assignor Concentration Account" shall have the meaning set forth
in the Assignment Agreement.
"Assignment Agreement" shall have the meaning set forth in the
recitals hereto.
"Bankruptcy Event" shall have the meaning set forth in the
Assignment Agreement.
"Collateral" shall have the meaning set forth in Section 2.1.
"Copyright Security Agreement" means the form of Copyright
Security Agreement that may be executed and delivered by Grantor to Grantee and
attached hereto as Exhibit C, as such agreement may be amended, supplemented or
otherwise modified from time to time.
"Event of Default" shall mean a Bankruptcy Event, or a failure by
Grantor to pay or cause to be paid the applicable repurchase price due to
Grantee under Section 5.07(a) or 5.07(c) of the Assignment Agreement.
"General Intangible" shall have the meaning as provided in the
UCC.
"Grantor" shall have the meaning set forth in the preamble
hereto.
"Instrument" shall have the meaning as provided in the UCC.
"Intellectual Property" shall have the meaning set forth in the
Assignment Agreement.
"Obligations" shall have the meaning set forth in the Assignment
Agreement.
"Patents" shall have the meaning set forth in the Assignment
Agreement.
"Patent License" means any written agreement now or hereafter in
existence granting to Grantor any right to use any invention on which a Patent
is in existence.
"Patent Security Agreement" means the Patent Security Agreement
executed and delivered by Grantor to Grantee and attached hereto as Exhibit A,
as such agreement may be amended, supplemented or otherwise modified from time
to time.
"Pledged Deposit Accounts" shall have the meaning set forth in
Section 2.1(i) hereof.
"Proceeds" shall have the meaning as provided in the UCC.
"Products" shall have the meaning set forth in the Assignment
Agreement.
"Receivables" mean the Royalty Interests and the Related
Receivables.
"Related Receivables" shall have the meaning set forth in Section
2.1(f).
"Security Agreement" shall have the meaning set forth in the
preamble hereto.
"Trademark Security Agreement" means the Trademark Security
Agreement executed and delivered by Grantor to Grantee and attached hereto as
Exhibit B, as such agreement may be amended, supplemented or otherwise modified
from time to time.
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"UCC" means the Uniform Commercial Code as in effect on the date
hereof in the State of New York, as amended from time to time, and any successor
statute; provided that if by reason of mandatory provision of law, the
perfection or the effect of perfection or non-perfection of the security
interest in the Collateral is governed by the Uniform Commercial Code of another
jurisdiction, "UCC" means the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provision hereof relating to such perfection or
effect of perfection or non-perfection.
Section 1.2. Assignment Agreement Definitions.
--------------------------------
Unless otherwise defined herein or the context otherwise
requires, capitalized terms used but not defined in this Security Agreement,
including its preamble and recitals, have the meanings provided in the
Assignment Agreement.
Section 1.3. UCC Definitions.
---------------
Unless otherwise defined herein or the context otherwise
requires, terms for which meanings are provided in the UCC are used in this
Security Agreement, including its preamble and recitals, with such meanings.
Section 1.4. Other Interpretive Provisions.
-----------------------------
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "hereof," "herein," "hereunder" and similar words
refer to this Security Agreement as a whole and not to any particular provision
of this Security Agreement; and subsection, Section, Schedule, and Exhibit
references are to this Security Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation".
(iii) The term "property" includes any kind of property
or asset, personal or mixed, tangible or intangible, other than real property.
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Security Agreement) and other contractual instruments
shall be deemed to include all subsequent amendments and other modifications
thereto, but only to the extent such amendments and other modifications are not
prohibited by the terms of any Transaction Document, and (ii) references to any
statute or regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing, supplementing, or
interpreting the statute or regulation.
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(e) The captions and headings of this Security Agreement are for
convenience of reference only and shall not affect the interpretation of this
Security Agreement.
ARTICLE II
SECURITY INTEREST
Section 2.1. Grant of Security.
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As collateral security for the prompt, full and faithful payment
and performance when due of the Obligations, Grantor hereby assigns, pledges,
transfers and grants to Grantee a continuing lien on and a security interest in
(subject to such limitations in enforcement set forth in Section 6.2) all of
Grantor's right, title, and interest in and to the following property, wherever
the same may be now or hereafter located, whether now owned or hereafter
existing or acquired (the "Collateral"):
(a) all Royalty Interests;
(b) all License Agreements (but only with respect to sales of
Products in the Territories);
(c) all Distribution Agreements (but only with respect to sales
of Products in the Territories);
(d) the Assignment Documents;
(e) all Intellectual Property;
(f) all Accounts, contract rights, payment intangibles,
Instruments, and General Intangibles, in each case, constituting, comprising,
evidencing or otherwise relating to any of the foregoing in this Section 2.1
(any and all such Accounts, contract rights, payment intangibles, Instruments,
and General Intangibles being the "Related Receivables");
(g) all books, records, data bases, and information, in each
case, specifically relating to and only to the extent relating to any of the
foregoing in this Section 2.1;
(h) all money now or at any time in the possession or under the
control of, or in transit to Grantee or Grantor relating to any of the foregoing
in this Section 2.1; and
(i) the Assignee Concentration Account and the Assignor
Concentration Account (collectively, the "Pledged Deposit Accounts"), all funds
on deposit in each such account, all investments arising out of such funds, all
claims thereunder or in connection therewith and special purpose subaccounts
maintained therein, and all monies and credit balances from time to time held in
the Pledged Deposit Accounts or such subaccounts; all notes, certificates of
deposit, deposit accounts, checks and other instruments from time to time
hereafter delivered to or otherwise possessed by the Grantor in substitution for
or in addition to any or all of the then existing items described in this
subsection (i); and all interest, dividends, cash,
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securities, rights, instruments and other property at any time and from time to
time received, receivable or otherwise distributed in respect of such accounts,
such funds, or such investments or received in exchange for any or all of the
items described in this subsection (i); and
(j) all products and Proceeds of and from any and all of the
foregoing Collateral, all proceeds which constitute property of the types
described in clauses (a) through (i) and, to the extent not otherwise included,
all payments under insurance (whether or not Grantee is the loss payee thereof),
including return premiums with respect thereto, or any indemnity, warranty, or
guaranty payable by reason of loss or damage to or otherwise with respect to any
of the foregoing Collateral.
Section 2.2. Continuing Security Interest.
----------------------------
(a) This Security Agreement shall create a continuing security
interest in the Collateral and shall:
(i) remain in full force and effect until the payment and
performance in full of all the Obligations;
(ii) be binding upon Grantor and its successors,
transferees and assigns; and
(iii) inure, together with the rights and remedies of
Grantee, to the benefit of Grantee and its successors and assigns.
(b) Grantor and Grantee intend that the transactions contemplated
by the Assignment Agreement be true sales of the Assigned Interests by Grantor
to Grantee, providing Grantee with the full benefits of ownership of the
Assigned Interests free and clear of any liens, and neither Grantor nor Grantee
intends the transactions contemplated hereby to be, or for any purpose to be
characterized as, a loan from Grantee to Grantor. If, however, notwithstanding
the intent of the parties the transactions contemplated by the Assignment
Agreement are deemed by any court of competent jurisdiction to constitute a loan
from Grantee to Grantor, Grantee and Grantor hereby agree that this Security
Agreement shall constitute the grant by Grantor of a continuing lien on and a
security interest in all of Grantor's right, title, and interest in and to the
Assigned Interests.
(c) Upon the payment and performance in full of the Obligations,
the security interest granted herein shall terminate and all rights to the
Collateral shall revert to Grantor. Upon any such termination, Grantee will, at
Grantor's sole expense, promptly execute and deliver to Grantor such instruments
and documents necessary and as Grantor shall reasonably request to evidence such
termination.
Section 2.3. Grantor Remains Liable.
----------------------
Anything herein to the contrary notwithstanding:
(a) Grantor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein and shall
perform all of its duties and obligations under
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such contracts and agreements to the same extent as if this Security Agreement
had not been executed;
(b) the exercise by Grantee of any of its rights and remedies
hereunder shall not release Grantor from any of its duties or obligations under
any such contracts or agreements included in the Collateral; and
(c) Grantee shall not have any obligation or liability under any
such contracts or agreements included in the Collateral by reason of this
Security Agreement, and Grantee shall not be obligated to perform or fulfill any
of the obligations or duties of Grantor thereunder or to take any action to
collect or (x) to make any inquiry as to the nature or sufficiency of any
payment Grantor may be entitled to receive thereunder; (y) present or file and
claim or (z) enforce any claim for payment assigned hereunder.
Section 2.4. Other Creditors.
---------------
Grantor and Grantee agree that, in the event Grantor grants to a
lender a security interest in or rights to any portion of collections from the
License Agreements and the Distribution Agreements which includes such
collections with respect to sales of the Products in the Territories, Grantee
agrees, and Grantor shall, under the terms of its agreements with such lender,
cause such lender to agree, that each of Grantee's and such lender's right to
enforce collections under such agreements shall be shared on a pari passu basis
based upon the rights granted to Grantee under the Security Agreement and the
right granted by Grantor to such lender.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Grantor represents and warrants to Grantee as of the date hereof
as follows:
Section 3.1. Location of Collateral, etc.
---------------------------
(a) On the date hereof, the place(s) of business and chief
executive office of Grantor and the office(s) where Grantor keeps its records
concerning the Receivables are located at the addresses set forth on Item A of
Schedule I.
(b) Grantor has no trade name.
(c) During the past five years, Grantor has not been known by any
name different from the one set forth on the signature page hereto, and Grantor
has not been the subject of any merger or other corporate reorganization.
(d) None of the Receivables is evidenced by a promissory note or
other instrument.
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Section 3.2. Ownership; No Liens.
-------------------
Grantor owns the Collateral free and clear of any Liens except
for the security interest created by this Security Agreement. No effective
security agreement, financing statement, assignment, equivalent security, lien
or other instrument similar in effect covering all or any part of the Collateral
is on file or of record in any public office, except such as may have been filed
in favor of Grantee relating to this Security Agreement.
Section 3.3. Validity.
--------
This Security Agreement creates a valid security interest in the
Collateral securing the payment and performance in full of the Obligations. Upon
the filing of appropriate financing statements in the applicable filing offices
in the jurisdictions listed in Schedule II, all filings, registrations and
recordings necessary or appropriate to create, preserve, protect and perfect the
first priority security interest granted by Grantor to Grantee in the Collateral
will have been accomplished and will create a perfected security interest
therein prior to the rights of all other Persons therein and subject to no other
Liens, except as set forth in Schedule 3.04 to the Assignment Agreement.
Section 3.4. Intellectual Property.
---------------------
The Patents and the trademarks listed in Schedule III constitute
all registered Intellectual Property owned or used by Grantor. The execution,
delivery and performance of this Security Agreement or the Assignment Agreement
by Grantor will not violate or cause a default under any of the Intellectual
Property or any material agreement in connection therewith. The Grantor further
represents and warrants as to those representations and warranties set forth in
Section 3.12 of the Assignment Agreement as if set forth in its entirety herein.
Section 3.5. Authorization, Approval.
-----------------------
No authorization, approval, or other action by, and no notice to
or filing with, any Government Authority or other Person is required either:
(a) for the grant by Grantor of the security interest granted
hereby or for the execution, delivery, and performance of this Security
Agreement by Grantor; or
(b) for the perfection of or exercise by Grantee of its rights
and remedies hereunder, other than (i) the filing of financing statements in the
offices listed in Item B of Schedule I, (ii) the filing of the Patent Security
Agreement and the Trademark Security Agreement with the U.S. Patent and
Trademark Office, and (iii) the establishment of the Pledged Deposit Accounts in
accordance with Section 5.10 of the Assignment Agreement.
Section 3.6. Enforceability.
--------------
This Security Agreement is the legally valid and binding
obligation of Grantor, enforceable against Grantor in accordance with its terms.
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ARTICLE IV
COVENANTS
Grantor hereby covenants and agrees that, so long as this
Security Agreement shall remain in effect, Grantor agrees to the following:
Section 4.1. As to Receivables.
-----------------
(a) Grantor shall keep its place(s) of business and its chief
executive office and the office(s) where it keeps its books and records
(including those concerning the Receivables) and all original copies of the
Distribution Agreements and the License Agreements located, in each case, at its
address specified in Item A of Schedule I, or, upon 30 days' prior written
notice to Grantee, at such other locations in a jurisdiction where all actions
required by the first sentence of Section 4.4 shall have been taken with respect
to the Receivables, the Distribution Agreements and the License Agreements; not
change its name or its state or place of incorporation or organization except
upon 30 days' prior written notice to Grantee; and hold and preserve such books
and records.
(b) Except as otherwise provided in this subsection (b), until an
Event of Default has occurred and is continuing, Grantor shall continue to
collect, at its own expense, all amounts due or to become due Grantor under the
Vita Licensing Agreements, the Distribution Agreements and the License
Agreements. In connection with such collections, provided no Event of Default
shall have occurred and be continuing, Grantor may take such action as Grantor
may deem necessary or advisable to enforce collections pursuant to the Vita SPC
License Agreement or the applicable Distribution Agreement or License Agreement.
At any time after an Event of Default has occurred and is continuing, Grantee
shall have the right to notify the account debtors or obligors under any
Receivables of the security interest of Grantee in such Receivables to Grantee
and to direct such account debtors or obligors to make payment to Grantee of any
amounts due or to become due thereunder and enforce collection of any of the
Receivables by suit or otherwise and surrender, release or exchange all or any
part thereof, or adjust, settle or compromise or extend or renew for any period
(whether or not longer than the original period) any indebtedness thereunder or
evidenced thereby. If an Event of Default has occurred and is continuing, upon
the request of Grantee, Grantor will, at its own expense, notify any parties
obligated on any of the Receivables to make payment to Grantee of any amounts
due or to become due thereunder, and in such event, Grantee is authorized to
endorse, in the name of Grantor, any item representing any payment on or other
proceeds of any of the Receivables.
(c) After an Event of Default has occurred and is continuing: (i)
all amounts and proceeds (including Instruments) received by Grantor in respect
of any Receivables shall be received in trust for the benefit of Grantee
hereunder, shall be segregated from other funds of Grantor, and shall be
forthwith paid over to Grantee in the same form as so received (with any
necessary endorsements) to be held as cash collateral and applied as provided by
this Security Agreement; and (ii) subject to Section 5.10 of the Assignment
Agreement, Grantor shall not adjust, settle, or compromise the amount or payment
of any Receivable, or release wholly or partly any account debtor or obligor
thereof, or allow any credit or discount thereon.
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(d) After the occurrence and during the continuance of an Event
of Default, (A) Grantee may in its own name or in the name of others communicate
with account debtors in order to verify with them to Grantee's reasonable
satisfaction the existence, amount and terms of any Receivables and (B) Grantee
shall have the right, at Grantor's expense, to make test verifications of the
Receivables in any reasonable manner and through any medium that it considers
advisable, and Grantor agrees to furnish all such assistance as Grantee may
reasonably require in connection therewith.
Section 4.2. [Intentionally omitted.]
Section 4.3. Intellectual Property.
---------------------
Grantor shall concurrently herewith deliver to Grantee the Patent
Security Agreement, the Trademark Security Agreement and all other documents,
instruments and other items as may be necessary for Grantee to file such
agreements with the United States Patent and Trademark Office and any similar
domestic or foreign office, department or agency. If, before the Obligations are
paid in full, Grantor obtains any new Intellectual Property or rights thereto or
becomes entitled to the benefit of any Intellectual Property not listed on the
schedules to the Patent Security Agreement or the Trademark Security Agreement,
Grantor shall give to Grantee prompt written notice thereof, and shall execute
and deliver to Grantee a new Patent Security Agreement, Trademark Security
Agreement and/or Copyright Security Agreement (each, an "Intellectual Property
Security Agreement"), as applicable, in the forms attached hereto as Exhibits A,
B and C, respectively, and all other documents, instruments and other items as
may be necessary for Grantee to record its security interest in any such new
Intellectual Property with the United States Patent and Trademark Office, the
United States Copyright office and any similar domestic or foreign office,
department or agency. All registrations and applications for registration of
Intellectual Property shall be scheduled in recordable form in the applicable
Intellectual Property Security Agreement. Grantor shall: (a) preserve and
maintain all rights in the Intellectual Property; and (b) upon and after the
occurrence of an Event of Default, use its best efforts to obtain any consents,
waivers or agreements necessary to enable Grantor to exercise its remedies with
respect to the Intellectual Property in the Territories. Grantor shall not
abandon any right to file a patent or trademark application relating to the
Intellectual Property in the Territories nor shall Grantor abandon any pending
patent or trademark application or patent, trademark or copyright (including
without limitation any Patents or Patent Licenses) without the prior written
consent of Grantee.
Section 4.4. Transfers and Other Liens.
-------------------------
Except as otherwise permitted by the Assignment Agreement,
Grantor shall not:
(a) grant a security interest in (x) the Assigned Interests, (y)
the Royalty Interests or (z) the other Collateral described in the Security
Agreement;
(b) sell, assign (by operation of law or otherwise), lease,
transfer or otherwise dispose of any of, or grant any Person an option with
respect to, the Collateral; or
(c) make any loans, dividends or distributions to Orthovita or
Vita Licensing so long as any default in any payment obligations by Orthovita or
Vita Licensing under the
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Assignment Agreement or any other Transaction Document has occurred and is
continuing. So long as no such default exists or is continuing, Grantor shall be
permitted to make loans, dividends and other distributions to Orthovita or Vita
Licensing without restriction pursuant hereto.
Section 4.5. Further Assurances.
------------------
Grantor agrees that, from time to time at its own cost and
expense, Grantor will promptly execute and deliver and will cause to be executed
and delivered all further instruments, assignments, notices, agreements and
documents, including, without limitation, financing and continuation statements,
and will take all further action and will cause all further action to be taken,
that may be reasonably necessary or desirable, or that Grantee may reasonably
request, in order to create, preserve, perfect and protect any security interest
granted or purported to be granted hereby and the priority thereof or to enable
Grantee to exercise and enforce its rights and remedies hereunder with respect
to any Collateral. Without limiting the generality of the foregoing Grantor
will:
(a) if any Collateral shall be evidenced by a promissory note or
other instrument or negotiable document, deliver and pledge to Grantee hereunder
such promissory note, instrument or negotiable document duly endorsed and
accompanied by duly executed instruments of transfer or assignment, all in form
and substance reasonably satisfactory to Grantee, except any such document
evidencing or relating to transactions between Grantor and Orthovita;
(b) execute and file, record or register such financing or
continuation statements, or amendments thereto, and such other instruments,
assignments or notices, as may be necessary or desirable, or as Grantee may
request, in order to create, preserve, perfect and protect the security
interests and other rights granted or purported to be granted to Grantee, except
any such document evidencing or relating to transactions between Grantor and
Orthovita;
(c) furnish to Grantee, from time to time, statements and
schedules further identifying and describing the Collateral and such other
reports in connection with the Collateral as Grantee may reasonably request, and
all in reasonable detail and in accordance with the terms of the Assignment
Agreement; and
(d) at Grantee's request, appear in and defend any action or
proceeding that may affect Grantor's title to or Grantee's security interest in
the Collateral.
With respect to the foregoing and the grant of the security interest hereunder,
Grantor hereby authorizes Grantee to file one or more financing or continuation
statements, and amendments thereto, relative to all or any part of the
Collateral without the signature of Grantor where permitted by law. A carbon,
photographic, or other reproduction of this Security Agreement or any financing
statement covering the Collateral or any part thereof shall be sufficient as a
financing statement where permitted by law.
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Section 4.6. General Covenants.
-----------------
Without limiting any of the foregoing covenants, Grantor agrees
(a) not to use or permit any Collateral to be used unlawfully or in material
violation of any provision of the Assignment Agreement, this Security Agreement,
any other Transaction Document or any applicable statute, regulation or
ordinance or any policy of insurance covering the Collateral; and (b) to pay
promptly when due all taxes, assessments, charges, encumbrances and Liens now or
hereafter imposed upon or affecting any Collateral.
ARTICLE V
RIGHTS AND DUTIES OF GRANTEE
Section 5.1. Grantee Appointed Attorney-in-Fact.
----------------------------------
Grantor hereby irrevocably appoints Grantee (and all Persons
designated for that purpose) as Grantor's true and lawful attorney-in-fact, with
full authority and power in the place and stead of Grantor and in the name of
Grantor, Grantee or otherwise, from time to time in Grantee's discretion from
and after the occurrence and during the continuation of an Event of Default to
take any appropriate action and to execute any instrument that Grantee may deem
reasonably necessary or advisable to accomplish the purposes of this Security
Agreement (but Grantee shall not be obligated to and shall have no liability to
Grantor or any third party for failure so to do) including, without limitation:
(a) to ask, demand, collect, enforce, ▇▇▇ for, recover,
compromise, receive, and give acquittance and receipts for moneys due and to
become due under or in respect of any of the Collateral;
(b) to receive, endorse, and collect any checks, drafts or other
instruments, documents, and chattel paper in connection with clause (a) above;
(c) to file any claims or take any action or institute any
proceedings (or to settle, adjust or compromise any such proceeding) that
Grantee may deem necessary or desirable for the collection of any of the
Collateral or otherwise to enforce the rights of Grantee with respect to any of
the Collateral;
(d) to perform the affirmative obligations of Grantor hereunder
(including all obligations of Grantor pursuant to Section 4.4);
(e) to execute and deliver for and on behalf of Grantor any and
all instruments, documents, agreements, and other writings necessary or
advisable for the exercise on behalf of Grantor of any rights, benefits or
options created or existing under or pursuant to the Collateral; and
(f) to execute endorsements, assignments, or other instruments of
conveyance and transfer.
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Grantor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section 5.1 is irrevocable and coupled with an
interest.
Section 5.2. Grantee May Perform.
-------------------
If Grantor fails to perform any agreement contained herein,
Grantee may itself (but shall not be obliged to) perform, or cause performance
of, such agreement, provided that Grantee shall in any event first have given
Grantor written notice of its intent to do the same and Grantor shall not have,
within 30 days of such notice (or such shorter period as Grantee may reasonably
determine is necessary in order to preserve the benefits of this Security
Agreement with respect to any material portion of the Collateral), paid such
claim or obtained to Grantee's satisfaction the release of the claim or Lien to
which such notice relates. Grantor agrees to reimburse Grantee upon demand for
any costs and expenses, including, without limitation, reasonable attorneys'
fees, Grantee incurs while acting as Grantor's attorney-in-fact hereunder, all
of which costs and expenses are included in the Obligations secured hereby.
Section 5.3. Limitations on Duties of Grantee.
--------------------------------
Grantee shall be obligated to perform such duties and only such
duties as are specifically set forth in this Security Agreement, and no implied
covenants or obligations shall be read into this Security Agreement against
Grantee. If an Event of Default has occurred and is continuing, Grantee shall
exercise the rights and powers vested in it by this Security Agreement, and
shall not be liable (except for its gross negligence or willful misconduct) with
respect to any action taken by it, or omitted to be taken by it, in accordance
with, and subject to the limitations contained in, the Assignment Agreement.
Section 5.4. Reasonable Care.
---------------
It is understood and agreed between the parties hereto that
Grantee's duty with respect to the custody, safekeeping, and physical
preservation of the Collateral in its possession should be to deal with it in
the same manner as Grantee deals with similar property for its own account;
provided, however, that Grantee shall not be required to make any presentment,
demand, or protest, or give any notice, and need not take any action to preserve
any rights against any other Person with respect to the Collateral.
ARTICLE VI
REMEDIES
Section 6.1. Certain Remedies.
----------------
If any Event of Default shall have occurred and is continuing:
(a) Grantee may exercise in respect of the Collateral, in
addition to other rights available to it at law or in equity or otherwise, all
the rights and remedies of a secured party on default under the UCC (whether or
not the UCC applies to the affected Collateral) and also may (i) require Grantor
to, and Grantor hereby agrees that it will, at its expense and upon request of
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Grantee forthwith, assemble all or part of the Collateral as directed by Grantee
and make it available to Grantee at a place to be designated by Grantee that is
reasonably convenient to both parties, (ii) exercise any and all rights and
remedies of Grantor under or in connection with the Collateral, (iii) withdraw
all monies, securities and other property in the Pledged Deposit Accounts for
application to the Obligations, (iv) foreclose or otherwise enforce Grantee's
security interest in any manner permitted by law or provided for in this
Security Agreement, (v) without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or private sale,
at any place or places for cash, on credit, or for future delivery, and upon
such other terms as Grantee may deem commercially reasonable, (vi) recover from
Grantor all costs and expenses, including, without limitation, reasonable
attorneys' fees, incurred or paid by Grantee in exercising any right, power,
privilege or remedy provided by this Security Agreement or by law, (vii) without
notice or demand of legal process, all of which are hereby expressly waived by
Grantor, enter into property where any Collateral is located and take possession
thereof, and (viii) prior to the disposition of the Collateral, prepare it for
disposition in any manner and to the extent Grantee deems appropriate; provided,
however, that notwithstanding the foregoing to the contrary, Grantee may sell or
otherwise dispose the Collateral or any portion thereof in its then condition
without any preparation or processing. Grantor agrees that, to the extent notice
of sale shall be required by law, at least ten (10) days' prior notice to
Grantor of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. Grantee
shall not be obligated to make any sale of Collateral regardless of notice of
sale having been given. Grantee may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. Upon any sale or other disposition pursuant to this Security
Agreement, Grantee shall have the right to deliver, assign and transfer to
grantee thereof the Collateral or portion thereof and transfer to grantee
thereof the Collateral or portion thereof so sold or disposed of. Each grantee
at any such sale or other disposition (including Grantee) shall hold the
Collateral free from any claim or right of whatever kind, including any equity
or right of redemption of Grantor and Grantor specifically waives (to the extent
permitted by law) all rights of redemption, stay or appraisal which it has or
may have under any rule of law or statute now existing or hereafter adopted.
(b) All cash proceeds received by Grantee in respect of any sale
of, collection from, or other realization upon all or any part of the Collateral
shall be applied: first, to all costs, fees and expenses incurred by Grantee;
and second, to the Obligations. If any non-cash proceeds are received in
connection with any sale of Collateral, Grantee shall apply such non-cash
proceeds to the Obligations. Any surplus of such cash, cash proceeds or non-cash
proceeds held by Grantee after payment in full of all the Obligations shall be
paid over to Grantor or to whomsoever may be lawfully entitled to receive such
surplus.
13
Section 6.2. Transfer of Title. Notwithstanding anything to the contrary, to the
-----------------
extent title in or to the Intellectual Property is transferred to a third party,
the third party shall take its rights in the Intellectual Property subject to
the obligations and duties of: (i) Vita Licensing under the Vita License
Agreement and (ii) and Grantor under the Vita SPC Patent License Agreement and
the Vita SPC Trademark License Agreement.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1. Amendments.
----------
No amendment, modification or waiver of any provision of this
Security Agreement or the Assignment Agreement, and no consent to any departure
by Grantor herefrom shall in any event be effective unless the same shall be in
writing and signed by Grantee, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
Section 7.2. Release of Collateral.
---------------------
If any of the Collateral shall be sold, transferred, or otherwise
disposed of by Grantor in a transaction not expressly prohibited by the
Assignment Agreement, then Grantee shall, at Grantor's written request, promptly
execute and deliver to Grantor (at the sole cost and expense of Grantor) such
instruments or documents necessary and as Grantor shall reasonably request to
release the Liens created hereby on such Collateral, including any necessary UCC
amendment, termination statement or partial termination statement.
Section 7.3. Notices.
-------
All notices and other communications shall be given as set forth
in Section 8.03 of the Assignment Agreement.
Section 7.4. Waiver; Cumulative Remedies.
---------------------------
(a) No failure to exercise and no delay in the exercise, on the
part of Grantee, of any right, remedy, power, or privilege hereunder and no
course of dealing with respect thereto shall impair such right, remedy, power or
privilege or be construed to or operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof, or the exercise of any other
right, remedy, power or privilege.
(b) Grantor waives any right to require Grantee to proceed
against any Person or to exhaust any Collateral or to pursue any remedy in such
Grantee's power.
(c) The rights, powers and remedies of Grantee under this
Security Agreement shall be in addition to all rights, powers and remedies given
to Grantee by virtue of any statute or rule of law, the Assignment Agreement or
any other agreement, all of which rights, powers and
14
remedies shall be cumulative and may be exercised successively or concurrently
without impairing Grantee's security interest in the Collateral.
Section 7.5. Successors and Assigns.
----------------------
The provisions of this Security Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, except that Grantor may not assign or transfer any of its rights or
obligations under this Security Agreement without the prior written consent of
Grantee. Grantee may assign without restriction (i) its rights to receive any
and all payments due hereunder, (ii) any rights hereunder assigned to a special
purpose entity in connection with a securitization of the interests of the
Grantee herein, and (iii) any rights hereunder to an Affiliate of Grantee.
Section 7.6. Counterparts.
------------
This Security Agreement may be executed in any number of separate
counterparts, each of which, when so executed, shall be deemed an original, and
all of said counterparts taken together shall be deemed to constitute but one
and the same instrument.
Section 7.7. Severability.
------------
The illegality or unenforceability of any provision of this
Security Agreement or any instrument or agreement required hereunder shall not
in any way affect or impair the legality or enforceability of the remaining
provisions of this Security Agreement or any instrument or agreement required
hereunder.
Section 7.8. Governing Law and Jurisdiction.
------------------------------
(a) THIS SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
ITS CONFLICTS OF LAW PRINCIPLES).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS SECURITY
AGREEMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION
IN ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇. BY EXECUTION AND DELIVERY OF THIS
SECURITY AGREEMENT, GRANTOR HEREBY IRREVOCABLY CONSENTS TO AND ACCEPTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY THE
NON-EXCLUSIVE JURISDICTION OF SUCH COURTS. GRANTOR HEREBY FURTHER IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
SECURITY AGREEMENT OR ANY DOCUMENT RELATED HERETO.
15
Section 7.9. Waiver of Jury Trial.
--------------------
EACH OF GRANTOR AND GRANTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS SECURITY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS SECURITY AGREEMENT.
[Signature page follows]
16
IN WITNESS WHEREOF, Grantor and Grantee have caused this Security
Agreement to be duly executed and delivered by their respective duly authorized
officers as of the date first above written.
GRANTOR: VITA SPECIAL PURPOSE CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
GRANTEE: ▇▇▇▇ CAPITAL ROYALTY ACQUISITION FUND, L.P.
By: ▇▇▇▇ Capital Management, LLC,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, M.D.
Title: Managing Member
[SIGNATURE PAGE TO SECURITY AGREEMENT]
EXHIBIT A
TO SECURITY AGREEMENT
AGREEMENT
(Patent)
This Agreement (Patent) (this "Agreement"), dated as of October 16,
2001, is made by Vita Special Purpose Corp., a Delaware corporation (the
"Grantor"), in favor of ▇▇▇▇ Capital Royalty Acquisition Fund, L.P., a Delaware
limited partnership (the "Grantee").
RECITALS
Pursuant to the terms of that certain Security Agreement, dated as of
October 16, 2001 (as may be amended, extended and replaced from time to time,
the "Security Agreement"), made by the Grantor in favor of the Grantee, the
Grantor granted the Grantee a security interest in all of the Grantor's patents,
trademarks, copyrights and other intellectual property and agreed to execute and
deliver certain supplemental documents, including, without limitation, this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the Grantor agrees, for the benefit of the Grantee
as follows:
1. Definitions
Unless otherwise defined herein or the context otherwise requires, terms
used in this Agreement, including its preamble and recitals, have the meanings
provided in the Security Agreement.
2. Grant of Security Interest
As collateral security for the prompt and complete payment and
performance of the Obligations, the Grantor hereby assigns and pledges to the
Grantee and hereby grants to the Grantee a security interest in, all of the
Grantor's right, title and interest in and to the following, whether now or
hereafter existing or acquired (the "Patent Collateral"):
(a) all Patents, including without limitation those listed in Item A
of Attachment 1 hereto;
(b) all Patent licenses, including without limitation each Patent
license referred to in Item B of Attachment 1 hereto
(collectively, the "Patent Licenses");
(c) all reissues, divisions, continuations, continuations-in-part,
extensions, renewals and reexaminations of any of the items
described in clauses (a) and (b) above ; and
(d) all proceeds of, and rights associated with, any of the foregoing
(including license royalties and proceeds of infringement suits),
the right to ▇▇▇ third parties for past, present or future
infringements of any Patent and for breach or enforcement of any
Patent License and all rights corresponding thereto throughout
the world.
1
3. Security Agreement
This Agreement has been executed and delivered by the Grantor for the
purpose of registering the security interest of the Grantee in the Patent
Collateral with the United States Patent and Trademark Office and Canadian
Patent and Trademark Office. The security interest granted hereby has been
granted as a supplement to, and not in limitation of, the security interest
granted to the Grantee under the Security Agreement. The Security Agreement (and
all rights and remedies of the Grantee thereunder) shall remain in full force
and effect in accordance with its terms.
4. Release of Security Interest
Upon the indefeasible payment in full of the Obligations then due and
payable, the security interest granted herein shall automatically terminate, and
all rights to the Patent Collateral shall revert to the Grantor. Upon any such
termination, the Grantee shall, at the Grantor's expense, execute and deliver to
the Grantor all instruments and other documents as Grantor shall reasonably
request to release the Lien upon the Patent Collateral which has been granted
hereunder to evidence such termination.
5. Acknowledgment
The Grantor does hereby further acknowledge and affirm that the rights
and remedies of the Grantee with respect to the security interest in the Patent
Collateral granted hereby are more fully set forth in the Security Agreement,
the terms and provisions of which (including the remedies provided for therein)
are incorporated by reference herein as if fully set forth herein.
6. Transfer of Title.
Notwithstanding anything to the contrary, to the extent title in or to
the Patent Collateral is transferred to a third party, the third party shall
take its rights in the Patent Collateral subject to the obligations and duties
of: (i) Vita Licensing under the Vita License Agreement and (ii) and Grantor
under the Vita SPC Patent License Agreement.
7. Counterparts
This Agreement may be executed by the parties hereto in several
counterparts, each of which shall be deemed to be an original, and all of which
shall constitute together but one and the same agreement.
[Signature page follows]
2
IN WITNESS WHEREOF, the Grantor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the day
and year first above written.
VITA SPECIAL PURPOSE CORP.
By: ______________________________________
Name:
Title:
Accepted and Acknowledged By:
▇▇▇▇ CAPITAL ROYALTY ACQUISITION FUND
By: ▇▇▇▇ Capital Management, LLC,
its General Partner
By: ____________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, M.D.
Title: Managing Member
ACKNOWLEDGMENT OF GRANTOR
STATE OF ___________________ )
) ss.
COUNTY OF__________________ )
On this ____ day of _____________, ____ before me personally appeared
____________________, proved to me on the basis of satisfactory evidence to be
the person who executed the foregoing instrument on behalf of
__________________________________ , who being by me duly sworn did depose and
say that he is an authorized officer of said corporation, that the said
instrument was signed on behalf of said corporation authorized by its Board of
Directors and that he acknowledged said instrument to be the free act and deed
of said corporation.
-----------------------------
{seal} Notary Public
[Signature page to Agreement (Patent)]
3
EXHIBIT B
TO SECURITY AGREEMENT
AGREEMENT
(Trademark)
This Agreement (Trademark) (this "Agreement"), dated as of October 16,
2001, is made by Vita Special Purpose Corporation, a Delaware corporation, (the
"Grantor"), in favor of ▇▇▇▇ Capital Royalty Acquisition Fund, L.P., a Delaware
limited partnership (the "Grantee").
RECITALS
Pursuant to the terms of that certain Security Agreement, dated as of
October 16, 2001 (as may be amended, extended and replaced from time to time,
the "Security Agreement"), made by the Grantor in favor of the Grantee, the
Grantor granted the Grantee a security interest in all of the Grantor's patents,
trademarks, copyrights and other intellectual property and agreed to execute and
deliver certain supplemental documents, including, without limitation, this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt
of which is hereby acknowledged, the Grantor agrees, for the benefit of the
Grantee, as follows:
1. Definitions
Unless otherwise defined herein or the context otherwise
requires, terms used in this Agreement, including its preamble and recitals,
have the meanings provided in the Security Agreement.
2. Grant of Security Interest
As collateral security for the prompt and complete payment and
performance of the Obligations, the Grantor hereby assigns and pledges to the
Grantee and hereby grants to the Grantee a security interest in, all of the
Grantor's right, title and interest in and to the following, whether now or
hereafter existing or acquired (the "Trademark Collateral"):
(a) all trademarks and service marks of the Grantor related to the
Products in the Territories, including all registrations and
recordings thereof, and all applications for registrations
thereof, including without limitation those registrations and
applications for registration of trademarks and service marks
that are listed in Item A of Attachment 1 hereto (collectively,
the "Trademarks");
(b) all licenses of Trademarks to or by Grantor, including without
limitation each Trademark license referred to in Item B of
Attachment 1 hereto (collectively, the "Trademark Licenses");
(c) all reissues, extensions or renewals of any of the items
described in clauses (a) and (b) above;
1
(d) all of the goodwill of the business connected with the use of,
and symbolized by the items described in, clauses (a) and (b)
above; and
(e) all proceeds of, and rights associated with, any of the
foregoing, including any claim by the Grantor against third
parties for past, present, or future infringement or dilution of
any Trademark or Trademark License or for any injury to the
goodwill associated with the use of any such Trademark or for
breach or enforcement of any Trademark License.
3. Security Agreement
This Agreement has been executed and delivered by the Grantor for
the purpose of registering the security interest of the Grantee in the Trademark
Collateral with the United States Patent and Trademark Office and Canadian
Patent and Trademark Office. The security interest granted hereby has been
granted as a supplement to, and not in limitation of, the security interest
granted to the Grantee under the Security Agreement. The Security Agreement (and
all rights and remedies of the Grantee thereunder) shall remain in full force
and effect in accordance with its terms.
4. Release of Security Interest
Upon the indefeasible payment in full of the Obligations then due
and payable, the security interest granted herein shall automatically terminate,
and all rights to the Trademark Collateral shall revert to the Grantor. Upon any
such termination, the Grantee shall, at the Grantor's expense, execute and
deliver to the Grantor all instruments and other documents as Grantor shall
reasonably request to release the Lien upon the Trademark Collateral which has
been granted hereunder to evidence such termination.
5. Acknowledgment
The Grantor does hereby further acknowledge and affirm that the
rights and remedies of the Grantee with respect to the security interest in the
Trademark Collateral granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which (including the remedies provided
for therein) are incorporated by reference herein as if fully set forth herein.
6. Transfer of Title
Notwithstanding anything to the contrary, to the extent title in
or to the Trademark Collateral is transferred to a third party, the third party
shall take its rights in the Trademark Collateral subject to the obligations and
duties of: (i) Vita Licensing under the Vita License Agreement and (ii) and
Grantor under the Vita SPC Trademark License Agreement.
7. Counterparts
This Agreement may be executed by the parties hereto in several
counterparts, each of which shall be deemed to be an original, and all of which
shall constitute together but one and the same agreement.
2
[Signature page follows]
3
IN WITNESS WHEREOF, the Grantor has caused this Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
day and year first above written.
VITA SPECIAL PURPOSE CORP.
By: ______________________________________
Name:
Title:
Accepted and Acknowledged By:
▇▇▇▇ CAPITAL ROYALTY ACQUISITION FUND
By: ▇▇▇▇ Capital Management, LLC,
its General Partner
By: ____________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, M.D.
Title: Managing Member
ACKNOWLEDGMENT OF GRANTOR
STATE OF ___________________ )
) ss.
COUNTY OF__________________ )
On this __ day of ___________, ____ before me personally appeared
____________________, proved to me on the basis of satisfactory evidence to be
the person who executed the foregoing instrument on behalf of
_________________________, who being by me duly sworn did depose and say that he
is an authorized officer of said corporation, that the said instrument was
signed on behalf of said corporation authorized by its Board of Directors and
that he acknowledged said instrument to be the free act and deed of said
corporation.
_____________________________
{seal} Notary Public
[Signature page to Agreement (Trademark)]
4
EXHIBIT C
TO SECURITY AGREEMENT
AGREEMENT
(Copyright)
This Agreement (Copyright) (this "Agreement"), dated as of October 16,
2001, is made by Vita Special Purpose Corp, a Delaware corporation (the
"Grantor"), in favor of ▇▇▇▇ Capital Royalty Acquisition Fund, L.P., a Delaware
limited partnership (the "Grantee").
RECITALS
Pursuant to the terms of that certain Security Agreement, dated as of
October 16, 2001 (as may be amended, extended and replaced from time to time,
the "Security Agreement"), made by the Grantor in favor of the Grantee, the
Grantor granted the Grantee a security interest in all of the Grantor's patents,
trademarks, copyrights and other intellectual property and agreed to execute and
deliver certain supplemental documents, including, without limitation, this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt
of which is hereby acknowledged, the Grantor agrees, for the benefit of the
Grantee as follows:
1. Definitions
Unless otherwise defined herein or the context otherwise
requires, terms used in this Agreement, including its preamble and recitals,
have the meanings provided in the Security Agreement.
2. Grant of Security Interest
As collateral security for the prompt and complete payment and
performance of the Obligations, the Grantor hereby assigns and pledges to the
Grantee and hereby grants to the Grantee a security interest in, all of the
Grantor's right, title and interest in and to the following, whether now or
hereafter existing or acquired (the "Copyright Collateral"):
(a) all copyrights and mask works of the Grantor and all
registrations and applications for registration of copyrights and
mask work in the Territories, whether pending or in preparation,
including without limitation those listed in Item A of Attachment
1 hereto (collectively, the "Copyrights");
(b) all licenses of Copyrights to or by Grantor, including without
limitation each Copyright license referred to in Item B of
Attachment 1 hereto (collectively, the "Copyright Licenses");
(c) all reissues, extensions or renewals of, and amendments to, any
of the items described in clauses (a) and (b); and
(d) all proceeds of, and rights associated with, any of the foregoing
(including without limitation license royalties and proceeds of
infringement suits), the right to ▇▇▇ third parties for past,
present or future infringements of any Copyright and
5
for breach or enforcement of any Copyright License and all rights
corresponding thereto throughout the world.
3. Security Agreement
This Agreement has been executed and delivered by the Grantor for
the purpose of registering the security interest of the Grantee in the Copyright
Collateral with the United States Copyright Office and the Canadian Copyright
Office. The security interest granted hereby has been granted as a supplement
to, and not in limitation of, the security interest granted to the Grantee under
the Security Agreement. The Security Agreement (and all rights and remedies of
the Grantee thereunder) shall remain in full force and effect in accordance with
its terms.
4. Release of Security Interest
Upon the indefeasible payment in full of the Obligations then due
and payable, the security interest granted herein shall automatically terminate,
and all rights to the Copyright Collateral shall revert to the Grantor. Upon any
such termination, the Grantee shall, at the Grantor's expense, execute and
deliver to the Grantor all instruments and other documents as Grantor shall
reasonably request to release the Lien upon the Copyright Collateral which has
been granted hereunder to evidence such termination.
5. Acknowledgment
The Grantor does hereby further acknowledge and affirm that the
rights and remedies of the Grantee with respect to the security interest in the
Copyright Collateral granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which (including the remedies provided
for therein) are incorporated by reference herein as if fully set forth herein.
6. Transfer of Title
Notwithstanding anything to the contrary, to the extent title in
or to the Copyright Collateral is transferred to a third party, the third party
shall take its rights in the Copyright Collateral subject to the obligations and
duties of: (i) Vita Licensing under the Vita License Agreement and (ii) and
Grantor under the Vita SPC License Agreement.
7. Counterparts
This Agreement may be executed by the parties hereto in several
counterparts, each of which shall be deemed to be an original, and all of which
shall constitute together but one and the same agreement.
[Signature page follows]
6
IN WITNESS WHEREOF, the Grantor has caused this Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
day and year first above written.
VITA SPECIAL PURPOSE CORP.
By: ______________________________________
Name:
Title:
Accepted and Acknowledged By:
▇▇▇▇ CAPITAL ROYALTY ACQUISITION FUND
By: ▇▇▇▇ Capital Management, LLC,
its General Partner
By: ____________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, M.D.
Title: Managing Member
ACKNOWLEDGMENT OF GRANTOR
STATE OF ___________________ )
) ss.
COUNTY OF__________________ )
On this __ day of ___________, ____ before me personally appeared
____________________, proved to me on the basis of satisfactory evidence to be
the person who executed the foregoing instrument on behalf of
___________________________, who being by me duly sworn did depose and say that
he is an authorized officer of said corporation, that the said instrument was
signed on behalf of said corporation authorized by its Board of Directors and
that he acknowledged said instrument to be the free act and deed of said
corporation.
_____________________________
{seal} Notary Public
[Signature page to Agreement (Copyright)]
7