SECURITY AND PLEDGE AGREEMENT
THIS SECURITY AND PLEDGE AGREEMENT, dated as of November 12, 1998
("Agreement"), is made by NORTH AMERICAN VACCINE, INC., a Canadian corporation
("▇▇▇▇" or "Pledgor"), in favor of BANKERS TRUST COMPANY, as trustee (the
"Trustee") for the holders (the "Holders") of the Securities(as defined herein).
R E C I T A L S
Pledgor and the Trustee have entered into an indenture dated as of
November 12, 1998 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Indenture"), pursuant to which the Pledgor is
issuing on the date hereof $25,000,000 in aggregate principal amount at maturity
of its 4.5% Secured Convertible Notes due 2003 (the "Securities"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings given
to such terms in the Indenture.
It is a condition precedent to the purchase of the Securities by the
Holders that Pledgor shall have granted the assignment and security interest and
made the pledge and assignment contemplated by this Agreement.
Unless otherwise defined in this Agreement, terms defined in Article 9 of
the Uniform Commercial Code in effect in the State of Maryland (the "Code") are
used in this Agreement as such terms are defined there.
NOW THEREFORE, in consideration of the premises, and in order to induce
the Holders to purchase the Notes, the Pledgor hereby agrees with the Trustee
for its benefit and the ratable benefit of the Holders as follows:
SECTION 1. Pledge and Security Interest.
Pledgor hereby assigns and pledges to the Trustee for its benefit and for
the ratable benefit of the Holders, and hereby grants to the Trustee for its
benefit and for the ratable benefit of the Holders, a continuing security
interest in all of its right, title and interest in the following collateral
owned by the Pledgor (collectively, the "Collateral"):
(i) The equipment and related assets more particularly described on
Annex A hereto ("Equipment").
(ii) The United States patent more particularly described on Annex B
hereto ("Patent").
SECTION 2. Security for Obligations.
(a) This Agreement secures the payment and performance when due (whether
for principal, interest, fees, expenses or otherwise, at stated maturity, by
acceleration or otherwise) of the obligations of the Pledgor under the Indenture
or under this Agreement (the "Secured Obligations").
(b) The Pledgor and the Holders, by such Holders' acceptance of the
Securities, hereby confirm that it is the intention of all such parties that the
pledge contemplated by this Agreement not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law (as defined in the Indenture), the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar federal or state law to the extent applicable to this Agreement. To
effectuate the foregoing intention, the Holders and the Pledgor hereby
irrevocably agree that the obligations of the Pledgor under this Agreement shall
be limited to the maximum amount as will, after giving effect to such maximum
amount and all other contingent and fixed liabilities of the Pledgor that are
relevant under such laws, result in the obligations of the Pledgor under this
Agreement not constituting a fraudulent transfer or conveyance
(c) Without limiting the generality of the foregoing, this Agreement
secures the payment of all amounts that constitute part of the Secured
Obligations and would be owed by Pledgor to the Holders under the Indenture and
the Securities but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar proceeding involving
the Pledgor.
SECTION 3. Delivery of Collateral.
All certificates or instruments representing or evidencing any and
all of the Collateral shall be delivered to and held by or on behalf of the
Trustee pursuant hereto and shall be in suitable form for transfer by delivery,
or shall be accompanied by duly executed instruments of transfer or assignment
in blank, all in form and substance satisfactory to the Trustee. The Trustee
shall have the right, at any time in its discretion and without notice to
Pledgor after the occurrence of an Event of Default, to transfer to or to
register in the name of the Trustee or any of its nominees any or all of the
Collateral.
SECTION 4. Representations and Warranties.
(a) Pledgor represents and warrants as follows:
(i) The execution, delivery and performance by Pledgor of this
Agreement are within Pledgor's corporate powers, have been duly authorized by
all necessary corporate action, and do not contravene, or constitute a default
under, any provision of applicable law or regulation or of the certificate of
incorporation or by-laws of Pledgor or of any agreement, judgment, injunction,
order, decree or other instrument, binding upon Pledgor or result in the
creation or imposition of any Lien on any assets of Pledgor, except for the
security interests granted under this Agreement.
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(ii) This Agreement creates a valid and perfected first priority
security interest in the Collateral (subject in all instances to the interests
of landlords' in the Equipment as provided in related leasehold agreements)
securing the payment of the Secured Obligations. All filings and other actions
necessary or desirable to perfect and protect the foregoing security interest
have been duly taken by the Pledgor.
(iii) Pledgor is, and at the time of delivery of any Collateral to
the Trustee pursuant to Section 3 of this Agreement will be, the legal and
beneficial owner of the Collateral, free and clear of any Lien or claims of any
Person except for the interests of landlords' in the Equipment and the lien and
security interest created by this Agreement. No effective financing statement or
other instrument similar in effect covering all or any part of the Collateral is
on file in any recording office, except such as may have been filed in favor of
the Trustee relating to this Agreement.
(iv) This Agreement has been duly executed and delivered by Pledgor
and constitutes a legal, valid and binding obligation of Pledgor, enforceable
against Pledgor in accordance with its terms, except as such enforceability may
be limited by the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally or general principles of equity.
(v) Except as discussed in the Offering Circular distributed in
connection with the sale of the Securities, no litigation, investigation or
proceeding of or before any arbitrator or governmental authority is pending or,
to the knowledge of Pledgor, threatened by or against Pledgor with respect to
this Agreement or the pledge of Collateral by Pledgor contemplated hereby,
except in each case for such litigations, investigations or proceedings that,
singly or in the aggregate, are not reasonably likely to result in a material
adverse effect on (i) the business, properties, operations, assets, liabilities,
net worth, condition (financial or otherwise) or prospects of Pledgor and its
consolidated subsidiaries, taken as a whole or (ii) the ability of Pledgor to
perform any of its obligations under this Agreement or the Indenture;
(vi) Other than has been or will be made or obtained, no consent of
any other Person and no consent, authorization, approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body or
other Person is required either for the pledge by Pledgor of the Collateral
pursuant to this Agreement or for the execution, delivery or performance of this
Agreement by Pledgor, (ii) the perfection or maintenance of the pledge created
hereby (including the first priority nature of such pledge) or (iii) except for
the exercise by the Trustee of the remedies in respect of the Collateral
pursuant to this Agreement.
(vii) The principal place of business and chief executive office of
Pledgor and the office where Pledgor keeps its records concerning the Collateral
are located at
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North American Vaccine, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇-Nabi
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(viii) As of the date hereof, all information set forth herein
relating to the Collateral is accurate and complete in all respects.
SECTION 5. Further Assurances.
(a) Pledgor agrees that at any time and from time to time, at the expense
of Pledgor, Pledgor will promptly execute and deliver or use its best efforts to
cause to be executed and delivered all further instruments and documents, and
take all further action, that may be necessary or desirable, or that the Trustee
may request, in order to perfect and protect the priority of the Trustee's
security interest in the Collateral, any pledge, assignment or security interest
granted or purported to be granted hereby or to enable the Trustee to exercise
and enforce its rights and remedies hereunder with respect to any Collateral.
Without limiting the generality of the foregoing, Pledgor will execute and file
such financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the Trustee may
request, in order to perfect and preserve the pledge, assignment and security
interest granted or purported to be granted hereby.
(b) Pledgor hereby authorizes the Trustee to file one or more financing or
continuation statements, and amendments thereto, relating to all or any part of
the Collateral without the signature of Pledgor where permitted by law. A
photocopy or other reproduction of this Agreement or any financing statement
covering the Collateral or any part thereof shall be sufficient as a financing
statement where permitted by law.
(c) Pledgor will furnish to the Trustee from time to time statements and
schedules further identifying and describing the Collateral and such other
reports in connection with the Collateral as the Trustee may reasonably request,
all in reasonable detail.
SECTION 6. As to Equipment.
(a) Pledgor shall keep the Equipment at the places therefor specified
herein or, upon 30 days prior written notice to the Trustee, at such other
places in a jurisdiction where all action required by Section 5 shall have been
taken with respect to the Equipment.
(b) Pledgor shall cause the Equipment to be maintained and preserved in
accordance with its existing practices and shall forthwith, or in the case of
any loss or damage to any of the Equipment as quickly as practicable after the
occurrence thereof, make or cause to be made all repairs, replacements and other
improvements in connection therewith that are necessary or desirable to such
end. Pledgor shall promptly furnish to the Trustee a statement respecting any
loss or damage to any of the Equipment.
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SECTION 7.
Covenants. Pledgor covenants and agrees with the Trustee and the
Holders from and after the date of this Agreement until the Secured Obligations
have been paid in full:
(a) Except as permitted by the Indenture and this Agreement, Pledgor will
not (i) sell, assign (by operation of law or otherwise) or otherwise dispose of,
or grant any option or warrant with respect to, any of the Collateral, (ii)
create or permit to exist any Lien upon or with respect to any of the
Collateral, except as permitted hereunder, or (iii) transfer or otherwise
dispose of any Collateral or take any corporate action to authorize the transfer
or disposition of any Collateral, accept as contemplated herein.
(b) Pledgor agrees that it will not enter into any agreement or
understanding that purports to or may restrict or inhibit the Trustee's rights
or remedies hereunder, including, without limitation, the Trustee's right to
sell or otherwise dispose of the Collateral.
(c) Pledgor shall keep its principal place of business and chief executive
office and the office where it keeps its records concerning the Collateral at
the location specified in Section 4(a)(vii) above or, upon 30 days' prior
written notice to the Trustee, at such other location in a jurisdiction where
all actions required by Section 5 above shall have been taken with respect to
the Collateral. Pledgor will hold and preserve such records and will permit
representatives of the Trustee at any time during normal business hours to
inspect and make copies or abstracts from such records and chattel paper.
(d) Pledgor will at all times be the sole beneficial owner of the
Collateral.
SECTION 8. Trustee Appointed Attorney-in-Fact.
In addition to all of the powers granted to the Trustee pursuant to
the Indenture but subject to the limitations in this Agreement, Pledgor hereby
irrevocably appoints the Trustee as Pledgor's attorney-in-fact, with full
authority in the place and stead of Pledgor and in the name of Pledgor or
otherwise, from time to time in the Trustee's discretion to take any action and
to execute any instrument which the Trustee may reasonably deem necessary or
advisable to accomplish the purposes of this Agreement, including, without
limitation:
(a) to ask for, demand, collect, ▇▇▇ 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 drafts or other instruments and
documents, in connection with clause (a) above, and
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(c) to file any claims or take any action or institute any proceedings
that the Trustee may deem necessary or desirable for the collection of any of
the Collateral or otherwise to enforce the rights of the Trustee with respect to
any of the Collateral.
SECTION 9. Trustee May Perform.
If Pledgor fails to perform any agreement contained herein, the
Trustee, subject to the limitations in this Agreement, below, may itself
perform, or cause performance of, such agreement, and the expenses of the
Trustee, including the fees and expenses of its counsel, incurred in connection
therewith shall be payable by Pledgor.
SECTION 10. The Trustee's Duties.
The powers conferred on the Trustee hereunder are solely to protect
its interest in the Collateral and shall not impose any duty upon it to exercise
any such powers. Except for the safe custody of any Collateral in its possession
and the accounting for moneys actually received by it hereunder, the Trustee
shall have no duty as to any Collateral, as to ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, lenders or other
matters relative to any Collateral, whether or not the Trustee or any Holder has
or is deemed to have knowledge of such matters, or as to the taking of any
necessary steps to preserve rights against any parties or any other rights
pertaining to any Collateral. The Trustee shall be deemed to have exercised
reasonable care in the custody and preservation of any Collateral in its
possession if such Collateral is accorded treatment substantially equal to that
which the Trustee accords trust property.
SECTION 11. Subsequent Changes Affecting Collateral.
Pledgor represents to the Trustee and the Holders that Pledgor has
made its own arrangements for keeping informed of changes or potential changes
affecting the Collateral, and Pledgor agrees that the Trustee and the Holders
shall have no responsibility or liability for informing Pledgor of any such
changes or potential changes or for taking any action or omitting to take any
action with respect thereto. Pledgor covenants that it will not vote or take any
other action to sell or otherwise dispose of, or grant any option, or create or
permit to exist any Lien upon or, with respect to any of the Collateral except
with respect to Collateral released from this Agreement or sales or dispositions
of Collateral in accordance with this Agreement and the Indenture. Pledgor will
defend the right, title and interest of the Trustee and the Holders in and to
the Collateral against the claims and demands of all Persons.
SECTION 12. Remedies Upon Default. If any Event of Default shall have
occurred and be continuing.
(a) (i) The Trustee and the Holders may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party upon
default under the Code, and the Trustee may also in its sole discretion, (i)
require Pledgor to, and Pledgor hereby agrees that it will, at its expense and
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upon request of the Trustee forthwith, assemble all or part of the Collateral as
directed by the Trustee and make it available to the Trustee at a place to be
designated by the Trustee that is reasonably convenient to both parties, and
(ii) 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 of the
Trustee's offices or elsewhere, for cash, on credit or for future delivery, and
at such price or prices and upon such other terms and otherwise in such manner
as the Trustee may deem commercially reasonable, irrespective of the impact of
any such sales on the market price of the Collateral. Each purchaser at any such
sale shall hold the property sold absolutely free from any claim, encumbrance or
right on the part of Pledgor, and, with respect to any such Collateral sold upon
default, Pledgor hereby waives (to the extent permitted by law) all rights of
redemption, stay and or appraisal which it now has or may at any time in the
future have under any rule of law or statute now existing or hereafter enacted.
Pledgor agrees that, to the extent notice of sale shall be required by law, at
least ten days' notice to Pledgor 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. The Trustee shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Trustee 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. Pledgor hereby waives any claims against
the Trustee arising by reason of the fact that the price at which any Collateral
may have been sold at such a private sale was less than the price which might
have been obtained at a public sale, even if the Trustee accepts the first offer
received and does not offer such Collateral to more than one offeree.
(b) The Trustee may exercise any and all rights and remedies of Pledgor in
respect of the Collateral, including, without limitation, any and all of the
rights of Pledgor to demand or otherwise require payment of any amount under, or
performance of any provision of, the Indenture.
(c) All payments received by Pledgor in respect of the Collateral shall be
received in trust for the benefit of the Trustee, shall be segregated from other
funds of Pledgor and shall be forthwith paid over to the Trustee in the same
form as so received (with any necessary endorsement).
SECTION 13. Application of Proceeds.
After and during the continuance of an Event of Default, any cash
held by the Trustee as Collateral and all cash proceeds received by the Trustee
(all such cash being "Proceeds") in respect of any sale of, collection from, or
other realization upon all or any part of the Collateral pursuant to the
exercise by the Trustee of its remedies as a secured creditor as provided in
this Agreement shall be applied promptly from time to time by the Trustee as
follows:
First, to the payment of the costs and expenses of such sale,
collection or other realization, including reasonable compensation to the
Trustee and its agents and counsel, and all fees, expenses, liabilities and
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advances made or incurred by the Trustee and its agents and counsel in
connection therewith;
Second, to the payment of the Secured Obligations in accordance with
the Indenture;
Third, after payment in full of all Secured Obligations, 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 14. Indemnity and Expenses.
(a) Pledgor agrees to indemnify the Trustee (which for purposes of this
Section shall include its officers, directors, employees, and agents) from and
against any and all claims, losses and liabilities growing out of or resulting
from this Agreement (including, without limitation, enforcement of this
Agreement), except claims, losses, or liabilities resulting from the Trustee's
gross negligence or willful misconduct as determined by a final judgment of a
court of competent jurisdiction. This indemnity shall survive the termination of
this Agreement and the resignation or removal of the Trustee.
(b) Pledgor will upon demand pay to the Trustee the amount of any and all
reasonable expenses, including the reasonable fees, expenses and disbursements
of its counsel and of any experts and agents, which the Trustee may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from, or the realization upon, any
of the Collateral, (iii) the exercise or enforcement of any of the rights of the
Trustee or the Holders hereunder or (iv) the failure by Pledgor to perform or
observe any of the provisions hereof.
(c) Pledgor agrees to pay fees and expenses of White & Case, Trustee's
counsel, on or prior to the Closing Date, as defined in the Indenture, in
connection with the preparation, execution, and delivery of this Agreement.
SECTION 15. Security Interest Absolute.
The obligations of Pledgor under this Agreement are independent of
the Secured Obligations, and a separate action or actions may be brought and
prosecuted against Pledgor to enforce this Agreement. All rights of the Trustee
and the Holders and security interests hereunder, and all obligations of Pledgor
hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Indenture or any other
agreement or instrument relating thereto;
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(b) 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 Indenture;
(c) any taking, exchange, surrender, release or non-perfection of any
Liens on any other collateral, or any taking, release or amendment or waiver of
or consent to departure from any guarantee, for all or any of the Secured
Obligations; or
(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, Pledgor in respect of the Secured Obligations
or of this Agreement.
SECTION 16. Substitution of Collateral.
Notwithstanding any provisions of this Agreement, Pledgor shall have
the right, from time to time, to substitute other collateral ("Substitute
Collateral") for all or any portion of the Collateral then subject to this
Agreement; provided, however, that (i) in the event that the Substitute
Collateral is equipment, the acquisition cost of such equipment shall be equal
to or greater in value than the Equipment to be released from the terms of this
Agreement, as established by an Officers' Certificate; and (ii) the aggregate
value on the date of substitution of other Substitute Collateral and any
existing Collateral that will remain subject to this Agreement following such
substitution shall be not less than the aggregate face value of Securities then
outstanding. Under any substitution, the Pledgor and Trustee will execute such
documents and take such actions as may be reasonably necessary to release the
Collateral being released from this Agreement and to subject the Substitute
Collateral to the provisions of this Agreement. All costs in connection
therewith shall be borne solely by Pledgor.
SECTION 17. Amendments, Waivers and Consents.
No amendment or waiver of any provision of this Agreement, and no
consent to any departure by Pledgor herefrom, shall in any event be effective
unless the same shall be in writing and signed by the Trustee, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given. Any amendment or waiver of any provision of
this Agreement and any consent to any departure by Pledgor from any provision of
this Agreement shall be effective only if made or given in compliance with all
of the terms and provisions of the Indenture and neither the Trustee nor any
Holder shall be deemed, by any act, delay, indulgence, omission or otherwise, to
have waived any right or remedy hereunder or to have acquiesced in any Default
or Event of Default or in any breach of any of the terms and conditions hereof.
Failure of the Trustee or any Holder to exercise, or delay in exercising, any
right, power or privilege hereunder shall not operate as waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Trustee or any Holder of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy that the Trustee or such Holder would otherwise have on any
future occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any rights or remedies
provided by law.
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SECTION 18. Addresses for Notices.
All notices and other communications provided for hereunder shall
be in the form and manner, and delivered to each of the parties hereto at their
respective addresses, as set forth or provided for in the Indenture.
SECTION 19. Concerning the Trustee.
(a) Pursuant to the Indenture, the Holders shall have the right, by one or
more instruments in writing executed and delivered to the Trustee, to direct the
time, method and place of conducting any proceeding for any right or remedy
available to the Trustee, or of exercising any trust or power conferred on the
Trustee, or for the appointment of a receiver, or to direct the taking or the
refraining from taking of any action authorized by this Agreement; provided that
(i) such discretion shall not conflict with the provisions of any law or of this
Agreement or the Indenture, (ii) the Trustee be adequately secured and
indemnified as provided in the Indenture and (iii) such direction does not
involve the Trustee in personal liability and is not unjustly prejudicial to the
Holders not consenting. Nothing in this Section 18(a) shall impair the right of
the Trustee in its discretion to take any action or omit to take any action
which it deems proper and which is not inconsistent with such direction. The
Trustee shall have no duty to take or refrain from taking any action unless
explicitly required herein.
(b) The Trustee shall be deemed to have exercised reasonable care in the
custody and preservation of the Collateral in its possession if the Collateral
is accorded treatment substantially equivalent to that which other Trustees, in
similar transactions, accord similar property in similar situations, it being
understood that neither the Trustee nor any Holder shall have responsibility for
(a) ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral, whether or not
the Trustee has or is deemed to have knowledge of such matters, or (b) taking
any necessary steps to preserve the rights against any Person with respect to
any Collateral.
(c) The Trustee shall not be responsible in any manner whatsoever for the
correctness of any recitals, statements, representations or warranties herein,
all of which are made solely by Pledgor. The Trustee makes no representations as
to the value or condition of the Collateral or any part thereof, or as to the
title of Pledgor thereto or as to the security afforded by this Agreement, or as
to the validity, execution (except the Trustee's own execution), enforceability,
legality or sufficiency of this Agreement, and the Trustee shall incur no
liability or responsibility in respect of any such matters.
(d) The Trustee shall have the same rights with respect to any obligation
secured hereunder held by it as any other secured party and may exercise such
rights as though it were not the Trustee hereunder, and may accept deposits
from, lend money to, and generally engage in any kind of banking or trust
business with Pledgor as if it were not the Trustee.
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(e) For purposes of this Agreement, in the performance of the duties and
obligations hereunder the Trustee shall be entitled to the benefits of the terms
and provisions of the Indenture.
SECTION 20. Termination.
Subject to Section 23 of this Agreement, when all the Secured
Obligations have been indefeasibly paid in full in accordance with the terms of
the Indenture, this Agreement shall terminate, and the Trustee shall, upon the
written request and at the expense of Pledgor, forthwith assign, transfer and
deliver, against receipt and without recourse to the Trustee, such of the
Collateral as shall not have been sold or otherwise applied pursuant to the
terms hereof to or on the order of Pledgor. Pledgor agrees to file and record
any and all necessary or applicable terminations or releases including Form
UCC-3.
SECTION 21. Continuing Security Interest; Transfer of Notes.
This Agreement shall create a continuing security interest in the
Collateral and shall, unless otherwise provided in the Indenture or this
Agreement, (a) remain in full force and effect until indefeasible payment in
full is made of all Secured Obligations in accordance with the terms of the
Indenture, (b) be binding upon Pledgor, its successors and assigns, and (c)
inure, together with the rights and remedies of the Trustee hereunder, to the
benefit of the Trustee, the Holders and each of their respective successors,
transferees and assigns.
SECTION 22. Separability Clause.
In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 23. Reinstatement.
This Agreement shall continue to be effective or be reinstated if at
any time any amount received by the Trustee or any Holder in respect of the
Secured Obligations is rescinded or must otherwise be restored or returned by
the Trustee or any Holder upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of Pledgor or upon the appointment of any
receiver, intervenor, conservator, trustee or similar official for Pledgor or
any substantial part of its assets, or otherwise, all as though such payments
had not been made.
SECTION 24. Governing Law; Terms.
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York except to the extent that the validity
or perfection of the security interest hereunder, or remedies hereunder, in
respect of any particular Collateral are governed by the laws of a jurisdiction
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other than the State of New York. Unless otherwise defined herein or in the
Indenture, terms defined in Article 9 of the Uniform Commercial Code as in
effect in the State of Maryland are used herein as therein defined.
SECTION 25. Counterparts.
This Agreement may be signed in any number of counterparts with the
same effect as if the signature thereto and hereto were upon the same
instrument.
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IN WITNESS WHEREOF, Pledgor and the Trustee have each caused this
Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
PLEDGOR:
NORTH AMERICAN VACCINE, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇-Nabi
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇-Nabi, Senior Vice
President-Legal Affairs
By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President-
Finance
TRUSTEE:
BANKERS TRUST COMPANY,
as Trustee
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Assistant Vice President
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust and Agency
Services
ANNEX A
NORTH AMERICAN VACCINE, INC. AND SUBSIDIARIES
COLLATERAL FOR CONVERTIBLE DEBT OFFERING
AS OF SEPTEMBER 30, 1998
TYPE OF COLLATERAL LOCATION PAGES CLASS ACQUIRED ACCUMULATED NET BOOK
VALUE DEPRECIATION VALUE
MANUFACTURING EQUIPMENT 1-8 1E 9,838,057.34 6,192,688.99 3,645,368.35
41-56 EA 3,771,202.21 1,901,889.35 1,869,312.86
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇-▇▇ ▇▇ 3,693,886.87 3,673,624.60 20,262.27
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Beltsville, MD 17,303,146.42 11,768,202.94 5,534,943.48
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MANUFACTURING EQUIPMENT ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 8-14 2E 1,162,376.10 776,796.99 385,579.11
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Beltsville, MD
MANUFACTURING EQUIPMENT ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
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Beltsville, MD 18-20 5E 457,991.65 115,808.51 342,183.14
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OFFICE EQUIPMENT 21 5O 998,040.77 727,319.14 270,721.63
22-23 6O 37,207.03 2,916.61 34,290.42
57-82 OF 2,760,893.03 2,066,486.00 694,407.03
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Various 3,796,140.83 2,796,721.75 999,419.08
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RESEARCH & DEVELOPMENT EQUIPMENT 21-22 6E 117,023.29 4,586.96 112,436.33
28-38 CE 1,818,154.25 1,594,776.10 223,378.15
38-41 DE 728,418.49 346,162.13 382,256.36
56-57 ME 259,464.38 164,836.67 94,627.71
88-89 SE 171,827.71 138,877.36 32,950.35
Less Truck included in the SE Class $ 88 SE (21,580.55) (21,580.55) -
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Various 3,073,307.57 2,227,658.67 845,648.90
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TOTAL OWNED EQUIPMENT $25,792,962.57 $17,685,188.86 $8,107,773.71
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