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EXHIBIT 10.11
PATENT AND TRADEMARK SECURITY AGREEMENT
THIS PATENT AND TRADEMARK SECURITY AGREEMENT (this "Agreement") is made
and entered into as of April 14, 1999 by SENETEK, PLC, a corporation organized
under the laws of England (the "Company"), and each of the undersigned (each a
"Grantor", and collectively with the Company, the "Grantors"), and SILVER CREEK
INVESTMENTS, Ltd., a British Virgin Islands company, as Collateral Agent for the
benefit of the Purchasers under the Purchase Agreement (as defined below) (the
"Collateral Agent"). All capitalized terms used but not otherwise defined herein
shall have the respective meanings assigned thereto in the Purchase Agreement;
WITNESSETH:
WHEREAS, the Company has entered into the Securities Purchase Agreement
dated as of the date hereof between the Company and the Purchasers (as from time
to time amended, revised, modified, supplemented or amended and restated, the
"Purchase Agreement"); and
WHEREAS, as collateral security for payment and performance of its
Obligations, the Company is willing to grant to the Collateral Agent for the
benefit of the Purchasers a security interest in all of its patents and
trademarks pursuant to the terms of this Agreement; and
WHEREAS, each Guarantor will materially benefit from purchase of the
Securities by the Purchasers pursuant to the Purchase Agreement and each
Guarantor is a party to that certain Guaranty Agreement (the "Guaranty"), dated
as of the date hereof, pursuant to which each Guarantor guaranteed the
Obligations of the Company; and
WHEREAS, as collateral security for payment and performance of its
Obligations (as defined in the Guaranty, and together with the Obligations, the
"Secured Obligations") under the Guaranty, each Guarantor is willing to grant to
the Collateral Agent for the benefit of the Purchasers a security interest in
all of its patents and trademarks; and
WHEREAS, the Purchasers are unwilling to enter into the Purchase
Agreement unless the Company and the Guarantors enter into this Agreement;
NOW, THEREFORE, in order to induce the Purchasers to enter into the
Purchase Agreement, and in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms.
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(a) Unless otherwise defined herein, each capitalized term used
herein that is defined in the Purchase Agreement shall have the meaning
specified for such term in the Purchase Agreement.
(b) The words "hereof," "herein" and "hereunder" and words of
like import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and section references
are to this Agreement unless otherwise specified.
(c) All terms defined in this Agreement in the singular shall
have comparable meanings when used in the plural, and vice versa, unless
otherwise specified.
2. Grant of Security Interest in Trademarks. To secure the complete and
timely payment, performance and satisfaction of all of the Secured Obligations,
each Grantor hereby grants to the Collateral Agent for the benefit of the
Purchasers, a security interest in, as and by way of a first mortgage and
security interest having priority over all other security interests, with power
of sale to the extent permitted by applicable law, all of such Grantors' now
owned or existing and hereafter acquired or arising:
(i) all trademarks, trade names, trade dress, design marks,
service marks, logos, corporate names, company names, business names,
domain names, trade styles and other source of business identifiers, and
all federal, state and foreign registrations, renewals and recordings
thereof and all applications in connection therewith (I) listed on
Schedule A attached hereto and made a part hereof and (II) hereafter
acquired or arising and (a) all income, royalties, damages and payments
now and hereafter due and/or payable under and with respect thereto,
including, without limitation, payments under all licenses entered into
in connection therewith and damages and payments for past or future
infringements or dilutions thereof (b) the right to xxx for past,
present and future infringements and dilutions thereof (c) the goodwill
of such Grantor's businesses symbolized by the foregoing and connected
therewith, and (d) all of such Grantor's rights corresponding thereto
throughout the world (all of the foregoing items described in this
Section 2(i), are sometimes hereinafter individually and/or collectively
referred to as the "Trademarks"); and
(ii) rights under or interest in any trademark or service xxxx
licenses or agreements with any other party, whether such Grantor is a
licensee or licensor, including, without limitation, those trademark or
service xxxx licenses and agreements listed on Schedule A attached
hereto and made a part hereof, in each case to the extent assignable
without violation thereof together with any goodwill connected with and
symbolized by any such trademark or service xxxx licenses and
agreements, the right to collect and receive payments, including but not
limited to royalties, under such licenses and agreements or damages for
breach thereof and the right to prepare for sale and sell any and all
Inventory now or hereafter owned by such Grantor and now or hereafter
covered by such licenses and agreements and all rights corresponding
thereto in the United States and any foreign country (the "Trademark
Licenses") (all of the foregoing items described in this Section 2
(i-ii) are hereinafter collectively referred to as the
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"Trademark Collateral").
3. Grant of Security Interest in Patents. To secure the complete and
timely payment, performance and satisfaction of all of the Secured Obligations,
the Grantors hereby grant to the Collateral Agent for the benefit of the
Purchasers, a security interest in, as and by way of a first mortgage and
security interest having priority over all other security interests, with power
of sale to the extent permitted by applicable law, all of the Grantors' now
owned or existing and hereafter acquired or arising:
(i) all letters patent and applications for letters patent
throughout the world, including all patent applications in preparation
for filing anywhere in the world and including each patent and patent
application referred to in Schedule B hereto (the "Patents");
(ii) all patent licenses, including each patent license referred
to in Schedule B hereto (the "Patent Licenses");
(iii) all reissues, divisions, continuations,
continuations-in-part, extensions, renewals and reexaminations of any of
the items described in the foregoing clauses (i) and (ii); and
(iv) all proceeds of, and rights associated with, the foregoing
(including license royalties and proceeds of infringement suits), the
right to xxx third parties for past, present or future infringements of
any patent or patent application, including any patent or patent
application referred to in Schedule B hereto, and for breach or
enforcement of any patent license, including any patent license referred
to in Schedule B hereto, and all rights corresponding thereto throughout
the world (all of the foregoing items described in this Section 3 (i-iv)
are hereinafter collectively referred to as the "Patent Collateral").
4. Security Agreement. This Agreement has been executed and delivered by
the Grantors for the purpose of registering the security interest of the
Collateral Agent for the benefit of the Purchasers in the Trademark Collateral
and the Patent Collateral with the United States Patent and Trademark Office and
corresponding offices in other countries and foreign jurisdictions throughout
the world. The security interest granted hereby has been granted as a supplement
to, and not in limitation of, the security interest granted to the Collateral
Agent for the benefit of the Purchasers for its benefit under the Security
Agreement. The Security Agreement (and all rights and remedies of the Collateral
Agent for the benefit of the Purchasers thereunder) shall remain in full force
and effect in accordance with its terms.
5. Restrictions on Future Agreements. The Grantors agree that they will
not take any action, and will use best efforts not to permit any action to be
taken by others, including, without limitation, licensees, or fail to take any
action, which could reasonably be expected to have a material adverse effect on
the validity or enforcement of the rights collaterally assigned to the
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Collateral Agent for the benefit of the Purchasers under this Agreement or the
rights associated with the Trademark Collateral or Patent Collateral, and in
particular, the Grantors will not permit to lapse or become abandoned any
Trademark or Patent if such lapse or abandonment could reasonably be expected to
have a Material Adverse Effect.
6. No Other Liens' Perfected First Priority Liens. Except for the Liens
granted pursuant to this Agreement and the Security Agreement and Permitted
Liens, the Grantors own each of the Trademarks and Patents free and clear of any
and all Liens. No security agreement, financing statement or other public notice
with respect to all or any part of the Trademarks or Patents is on file or of
record in any public office, except such as have been filed in favor of the
Collateral Agent for the benefit of the Purchasers pursuant to this Agreement.
The Lien granted pursuant to this Agreement (i) upon completion of the filings
and other actions in appropriate filing offices will constitute perfected
security interests in the Trademarks and Patents in favor of the Collateral
Agent for the benefit of the Purchasers and (ii) is enforceable as such against
all creditors of and purchasers from the Grantors. The Grantors represent and
warrant that, (a) the Trademarks listed on Schedule A include all of the
material registered trademarks, trademark applications, registered service marks
and service xxxx applications now owned or held by any of the Grantors; (b) the
Patents listed on Schedule B include all of the letters patent and pending
patent applications now owned or held by any of the Grantors; and (c) the
Trademark Licenses and Patent Licenses listed on Schedules A and B,
respectively, include all of the trademark and service xxxx licenses and
agreements and patent licenses and agreements under which any of the Grantors is
presently the licensee or licensor and which are material individually or in the
aggregate to the operation of the businesses of the Grantors.
7. New Trademarks, Patents and Licenses. If, prior to the termination of
this Agreement, the Grantors shall (i) obtain rights to any new Trademarks or
Patents, (ii) become entitled to the benefit of any Trademarks or Patents,
whether as licensee or licensor, or (iii) enter into any new Trademark or Patent
Licenses, the provisions of Sections 2 and 3 above shall automatically apply
thereto (except in cases where any Grantor is the licensee, to the extent such
licenses are assignable without violation thereof it being understood and agreed
that the Grantors shall use commercially reasonable efforts to ensure that such
licenses are assignable for security purposes). The Grantors shall give to the
Collateral Agent for the benefit of the Purchasers written notice within 30
Business Days after the occurrence of any of the events described in clauses
(i), (ii) and (iii) of the preceding sentence. The Grantors hereby authorize the
Collateral Agent for the benefit of the Purchasers, upon receipt of such notice,
to modify this Agreement unilaterally (i) by amending Schedule A in accordance
with such notice to include any Trademarks owned or held by the Grantors and any
Trademark Licenses to which either Grantor becomes a party, (ii) by amending
Schedule B in accordance with such notice to include any future Patents owned or
held by the Grantors and any Patent Licenses to which either Grantor becomes a
party; (iii) by preparing this Agreement for filing with the United States
Patent and Trademark Office or any corresponding foreign patent or trademark
office or governmental agency, and (iv) by filing, in addition to and not in
substitution for this Agreement, a duplicate original of this Agreement
containing on Schedules A and B thereto as the case may be such future
Trademarks and Trademark Licenses, and Patent and Patent Licenses.
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8. Covenants. The Grantors covenant and agree that:
(a) Further Documentation. At any time and from time to time,
upon the written request of the Collateral Agent for the benefit of the
Purchasers, the Grantors will promptly and duly execute and deliver such further
instruments and documents and take such further action as the Collateral Agent
for the benefit of the Purchasers may reasonably request for the purpose of
obtaining or preserving the full benefits of this Agreement and of the rights
and powers herein granted, including, without limitation, the filing of any
financing or continuation statements under the Uniform Commercial Code. Any
costs or expenses incurred in connection with the performance of the obligations
set forth in the first sentence of this section (a) shall be borne by the
Grantors.
(b) Maintenance of Records. The Grantors will keep and maintain
at their own cost and expense satisfactory and complete records of the
Trademarks and Patents. The Grantors will xxxx their books and records
pertaining to the Trademark Collateral and Patent Collateral to evidence this
Agreement and the security interests granted hereby.
(c) Compliance with Laws etc. The Grantors will comply in all
material respects with all laws, rules, regulations, orders, decisions or
decrees of any federal, state or local executive, legislative, judicial,
regulatory or administrative agency, board or authority applicable to the
Trademark Collateral and Patent Collateral or any part thereof or to the
operation of the Grantors' businesses to the extent necessary to prevent an
impairment of the Lien granted hereby or the Collateral Agent's interest in the
Trademark Collateral and Patent Collateral.
(d) Limitation on Liens on Trademarks and Patents. The Grantors
will not create, incur or permit to exist, will defend the Collateral Agent for
the benefit of the Purchasers against, and will take such other action as is
necessary to remove any Lien or claim on or to the Trademarks and Patents other
than the Liens created hereby or the Security Agreement. The Grantors will
advise the Collateral Agent for the benefit of the Purchasers promptly of any
Lien on any of the Trademarks or Patents.
(e) Payment of Secured Obligations. The Grantors will pay and
discharge or otherwise satisfy at or before maturity, or before they become
delinquent, as the case may be, all taxes, assessments and governmental charges
or levies imposed upon the Trademark Collateral and Patent Collateral or in
respect of income or profits therefrom, as well as all claims of any kind
(including, without limitation, claims for labor, materials and supplies)
against or with respect to the Trademark Collateral and Patent Collateral
(except any Lien permitted by clause (viii) of the definition of Permitted Liens
in the Purchase Agreement).
9. Royalties. The Grantors hereby agree that when an Event of Default
has occurred and is continuing, the use by the Collateral Agent for the benefit
of the Purchasers of the Trademark Collateral and Patent Collateral as
authorized hereunder in connection with the Collateral Agent's exercise of its
rights and remedies hereunder shall be coextensive with the Grantors' rights
thereunder and with respect thereto and without any liability for royalties or
other related charges from the Collateral Agent.
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10. Further Assignments and Security Interests. Notwithstanding Section
25 hereof, no Grantor shall, without the prior written consent of the Collateral
Agent for the benefit of the Purchasers, be permitted to assign this Agreement
or any interest herein or in the Trademark Collateral or Patent Collateral, or
any part thereof, or otherwise pledge, encumber or grant any option with respect
to the Trademark Collateral or Patent Collateral, or any part thereof, held by
the Collateral Agent for the benefit of the Purchasers under this Agreement,
other than Permitted Liens. Upon and during the continuance of an Event of
Default, the Grantors agree that the Collateral Agent for the benefit of the
Purchasers, shall have the right to establish such reasonable quality controls
as the Collateral Agent for the benefit of the Purchasers, in its sole and
absolute judgment, may deem necessary to assure maintenance of the quality of
inventory marketed by the Grantors under the Trademarks and the Trademark
Licenses or in connection with which such Trademarks and Trademark Licenses are
used.
11. Continuing Security Interests. This Agreement is made for collateral
security purposes only. This Agreement shall create a continuing security
interest in the Trademark Collateral and Patent Collateral.
12. Duties of the Grantors. The Grantors shall have the duty, to the
extent desirable in the normal conduct of the Grantors' businesses, to: (i)
prosecute diligently any trademark or service xxxx application that is part of
the Trademarks, and any patent application that is part of the Patents, pending
as of the date hereof or hereafter until the termination of this Agreement, and
(ii) make application for the registration of any trademarks or service marks,
or application for the issuance of any patent, whether currently or hereafter
used or adopted by the Grantors in the United States and any foreign country or
territory throughout the world. The Grantors further agree (a) not to abandon
any Trademarks or Trademark Licenses, or any Patents or Patent Licenses if such
abandonment could reasonably be expected to have a Material Adverse Effect
without the prior written consent of the Collateral Agent for the benefit of the
Purchasers, and (b) to use reasonable best efforts to obtain and maintain in
full force and effect the Trademarks and Trademark Licenses and Patents and
Patent Licenses that are or shall be necessary or economically desirable in the
operation of the Grantors' businesses. Any expenses incurred in connection with
the foregoing shall be borne by the Grantors. The Collateral Agent for the
benefit of the Purchasers shall have no duty with respect to the Trademarks and
Trademark Licenses, and the Patents and Patent Licenses. Without limiting the
generality of the foregoing, the Collateral Agent for the benefit of the
Purchasers shall be under no obligation to take any steps necessary to preserve
rights in the Trademarks or Trademark Licenses, and the Patents or Patent
Licenses, but the Collateral Agent for the benefit of the Purchasers may do so
at its option upon and during the continuance of an Event of Default, and all
expenses incurred in connection therewith shall be for the sole account of the
Grantors and shall be added to the Secured Obligations secured hereby.
13. The Collateral Agent's Right to Xxx. Upon and during the continuance
of an Event of Default, the Collateral Agent for the benefit of the Purchasers
shall have the right, but shall not be obligated, to bring suit in its own name
to enforce the Trademarks and the Licenses and, if the Collateral Agent for the
benefit of the Purchasers shall commence any such suit, the Grantors shall, at
the request of the Collateral Agent for the benefit of the Purchasers, do any
and
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all lawful acts and execute any and all proper documents required by the
Collateral Agent for the benefit of the Purchasers in aid of such enforcement.
The Grantors shall, upon demand, promptly reimburse the Collateral Agent for the
benefit of the Purchasers for all costs and expenses incurred by the Collateral
Agent for the benefit of the Purchasers in the exercise of its rights under this
Section 13 (including, without limitation, reasonable fees and expenses of
attorneys and paralegals for the Collateral Agent for the benefit of the
Purchasers).
14. Power of Attorney. The Grantors agree, upon the request of the
Collateral Agent for the benefit of the Purchasers and promptly following such
request, to take any action and execute any instrument which the Collateral
Agent for the benefit of the Purchasers may deem necessary or advisable to
accomplish the purposes of this Agreement. The Grantors hereby irrevocably
designate, constitute and appoint the Collateral Agent for the benefit of the
Purchasers (and all Persons designated by the Collateral Agent for the benefit
of the Purchasers in its sole and absolute discretion) with full power of
substitution, as the Grantors' true and lawful attorney-in-fact, with full power
and authority in the name of the Grantors, or in its own name, from time to time
in the Collateral Agent for the benefit of the Purchasers's discretion upon and
during the continuance of an Event of Default, for the purpose of carrying out
the terms of this Agreement, to take any and all appropriate action and to
execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes hereof and, without limiting the generality
of the foregoing, hereby give the Collateral Agent for the benefit of the
Purchasers the power and right on behalf of the Grantors, without notice or
assent by the Grantors, to the extent permitted by applicable law, to (i)
endorse the Grantors' names on all applications, documents, papers and
instruments necessary or desirable for the Collateral Agent for the benefit of
the Purchasers in the use, prosecution or protection of the Trademark Collateral
and Patent Collateral, (ii) assign, pledge, convey or otherwise transfer title
in or dispose of the Trademark Collateral or Patent Collateral to anyone on
commercially reasonable terms (but subject to the terms thereof), (iii) grant or
issue any exclusive or nonexclusive license under the Trademarks or Patents or
under the Trademark Licenses or Patent Licenses, to anyone on commercially
reasonable terms (but only, in the case of Licenses, to the extent permitted
under such Licenses), and (iv) take any other actions with respect to the
Trademarks and Patents or, to the extent permitted, the Trademark and Patent
Licenses as the Collateral Agent for the benefit of the Purchasers deems in its
own best interest. This power of attorney is coupled with an interest and shall
be irrevocable until the termination of this Agreement as provided in Section 27
hereof. The Grantors acknowledge and agree that this Agreement is not intended
to limit or restrict in any way the rights and remedies of the Collateral Agent
for the benefit of the Purchasers, but rather is intended to facilitate the
exercise of such rights and remedies. The power granted pursuant to this Section
14 shall terminate upon the termination of this Agreement as provided in Section
27 hereof.
15. Event of Default; Cumulative Remedies. The Collateral Agent for the
benefit of the Purchasers shall have, in addition to all other rights and
remedies given it by the terms of this Agreement, all rights and remedies
allowed by law and the rights and remedies of a secured party under the Uniform
Commercial Code as enacted in any jurisdiction in which the Trademarks or the
Licenses may be located or deemed located. Upon and during the continuance of an
Event of Default, the Grantors agree to assign, convey and otherwise transfer
title in and to the Trademark Collateral and Patent Collateral to the Collateral
Agent for the benefit of the Purchasers or any
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transferee of the Collateral Agent for the benefit of the Purchasers and to
execute and deliver to the Collateral Agent for the benefit of the Purchasers or
any such transferee all such agreements, documents and instruments as may be
necessary, in the Collateral Agent for the benefit of the Purchasers's sole
discretion exercised in a commercially reasonable manner, to effect such
assignment, conveyance and transfer. All of the Collateral Agent for the benefit
of the Purchasers's rights and remedies with respect to the Trademark Collateral
and Patent Collateral, whether established hereby, by the Security Agreement, by
any other agreements or by law, shall be cumulative and may be exercised
separately or concurrently. Notwithstanding anything set forth herein to the
contrary, it is hereby expressly agreed that upon and during the continuance of
an Event of Default, the Collateral Agent for the benefit of the Purchasers may
exercise any of the rights and remedies provided in this Agreement, the Security
Agreement and any of the other Transaction Documents, including, but not limited
to, the right to sell, transfer or otherwise dispose of any and all finished
goods Inventory bearing the Trademarks in any manner determined solely by the
Collateral Agent for the benefit of the Purchasers. The Grantors agree that any
notification of intended disposition of any of the Trademark Collateral or
Patent Collateral required by law shall be deemed reasonably and properly given
if given at least ten (10) Business Days before such disposition. The Grantors
hereby agree that they shall have no right to satisfy the Collateral Agent for
the benefit of the Purchasers's rights to equitable remedies by the payment of
money damages, and nothing contained in this Agreement will restrict the
Collateral Agent for the benefit of the Purchasers's rights to obtain equitable
remedies for breaches of this Agreement. To the extent permitted by applicable
law, the Grantors waive all claims, damages, and demands they may acquire
against the Collateral Agent for the benefit of the Purchasers arising out of
the lawful exercise by it of its rights hereunder.
16. Indemnity and Expenses.
(a) Each Grantor agrees to indemnify the Collateral Agent for the
benefit of the Purchasers and each Purchaser from and against any and all
claims, losses and liabilities (other than Excluded Expenses (as such term is
defined in Section 1(d) of the Pledge Agreement)) growing out of or resulting
from this Agreement that are incurred by the Collateral Agent for the benefit of
the Purchasers for the benefit of the Purchasers (including without limitation
enforcement of this Agreement), except claims, losses or liabilities directly
resulting from the gross negligence or willful misconduct of the Collateral
Agent or any Purchaser.
(b) Each Grantor will upon demand pay to the Collateral Agent for
the benefit of the Purchasers the amount of any and all reasonable expenses,
including the reasonable fees and disbursements of its counsel and of any
experts and agents (other than Excluded Expenses (as such term is defined in
Section 16(a) above)), that the Collateral Agent for the benefit of the
Purchasers may incur in connection with (i) the administration or amendment of
this Agreement, (ii) the custody, preservation, use or operation of, or the sale
of, collection from or other realization upon, any of the Trademark Collateral
and Patent Collateral, (iii) the exercise or enforcement of any of the rights of
the Collateral Agent for the benefit of the Purchasers, or (iv) the failure by
such Grantor to perform or observe any of the provisions hereof.
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17. Waivers. In addition to the other waivers contained herein, each
Grantor hereby expressly waives, to the extent permitted by law: presentment for
payment, demand, protest, notice of demand, notice of protest, notice of default
or dishonor, notice of payments and nonpayments and all other notices and
consents to any action taken by the Collateral Agent for the benefit of the
Purchasers unless expressly required by this Agreement. The Collateral Agent for
the benefit of the Purchasers's failure, at any time or times hereafter, to
require strict performance by the Grantors of any provision of this Agreement
shall not waive, affect or diminish any right of the Collateral Agent for the
benefit of the Purchasers thereafter to demand strict compliance and performance
therewith nor shall any course of dealing between the Grantors and the
Collateral Agent for the benefit of the Purchasers have such effect. No single
or partial exercise of any right hereunder shall preclude any other or further
exercise thereof or the exercise of any other right. None of the undertakings,
agreements, warranties, covenants and representations of the Grantors contained
in this Agreement shall be deemed to have been suspended or waived by the
Collateral Agent for the benefit of the Purchasers unless such suspension or
waiver is in writing signed by an officer of the Collateral Agent for the
benefit of the Purchasers and directed to the Grantors specifying such
suspension or waiver.
18. Absolute Rights and Obligations. All rights of the Collateral Agent
for the benefit of the Purchasers in the Security Interests granted hereunder,
and each of the Secured Obligations, shall be absolute and unconditional
irrespective of:
(a) 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 departure from, the Purchase Agreement or any
other Transaction Document, including, but not limited to, (i) an increase or
decrease in the Secured Obligations and (ii) an amendment of any Transaction
Document to permit the Collateral Agent for the benefit of the Purchasers or any
one or more of them to extend further or additional credit to the Company in any
form including credit by way of loan, purchase of assets, guarantee or
otherwise, which credit shall thereupon be and become subject to the Purchase
Agreement and the other Transaction Documents as a Secured Obligation;
(b) any taking and holding of collateral or guarantees (including
without limitation any collateral pledged as security for the Secured
Obligations under the other Security Instruments) for all or any of the Secured
Obligations; or any amendment, alteration, exchange, substitution, transfer,
enforcement, waiver, subordination, termination or release of any such
collateral or guarantees, or any non-perfection of any such collateral, or any
consent to departure from any such guaranty;
(c) any manner of application of collateral, or proceeds thereof,
securing payment or enforcement of all or any of the Secured Obligations, or the
manner of sale of any such collateral;
(d) any consent by the Secured Parties to the change, restructure
or termination of the corporate structure or existence of the Company or any
Grantor and any
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corresponding restructure of the Secured Obligations, or any other restructure
or refinancing of the Secured Obligations or any portion thereof,
(e) any modification, compromise, settlement or release by the
Secured Parties, by operation of law or otherwise, collection or other
liquidation of the Secured Obligations or the liability of the Company, any
Grantor or any Guarantor (other than the Grantor against which this Agreement is
to be enforced), or of any collateral for the Secured Obligation (including
without limitation any collateral pledged as security for the Secured
Obligations under the other Security Instruments), in whole or in part, and any
refusal of payment by the Collateral Agent for the benefit of the Purchasers in
whole or in part, from any obligor or Guarantor (other than the Grantor against
which this Agreement is sought to be enforced) in connection with any of the
Secured Obligations, whether or not with notice to, or further assent by, or any
reservation of rights against, any Grantor; or
(f) any other circumstance (including without limitation any
statute of limitations) that might otherwise constitute a defense available to,
or a discharge of, the Company, any Guarantor or a Grantor.
The granting of a Security Interest in the Collateral shall continue to
be effective or be reinstated, as the case may be, if at any time any payment of
any of the Secured Obligations is rescinded or must otherwise be returned by any
Collateral Agent for the benefit of the Purchasers, upon the insolvency,
bankruptcy or reorganization of the Company or any Grantor or otherwise, all as
though such payment had not been made
19. Definitions. All terms used herein which are not defined herein or
in the Purchase Agreement shall be defined in accordance with the appropriate
definitions appearing in the Uniform Commercial Code as currently in effect in
New York, and such definitions are hereby incorporated herein by reference and
made a part hereof.
20. Entire Agreement. This Agreement, together with the Purchase
Agreement, the Guaranty and other Transaction Documents, constitutes and
expresses the entire understanding between the parties hereto with respect to
the subject matter hereof, and supersedes all prior agreements and
understandings, inducements, commitments or conditions, express or implied, oral
or written, except as herein contained. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof. Neither this Agreement nor any portion or provision hereof
may be changed, altered, modified, supplemented, discharged, canceled,
terminated, or amended orally or in any manner other than by an agreement, in
writing signed by the parties hereto, except at provided in Section 7.
21. Further Assurances. Each Grantor agrees at its own expense to do
such further acts and things, and to execute and deliver such additional
conveyances, assignments, financing statements, agreements and instruments, as
the Collateral Agent for the benefit of the Purchasers may at any time
reasonably request in connection with the administration or enforcement of this
Agreement or related to the Collateral or any part thereof or in order better to
assure and confirm unto the Collateral Agent for the benefit of the Purchasers
its rights, powers and remedies
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hereunder. Each Grantor hereby consents and agrees that the issuers of or
obligors in respect of the Collateral shall be entitled to accept the provisions
hereof as conclusive evidence of the right of the Collateral Agent for the
benefit of the Purchasers to exercise its rights hereunder with respect to the
Collateral, notwithstanding any other notice or direction to the contrary
heretofore or hereafter given by any Grantor or any other Person to any of such
issuers or obligors.
22. Intentionally omitted.
23. Severability. The provisions of this Agreement are independent of
and separable from each other. If any provision hereof shall for any reason be
held invalid or unenforceable, such invalidity or unenforceability shall not
affect the validity or enforceability of any other provision hereof, but this
Agreement shall be construed as if such invalid or unenforceable provision had
never been contained herein.
24. Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Grantor, and the right, remedies, powers, and
privileges of the Collateral Agent for the benefit of the Purchasers hereunder
shall inure to the benefit of the successors and assigns of the Collateral Agent
for the benefit of the Purchasers; provided, however, that no Grantor shall make
any assignment hereof without the prior written consent of the Collateral Agent
for the benefit of the Purchasers.
25. Counterparts. This Agreement may be executed in any number of
counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
26. Remedies Cumulative. All remedies hereunder are cumulative and are
not exclusive of any other rights and remedies of the Collateral Agent for the
benefit of the Purchasers provided by law or under the Purchase Agreement, the
other Transaction Documents, or other applicable agreements or instruments. The
purchase of the Notes by the Collateral Agent for the benefit of the Purchasers
pursuant to the Purchase Agreement shall be conclusively presumed to have been
made or extended, respectively, in reliance upon each Grantor's execution and
delivery hereof.
27. Termination: Release of Collateral. This Agreement shall terminate
upon the payment in full of the Notes, at which time the liens and rights
granted to the Collateral Agent for the benefit of the Purchasers hereunder
shall automatically terminate and no longer be in effect, and the Trademark
Collateral and Patent Collateral shall automatically be released from the liens
created hereby. Upon such termination of this Agreement, the Collateral Agent
for the benefit of the Purchasers shall, at the sole expense of the Grantors,
reassign and redeliver to each applicable Grantor such Trademark Collateral and
Patent Collateral then held by or for the Collateral Agent for the benefit of
the Purchasers and execute and deliver to such Grantor such documents as such
Grantor shall reasonably request and take such further actions as may be
reasonably necessary to effect the same.
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28. Notices. Any notice required or permitted hereunder shall be given,
(a) with respect to the Company or any Grantor, at the Company's address
indicated in Section 12.9 of the Purchase Agreement and (b) with respect to the
Collateral Agent for the benefit of the Purchasers, at the Collateral Agent for
the benefit of the Purchasers's address indicated in Section 12.9 of the
Purchase Agreement. All such notices shall be given and shall be effective as
provided in Section 12.9 of the Purchase Agreement.
29. Governing Law; Service of Process.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE NOTWITHSTANDING ITS EXECUTION
AND DELIVERY OUTSIDE SUCH STATE.
(b) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST EACH PARTY TO THIS
AGREEMENT WITH RESPECT TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE
OF NEW YORK AND, BY ITS EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY TO
THIS AGREEMENT ACCEPTS, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT FROM
WHICH NO APPEAL HAS BEEN TAKEN OR IS AVAILABLE. EACH PARTY TO THIS AGREEMENT
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ITS NOTICE ADDRESS SPECIFIED
IN SECTION 28 HEREOF, SUCH SERVICE TO BECOME EFFECTIVE FIVE (5) DAYS AFTER SUCH
MAILING. EACH PARTY TO THIS AGREEMENT HEREBY KNOWINGLY, INTENTIONALLY AND
IRREVOCABLY WAIVE (A) TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND (B) ANY OBJECTION
(INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER TRANSACTION DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN
SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) EACH PARTY TO THIS AGREEMENT AGREES THAT SERVICE OF PROCESS
MAY BE MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER
LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR
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PROCEEDING, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE
LAWS IN EFFECT IN THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
GRANTORS:
SENETEK, PLC
By: /s/ XXXXX X. XXXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
CARME COSMECEUTICAL SCIENCES, INC.
By: /s/ XXXXX X. XXXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
SECURED PARTY:
SILVER CREEK INVESTMENTS, LTD.
By:
-------------------------------
Name:
Title:
[Signature page to Patent and Trademark Security Agreement]