EXHIBIT 10.10
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "AGREEMENT") is made as of May 6, 1999 by
and between INFORMAX, INC., a Delaware corporation (the "GRANTOR"), with an
address at 6110 Executive Boulevard, N. Bethesda, MD 20852, and PNC BANK,
NATIONAL ASSOCIATION (the "Bank"). All terms capitalized but not otherwise
defined herein shall have the meanings ascribed to them in the Loan Agreement
(as defined below).
Under the terms hereof, the Bank desires to obtain and the Grantor desires
to grant the Bank security for all of the Obligations (as hereinafter defined).
NOW, THEREFORE, the Grantor and the Bank, intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS.
(a) "COLLATERAL" shall include all personal property of the Grantor (except
for certain office equipment and related items located in home offices of
employees with a book value less than Thirty Thousand Dollars ($30,000) in the
aggregate), including without limitation the following, all whether now owned or
hereafter acquired or arising: (i) accounts, accounts receivable, contract
rights (except with respect to those contracts which require consent of a third
party to assignment by the Grantor of its rights thereunder, and for which the
Grantor is unable to obtain such consent after the exercise of commercially
reasonable efforts; provided, however, that the foregoing exception shall in no
event apply to the Grantor's right to receive payment under any contract, which
right to payment shall be specifically included in the Collateral without regard
to any restrictions on the assignment of any other rights under such contract),
chattel paper, notes receivable, instruments and documents (including warehouse
receipts), and Grantor's accounts with the Bank; (ii) goods of every nature,
including without limitation, inventory, stock-in-trade, raw materials, work in
process, items held for sale or lease or furnished or to be furnished under
contracts of sale or lease, goods that are returned, reclaimed or repossessed,
together with materials used or consumed in the Grantor's business; (iii)
equipment, including, without limitation, machinery, vehicles, furniture and
fixtures; (iv) general intangibles, of every kind and description, including,
but not limited to, all existing and future customer lists, choses in action,
claims (including without limitation claims for indemnification or breach of
warranty), books, records, patents and patent applications, trademarks
(including, without limitation, the Trademarks as defined in the Rider to
Security Agreement - Trademarks between Grantor and Bank of even date herewith),
tradestyles, trademark applications, goodwill, blueprints, drawings, designs and
plans, trade secrets, contracts, licenses, license agreements, formulae, tax and
any other types of refunds, returned and unearned insurance premiums, rights and
claims under insurance policies, and computer information, software, source
codes, object codes, records and data; (v) all property of the Grantor now or
hereafter in the Bank's possession or in transit to or from, under the custody
or control of or on deposit with, the Bank or any
<PAGE>
affiliate thereof, including deposit and other accounts; (vi) all cash and cash
equivalents; and (vii) all cash and non-cash proceeds (including without
limitation, insurance proceeds) of all of the foregoing property, all products
thereof and all additions and accessions thereto, substitutions therefor and
replacements thereof.
(b) "LOAN AGREEMENT" means the Loan Agreement dated as of May 6, 1999 by
and among the Grantor and the Bank.
(c) "LOAN DOCUMENTS" means this Agreement, the Loan Agreement, any and all
notes evidencing the Obligations and all related documents, instruments and
agreements.
(d) "OBLIGATIONS" shall include, without limitation, all loans, advances,
debts, liabilities, obligations, covenants and duties owing to the Bank from the
Grantor under the Loan Documents and any amendments, extensions, renewals or
increases and all reasonable and necessary costs and expenses of the Bank
incurred in the documentation, negotiation, modification, enforcement,
collection or otherwise in connection with any of the foregoing, including but
not limited to reasonable attorneys' fees and expenses.
2. GRANT OF SECURITY INTEREST. To secure the Obligations, the Grantor, as
debtor, hereby assigns and grants to the Bank, as secured party, a continuing
lien on and security interest in the Collateral.
3. CHANGE IN NAME OR LOCATIONS. The Grantor hereby agrees that if the
location of any material Collateral changes from the locations listed on Exhibit
A hereto and made part hereof, or if the Grantor changes its name or form of
organization, or establishes a name in which it plans to do business that is not
listed as a tradename on Exhibit A hereto, the Grantor will as promptly as
practicable notify the Bank in writing of the additions or changes. As of the
date hereof, the Grantor's chief executive office is also shown on Exhibit A
hereto.
4. REPRESENTATIONS AND WARRANTIES. Except as disclosed in or pursuant to
the Loan Agreement, the Grantor represents, warrants and covenants to the Bank
that: (a) the Grantor has not made any prior pledge, encumbrance, assignment or
other disposition of any of the Collateral and the same are free from all
encumbrances and rights of setoff of any kind; (b) the Grantor will take all
commercially reasonable actions to defend the Collateral against all claims and
demands of all persons at any time claiming the same or any interest therein;
(c) each account and general intangible, if included in the definition of
Collateral, is genuine and enforceable in accordance with its terms and the
Grantor will take all commercially reasonable actions to defend the same against
all claims, demands, setoffs and counterclaims at any time asserted; and (d) at
the time any account or general intangible becomes subject to this Agreement,
such account or general intangible will be genuine and enforceable and no such
account or general intangible will be subject to any claim for credit, allowance
or adjustment by any account debtor or any setoff, defense or counterclaim.
2
<PAGE>
5. GRANTOR'S COVENANTS. The Grantor covenants that it shall:
(a) from time to time and at all reasonable times allow the Bank, with
reasonable prior notice, by or through any of its officers, agents, attorneys,
or accountants, to examine or inspect the Collateral, notify, at any time after
the occurrence and during the continuance of an Event of Default, account
debtors of the Bank's security interest in accounts and obtain not more than
once annually valuations and audits of the Collateral at the Grantor's expense.
The Grantor shall do, obtain, make, execute and deliver all such additional and
further acts, things, deeds, assurances and instruments as the Bank may
reasonably require to vest in and assure to the Bank its rights hereunder and in
or to the Collateral, and the proceeds thereof, including, but not limited to,
waivers from landlords, warehousemen and mortgagees and the execution of
appropriate Riders with respect to patents and copyrights if the Grantor seeks
to register its rights in any such patents or copyrights with either the United
States Patent and Trademark Office or with the United States Library of
Congress, as applicable;
(b) keep the Collateral in good order and repair at all times ordinary wear
and tear and obsolescence excepted;
(c) only use or permit the Collateral to be used in accordance with all
applicable federal, state, county and municipal laws and regulations; and
(d) have and maintain insurance at all times with respect to all Collateral
against risks of fire (including so-called extended coverage), theft, sprinkler
leakage, and other risks (including risk of flood if any Collateral is
maintained at a location in a flood hazard zone) as is customary with companies
in the same or similar businesses. The policies of all such casualty insurance
shall contain standard Lender's Loss Payable Clauses issued in favor of the Bank
under which all losses thereunder shall be paid to the Bank as the Bank's
interest may appear. Such policies shall expressly provide that the requisite
insurance cannot be altered or canceled without at least thirty (30) days prior
written notice to the Bank and shall insure the Bank notwithstanding the act or
neglect of the Grantor. Upon demand of the Bank, the Grantor shall furnish the
Bank with duplicate original policies of insurance or such other evidence of
insurance as the Bank may require. In the event of failure to obtain insurance
as herein provided, the Bank may, at its option, obtain such insurance and the
Grantor shall pay to the Bank, on demand, the cost thereof. Proceeds of
insurance may be applied by the Bank to reduce the Obligations or to repair or
replace Collateral, all in the Bank's sole discretion.
6. NEGATIVE PLEDGE; NO TRANSFER. The Grantor will not sell or offer to sell
or otherwise transfer or grant or suffer the imposition of a lien or security
interest upon the Collateral (except for sales of inventory and collections of
accounts in the Grantor's ordinary course of business and as permitted by
Sections 6.2 and 6.5 of the Loan Agreement) or use any portion thereof in any
manner inconsistent with this Agreement or with the terms and conditions of any
policy of insurance thereon.
3
<PAGE>
7. COVENANTS FOR ACCOUNTS. If accounts are included in the definition of
Collateral:
(a) The Grantor will, on reasonable demand of the Bank, make notations on
its books and records showing the security interest of the Bank and make
available to the Bank shipping and delivery receipts evidencing the shipment of
the goods that gave rise to an account, completion certificates or other proof
of the satisfactory performance of services that gave rise to an account, a copy
of the invoice for each account and copies of any written contract or order from
which an account arose. The Grantor shall promptly notify the Bank if an account
becomes evidenced or secured by an instrument or chattel paper and upon request
of the Bank, will promptly deliver any such instrument or chattel paper to the
Bank, including without limitation, any letter of credit delivered to the
Grantor to support a shipment of inventory by the Grantor.
(b) To the extent inconsistent with any information provided with respect
to the Borrowing Base (as defined in the Loan Agreement), the Grantor will
within 30 days advise the Bank whenever an account debtor refuses to retain or
returns any goods from the sale of which an account arose and will comply with
any reasonable instructions that the Bank may give regarding the sale or other
disposition of such returns.
(c) The Grantor will notify the Bank on a monthly basis of any accounts
which arise out of contracts with the United States or any department, agency or
instrumentality thereof which have been added to the Borrowing Base (as defined
in the Loan Agreement), and will, upon the request of the Bank, execute any
instruments and take any steps reasonably required by the Bank so that all
monies due and to become due under such contract shall be assigned to the Bank
and notice thereof given to and acknowledged by the appropriate government
agency or authority under the Federal Assignment of Claims Act.
(d) Upon the occurrence, and during the continuance of an Event of Default
for a period of at least sixty (60) consecutive days, the Bank may notify any
persons who are indebted to the Grantor on any Collateral consisting of accounts
or general intangibles of the assignment thereof to the Bank and may direct such
account debtors to make payment directly to the Bank of the amounts due. Upon
the occurrence, and during the continuance of an Event of Default, at the
request of the Bank, the Grantor will direct any persons who are indebted to the
Grantor on any Collateral consisting of accounts or general intangibles to make
payment directly to the Bank. The Bank is authorized to give receipts to such
account debtors for any such payments and the account debtors will be protected
in making such payments to the Bank. If an Event of Default has occurred and
remains uncured for more than sixty (60) consecutive days thereafter, upon the
written request of the Bank, the Grantor will establish with the Bank and
maintain a lockbox account ("LOCKBOX") with the Bank and a depository account(s)
("CASH COLLATERAL ACCOUNT") with the Bank subject to the provisions of this
subparagraph and such other agreements related thereto as the Bank may require,
whereupon all collections of accounts shall be paid directly from account
debtors into the Lockbox from which funds shall be transferred to the Cash
Collateral Account, and from which funds shall be applied by the Bank, daily, to
reduce the outstanding Obligations.
4
<PAGE>
8. FURTHER ASSURANCES. At the request of the Bank, the Grantor will join
with the Bank in executing one or more financing, continuation or amendment
statements pursuant to the Uniform Commercial Code in form satisfactory to the
Bank and will pay the cost of preparing and filing the same in all jurisdictions
in which such filing is reasonably deemed by the Bank to be necessary or
desirable. A carbon, photographic or other copy of this Agreement or of a UCC-1
financing statement may be filed as and in lieu of a UCC-1 financing statement.
9. EVENTS OF DEFAULT. The Grantor shall, at the option of the Bank, be in
default under this Agreement upon the happening of any of the following events
or conditions (each, an "EVENT OF DEFAULT"): (a) any Event of Default (as
defined in any of the Loan Documents) which has not been cured within any time
period applicable thereto; (b) failure by the Grantor to perform any of its
obligations under this Agreement which failure has not been cured within ten
days after written notice to the Grantor; (c) material falsity, material
inaccuracy or material breach by the Grantor of any written warranty,
representation or statement made or furnished to the Bank by or on behalf of the
Grantor; (d) an uninsured material loss, theft, damage, or destruction to any of
the Collateral, or the entry of any judgment in excess of $50,000 against the
Grantor or any lien against or the making of any levy, seizure or attachment of
or on the Collateral, other than as permitted under the Loan Agreement; (e)
except as disclosed in the Addendum to or as permitted under the Loan Agreement,
the failure of the Bank to have a perfected first priority security interest in
the Collateral (excluding perfection of security interests in vehicles or other
mobile equipment covered by a certificate of title, the perfection of which
requires notation of such security interest on, or physical delivery of, such
certificate), unless such failure results from the negligence of the Bank; or
(f) any indication or evidence received by the Bank that the Grantor may have
directly or indirectly been engaged in any type of activity which, in the Bank's
reasonable discretion might result in the forfeiture of any material property of
the Grantor to any governmental entity, federal, state or local.
10. REMEDIES. Upon the occurrence of any such Event of Default and at any
time thereafter, the Bank may declare all Obligations secured hereby immediately
due and payable upon written notice to Grantor and shall have, in addition to
any remedies provided herein or by any applicable law or in equity, all the
remedies of a secured party under the Uniform Commercial Code.
11. POWER OF ATTORNEY. (a) The Grantor does hereby make, constitute and
appoint any officer or agent of the Bank as the Grantor's true and lawful
attorney-in-fact, with power to endorse the name of the Grantor or any of the
Grantor's officers or agents upon any notes, checks, drafts, money orders, or
other instruments of payment or Collateral that may come into the possession of
the Bank in full or part payment of any amounts owing to the Bank; granting to
the Grantor's said attorney full power to do any and all things necessary to be
done in and about the premises as fully and with the same effect as the Grantor
might or could do, including the right to sign, for the Grantor, UCC-1 financing
statements and to sue for, compromise, settle and release all claims and
disputes with respect to, the Collateral. The Grantor hereby ratifies all that
5
<PAGE>
said attorney shall lawfully do or cause to be done by virtue hereof. This power
of attorney is coupled with an interest, and is irrevocable for the life of this
Security Agreement and the Loan Documents, and until all the Obligations are
satisfied in full.
(b) Notwithstanding anything in the Loan Documents to the contrary, the
Bank will not exercise any rights under the general power of attorney provided
in Section 11(a) unless an Event of Default has occurred and is continuing.
12. PAYMENT OF EXPENSES. In the event that the Grantor fails to do so on a
timely basis, the Bank may, at its option, discharge taxes, liens, security
interests or such other encumbrances as may attach to the Collateral, may pay
for required insurance on the Collateral and may pay for the maintenance,
appraisal or reappraisal, and preservation of the Collateral, as reasonably
determined by the Bank to be necessary. The Grantor will reimburse the Bank on
demand for any payment so made or any expense incurred by the Bank pursuant to
the foregoing authorization, and the Collateral also will secure any advances or
payments so made or expenses so incurred by the Bank.
13. NOTICES. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder must be in writing and will be
effective upon receipt if delivered personally to such party, or if sent by
facsimile transmission with confirmation of delivery, or by nationally
recognized overnight courier service, to the address set forth above or to such
other address as any party may give to the other in writing for such purpose.
14. PRESERVATION OF RIGHTS. No delay or omission on the part of the Bank to
exercise any right or power arising hereunder will impair any such right or
power or be considered a waiver of any such right or power or any acquiescence
therein, nor will the action or inaction of the Bank impair any right or power
arising hereunder. The Bank's rights and remedies hereunder are cumulative and
not exclusive of any other rights or remedies which the Bank may have under
other agreements, at law or in equity.
15. ILLEGALITY. In case any one or more of the provisions contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
16. CHANGES IN WRITING. No modification, amendment or waiver of any
provision of this Agreement nor consent to any departure by the Grantor
therefrom, will in any event be effective unless the same is in writing and
signed by the Bank, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice to or
demand on the Grantor in any case will entitle the Grantor to any other or
further notice or demand in the same, similar or other circumstance.
6
<PAGE>
17. ENTIRE AGREEMENT. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, between
the parties with respect to the subject matter hereof.
18. COUNTERPARTS. This Agreement may be signed in any number of counterpart
copies and by the parties hereto on separate counterparts, but all such copies
shall constitute one and the same instrument.
19. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and inure
to the benefit of the Grantor and the Bank and their respective heirs,
executors, administrators, successors and assigns; provided, however, that the
Grantor may not assign this Agreement in whole or in part without the prior
written consent of the Bank and the Bank at any time may assign this Agreement
in whole or in part upon written notice to Grantor.
20. INTERPRETATION. In this Agreement, unless the Bank and the Grantor
otherwise agree in writing, the singular includes the plural and the plural the
singular; words importing any gender include the other genders; references to
statutes are to be construed as including all statutory provisions
consolidating, amending or replacing the statute referred to; the word "or"
shall be deemed to include "and/or", the words "including", "includes" and
"include" shall be deemed to be followed by the words "without limitation";
references to articles, sections (or subdivisions of sections) or exhibits are
to those of this Agreement unless otherwise indicated. Section headings in this
Agreement are included for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose. If this Agreement is
executed by more than one Grantor, the obligations of such persons or entities
will be joint and several.
21. INDEMNITY. The Grantor agrees to indemnify each of the Bank, its
directors, officers and employees and each legal entity, if any, who controls
the Bank (the "INDEMNIFIED PARTIES") and to hold each Indemnified Party harmless
from and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees of counsel with whom any
Indemnified Party may consult and reasonable expenses of litigation or
preparation therefor) which any Indemnified Party may incur or which may be
asserted against any Indemnified Party by any third person, entity or
governmental authority as a result of the execution of or performance under this
Agreement; provided, however, that the foregoing indemnity agreement shall not
apply to claims, damages, losses, liabilities and expenses solely attributable
to an Indemnified Party's gross negligence or willful misconduct. The indemnity
agreement contained in this Section shall survive the termination of this
Agreement. The Grantor may participate at its expense in the defense of any such
claim.
22. GOVERNING LAW AND JURISDICTION. This Agreement has been delivered to
and accepted by the Bank and will be deemed to be made in the Commonwealth of
Pennsylvania. THIS AGREEMENT WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES
OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH
OF
7
<PAGE>
PENNSYLVANIA, EXCEPT THAT THE LAWS OF THE STATE WHERE ANY COLLATERAL IS LOCATED
(IF DIFFERENT FROM THE COMMONWEALTH OF PENNSYLVANIA) SHALL GOVERN THE CREATION,
PERFECTION AND FORECLOSURE OF THE LIENS CREATED HEREUNDER ON SUCH PROPERTY OR
ANY INTEREST THEREIN. The Grantor hereby irrevocably consents to the exclusive
jurisdiction of any state or federal court for Allegheny County or the Western
District of Pennsylvania, as the case may be, and consents that all service of
process be sent by nationally recognized overnight courier service directed to
the Grantor at the Grantor's address set forth herein and service so made will
be deemed to be completed on the business day after deposit with such courier;
provided that nothing contained in this Agreement will prevent the Bank from
bringing any action, enforcing any award or judgment or exercising any rights
against the Grantor individually, against any security or against any property
of the Grantor within any other county, state or other foreign or domestic
jurisdiction. The Bank and the Grantor agree that the venue provided above is
the most convenient forum for both the Bank and the Grantor. The Grantor waives
any objection to venue and any objection based on a more convenient forum in any
action instituted under this Agreement.
23. WAIVER OF JURY TRIAL. EACH OF THE GRANTOR AND THE BANK IRREVOCABLY
WAIVES ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT, ANY DOCUMENTS
EXECUTED IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED IN
ANY OF SUCH DOCUMENTS. THE GRANTOR AND THE BANK ACKNOWLEDGE THAT THE FOREGOING
WAIVER IS KNOWING AND VOLUNTARY.
[Signature Page to Follow]
8
<PAGE>
WITNESS the due execution of this Security Agreement as a document under
seal, as of the date first written above.
INFORMAX, INC.
By: /s/ Alex Titomirov
------------------------------------
(SEAL)
Print Name: Alex Titomirov
----------------------------
Title: Chief Executive Officer
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Katharine Kappler
-------------------------------------
(SEAL)
Print Name: Katharine Kappler
-----------------------------
Title: Vice President
----------------------------------
9
<PAGE>
EXHIBIT A
TO SECURITY AGREEMENT
Address of Grantor's chief executive office, including the County:
6110 Executive Boulevard Montgomery County, Maryland
N. Bethesda, MD 20852
Address for books and records, if different:
None
Addresses of other Collateral locations, including Counties and name and address
of landlord or owner if location is not owned by the Grantor:
Name and Address of Landlord:
Other names or tradenames now or formerly used by the Grantor:
<PAGE>
EXECUTION COPY
RIDER TO SECURITY AGREEMENT -
TRADEMARKS
THIS RIDER TO SECURITY AGREEMENT ("RIDER") is executed of May 6, 1999,
by and between INFORMAX, INC., a Delaware corporation (the "GRANTOR"), with an
address at 6110 Executive Boulevard, N. Bethesda, MD 20852, and PNC BANK,
NATIONAL ASSOCIATION (the "BANK"). This Rider is incorporated into and made part
of that certain Security Agreement ("SECURITY AGREEMENT") between the Grantor
and the Bank dated May 6, 1999, and also unto certain other financing documents
and security agreements executed by and between the Grantor and the Bank or by
and between the Borrower (as defined in the Security Agreement) and the Bank
(all such documents including this Rider being collectively referred to as "LOAN
DOCUMENTS"). All capitalized terms not otherwise defined in this Rider shall
have the same meanings ascribed to such terms in the other Loan Documents.
Schedule A attached hereto and made part hereof contains a list of all
trademarks and service marks for which Grantor has obtained a U.S. registration
or for which an application for such registration is pending (all such marks, in
connection with the relevant goods and/or services, hereinafter referred to as a
the "TRADEMARKS").
The Banks desires to acquire a lien and security interest on the
Trademarks and the registration thereof, together with all the goodwill of the
Grantor associated therewith and represented thereby, as security for all of the
OBLIGATIONS (as defined in the Security Agreement) to the Bank, and the Bank
desires to have its security interest in such Trademarks confirmed by a document
identifying same and in such form that it may be recorded in the United States
Patent and Trademark Office.
NOW, THEREFORE, with the foregoing background deemed incorporated by
reference and made part hereof, the parties hereto, intending to be legally
bound hereby, covenant and agree as follows:
1. GRANT OF SECURITY INTEREST. In consideration of and pursuant to the
terms of the Loan Documents, and for other good, valuable and sufficient
consideration, the receipt of which is hereby acknowledged, and to secure the
Obligations, the Grantor grants a lien and security interest to the Bank in all
its present and future right, title and interest in and to the Trademarks,
together with all the goodwill of the Grantor associated with and represented by
the Trademarks, and the registration thereof and the right (but not the
obligation) to sue for past, present and future infringements, and the proceeds
thereof, including, without limitation, license royalties and proceeds of
infringement suits.
2. REPRESENTATION AND WARRANTIES. Subject to the disclosures set forth
pursuant to the Loan Agreement of even date by and between the Grantor and the
Bank, the Grantor represents, warrants and covenants that: (a) it has the right
to use the Trademark; (b) the Grantor is the sole and exclusive owner of the
entire and unencumbered right, title and interest in and to each of the
Trademarks, and each of the Trademarks is free and clear of any client, charges,
<PAGE>
and encumbrances, including, without limitation, pledges, assignments, licenses
and covenants by the Grantor not to sue third persons; (c) the Grantor has the
unqualified right to enter into this Rider and perform its terms: (d) the
Grantor has used, and will continue to use for the duration of this Rider,
proper notice, as permitted by 15 U.S.C. SS 1051-1127 in connection with its use
of the registered Trademarks; and (e) the Grantor has used, and will continue to
use for the duration of this Rider, consistent standards of quality in products
leased or sold under the Trademarks and hereby grants to the Bank and its
employees and agents the right to visit the Grantor's locations which lease,
sell, or store products under any of the Trademarks and to inspect the products
and quality control records relating thereto at reasonable times during regular
business hours to ensure the Grantor's compliance with this paragraph 2(c).
3. COVENANTS. The Grantor further covenants that: (a) Until all of the
Obligations have been satisfied in full, the Grantor will not enter into any
agreement, including without limitation, license agreements, which are
inconsistent with the Grantor's obligations under this Rider, and (b) If the
Grantor acquires rights to any new Trademarks, the provisions of this Rider
shall automatically apply thereto and the Grantor shall give the Bank prompt
written notice thereof along with an amended Schedule A; provided, however, that
notwithstanding anything to the contrary contained in this Agreement, the
Grantor shall have the right to enter into agreements in the ordinary course of
business with respect to the Trademarks.
4. EXCLUSIVE USE OF TRADEMARKS. So long as this Rider is in effect and
so long as the Grantor has not received notice from the Bank that an Event of
Default has occurred under the Loan Documents and that the Bank has elected to
exercise its rights to assignment hereunder, the Grantor shall continue to own
and to have the exclusive right to use the Trademarks and the Bank shall have no
right to use the Trademarks or issue any exclusive or non-exclusive license with
respect thereto, or assign, pledge or otherwise transfer title in the Trademarks
to any one else.
5. NEGATIVE PLEDGE. The Grantor agrees not to sell, assign or further
encumber its rights and interest in the Trademarks, other than licensing in the
ordinary course of business of products subject to the Trademarks, without prior
written consent of the Bank.
6. REMEDIES UPON DEFAULT. (a) Anything herein contained to the contrary
notwithstanding, if and while the Grantor shall be in default hereunder or an
Event of Default exists under the Loan Documents, the Grantor hereby covenants
and agrees that the Bank, as the holder of a security interest under the Uniform
Commercial Code, as now or hereafter in effect in Pennsylvania, may take such
action permitted under the Loan Documents or permitted by law, in its exclusive
discretion, to foreclose upon the Trademarks covered hereby.
(b) For such purposes, and in the event of the Grantor's default
hereunder or an Event of Default under the Loan Documents and while such default
or Event of Default exists, the Grantor hereby authorizes and empowers the Bank
to make, constitute and appoint any officer or agent of the Bank as the Bank may
select, in its exclusive discretion, as the Grantor's true and
-2-
<PAGE>
lawful attorney-in-fact, with the power to endorse the Grantor's name on all
applications, documents, papers and instruments necessary for the Bank to use
the Trademarks or to grant or issue any exclusive or non-exclusive license under
the Trademarks to anyone else, or necessary for the Bank to assign, pledge,
convey or otherwise transfer title in or dispose of the Trademarks to anyone
else. The Grantor hereby ratifies all that such attorney shall lawfully do or
cause to be done by virtue hereof, except for the gross negligence or willful
misconduct of such attorney. This power of attorney shall be irrevocable for the
life of this Rider and the Loan Documents, and until all the Obligations are
satisfied in full.
(c) The Grantor expressly acknowledges that this Rider shall be
recorded by the Bank with the Patent and Trademark Office in Washington, D.C.
Contemporaneously herewith, the Grantor shall also execute and deliver to the
Bank such documents as the Bank shall reasonably request to conditionally assign
all rights in the Trademarks to the Bank, which documents shall be held by the
Bank until the occurrence of an Event of Default hereunder or under the Loan
Documents. After such occurrence, the Bank may, at its sole option, record such
escrowed documents with the Patent and Trademark Office.
7. PROSECUTION OF TRADEMARK APPLICATIONS. (a) Subject to the terms of
the Security Agreement, the Grantor shall have the duty to prosecute diligently
any trademark application with respect to the Trademarks pending as of the date
of this Rider or thereafter, until the Obligations shall have been satisfied in
full, to preserve and maintain all rights in the Trademarks, and upon reasonable
request of the Bank, the Grantor shall make federal application on registrable
but unregistered material trademarks belonging to the Grantor. Any reasonable
expenses incurred in connection with such applications shall be borne by the
Grantor. Unless the Grantor discontinues the sale of the goods offered in
connection with a Trademark, the Grantor shall not abandon any Trademark without
the written consent of the Bank.
(b) The Grantor shall have the right to bring suit in its own name to
enforce the Trademarks, in which event the Bank may, if the Grantor deems it
necessary or after an Event of Default under the Loan Documents, be joined as a
nominal party to such suit if the Bank shall have been satisfied that it is not
thereby incurring any risk of liability because of such joinder. The Grantor
shall promptly, upon demand, reimburse and indemnify the Bank for all damages,
reasonable costs and reasonable expenses, including attorneys' fees, incurred by
the Bank in the fulfillment of the provisions of this paragraph.
8. SUBJECT TO SECURITY AGREEMENT. This Rider shall be subject to the
terms, provisions, and conditions set forth in the Security Agreement and may
not be modified without the written consent of the party against whom
enforcement is being sought.
9. INCONSISTENT WITH SECURITY AGREEMENT. All rights and remedies
herein granted to the Bank shall be in addition to any rights and remedies
granted to the Bank under the Loan Documents. In the event of an inconsistency
between this Rider and the Security
-3-
<PAGE>
Agreement, the language of the Security Agreement shall control. The terms and
conditions of the Security Agreement are hereby incorporated herein by
reference.
10. TERMINATION OF AGREEMENT. Upon payment and performance of all
Obligations under the Loan Documents, the Bank shall immediately execute and
deliver to the Grantor all documents, and take any and all actions, necessary to
terminate the Bank's security interest in the Trademarks.
11. FEES AND EXPENSES. Any and all reasonable fees, costs and expenses,
of whatever kind or nature, including the reasonable attorney's fees and legal
expenses incurred by the Bank in connection with the preparation of this Rider
and all other documents relating hereto and the consummation of this
transaction, then filing or recording of any documents (including all taxes in
connection therewith) in public offices, the payment or discharge of any taxes,
reasonable counsel fees, maintenance fees, encumbrances or costs otherwise
incurred in protecting, maintaining, preserving the Trademarks, or in defending
or prosecuting any actions or proceedings arising out of or related to the
Trademarks, in each case in accordance with the terms of this Rider, shall be
borne and paid by the Grantor on demand by the Bank and until so paid shall be
added to the principal amount of the Obligations to the Bank and shall bear
interest at the contract rate therefor.
12. ADDITIONAL REMEDIES. Upon the occurrence of an Event of Default
under the Loan Documents, the Bank may, without any obligation to do so,
complete any obligation of the Grantor hereunder, in the Grantor's name or in
the Bank's name, but at the Grantor's expense, and the Grantor hereby agrees to
reimburse the Bank in full for all reasonable expenses, including reasonable
attorney's fees, incurred by the Bank in protecting, defending and maintaining
the Trademarks.
13. GOVERNING LAW. THIS RIDER WILL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA, EXCLUDING ITS CONFLICT OF LAW RULES, EXCEPT THAT
THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA SHALL GOVERN TO THE EXTENT
APPLICABLE.
14. COUNTERPARTS. This Rider may be signed in any number of counterpart
copies and by the parties hereto on separate counterparts, but all such copies
shall constitute one and the same instrument.
[This space intentionally left blank]
-4-
<PAGE>
WITNESS the due execution of this Rider to Security Agreement -
Trademarks as a document under seal, as of the date first written above, with
the intent to be legally bound hereby.
ATTEST: INFORMAX, INC.
/s/ Joseph E. Lehnen By: /s/ Alex Titomirov
--------------------------------- -----------------------------------
(SEAL)
Print Name: Joseph E. Lehnen Print Name: Alex Titomirov
---------------------- ---------------------------
Title: President / CEO
--------------------------------
PNC BANK, NATIONAL
ASSOCIATION
By: /s/ Katharine Kappler
-----------------------------------
Print Name: Katharine Kappler
---------------------------
Title: Vice President
--------------------------------
-5-
<PAGE>
SCHEDULE A TO RIDER TO SECURITY AGREEMENT - TRADEMARKS
APPLICATION OR REGISTRATION
TRADEMARK REGISTRATION NO. COUNTRY OR FILING DATE
--------- ---------------- ------- --------------
ALIGNX (Stylized) 75/565,659 US 08-Oct-1998
BIOPLOT (Stylized) 75/565,658 US 08-Oct-1998
CONTIGEXPRESS 75/565,657 US 08-Oct-1998
(Stylized)
INFORMAX (& Design) 2,115,618 US 25-Nov-1997
SOFTWARE SOLUTION 75/565,656 US 08-Oct-1998
FOR BIO-MEDICINE
(SSBM) (Stylized)
VECTOR NTI 1,923,416 US 03-Oct-1995
VECTOR NTI SUITE 75/565,655 US 08-Oct-1998
(Stylized)
VECTOR PC 1,776,118 US 08-Jun-1993
<PAGE>
TRADEMARK ASSIGNMENT
WHEREAS, INFORMAX, INC. (the "GRANTOR") is the owner of the entire
right, title and interest in and to the United States trademarks and
registrations listed on Schedule A attached hereto and made a part hereof, the
inventions described therein and all rights associated therewith (collectively,
the "TRADEMARKS"), which are registered in the United States Patent and
Trademark Office or which are the subject of pending applications in the United
States Patent and Trademark Office; and
WHEREAS, PNC BANK, NATIONAL ASSOCIATION, having a place of business at
USX Tower, 600 Grant Street, 29th Floor, MS# P6-PUSX-29-4. Pittsburgh, PA.
15219, identified as the "BANK" under that certain Rider to Security Agreement -
Trademarks (the "RIDER") of even date herewith (the "GRANTEE") is desirous of
acquiring said Trademarks; and
WHEREAS, the Grantee has a security interest in the assets of the
Grantor adequate to carry on the business of the Grantor; and
WHEREAS, the Rider provides that this Assignment shall become
effective upon the occurrence of an "EVENT OF DEFAULT" as defined in the
Security Agreement of even date herewith by and between the Grantor and the
Grantee.
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, and intending to be legally bound hereby, the Grantor,
its successors and assigns, subject to the limitation in the paragraph
immediately following, does hereby transfer, assign and set over unto Grantee,
its successors, transferees and assigns, all of its present and future right,
title and interest in and to the Trademarks, the goodwill of the business
associated with such Trademarks and all proceeds thereof and all rights and
proceeds associated therewith.
This Trademark Assignment shall be effective only upon certification
below by an officer of the Grantee that (i) an Event of Default has occurred,
and (ii) the Grantee has elected to take possession of the Trademarks.
IN WITNESS WHEREOF, the undersigned has caused this Trademark
Assignment to be executed by its duly authorized officer on this 6 day of May,
1999.
ATTEST: INFORMAX, INC.
/s/ Joseph E. Lehnen By: /s/ Alex Titomirov
--------------------------------- -----------------------------------
(SEAL)
Print Name: Joseph E. Lehnen Print Name: Alex Titomirov
---------------------- ---------------------------
Title: President / CEO
--------------------------------
I hereby certify on behalf of PNC Bank, National Association, that (i)
an "Event of Default" as defined in the aforementioned Security Agreement has
occurred as of ______________, and (ii) the Bank has elected to take possession
of the Trademarks and is recording this Assignment in the United States Patented
Trademark Office.
By:
-----------------------------------
Title:
--------------------------------
<PAGE>
SCHEDULE A TO TRADEMARKS ASSIGNMENT
APPLICATION OR REGISTRATION
TRADEMARK REGISTRATION NO. COUNTRY OR FILING DATE
--------- ---------------- ------- --------------
ALIGNX (Stylized) 75/565,659 US 08-Oct-1998
BIOPLOT (Stylized) 75/565,658 US 08-Oct-1998
CONTIGEXPRESS 75/565,657 US 08-Oct-1998
(Stylized)
INFORMAX (& Design) 2,115,618 US 25-Nov-1997
SOFTWARE SOLUTION 75/565,656 US 08-Oct-1998
FOR BIO-MEDICINE
(SSBM) (Stylized)
VECTOR NTI 1,923,416 US 03-Oct-1995
VECTOR NTI SUITE 75/565,655 US 08-Oct-1998
(Stylized)
VECTOR PC 1,776,118 US 08-Jun-1993
