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Exhibit
10.8
INTELLECTUAL PROPERTY
SECURITY AGREEMENT
THIS INTELLECTUAL PROPERTY
SECURITY AGREEMENT, dated as of December 10, 2007 is made by
Biovest International, Inc., a Delaware corporation (“
Grantor ”), in favor of LV Administrative Services,
Inc., as agent (“ Agent ”).
WITNESSETH:
WHEREAS, pursuant to
(i) that certain Note Purchase Agreement dated as of the date
hereof by and between VALENS U.S. SPV I, LLC (“ Valens
U.S. ”) and the Grantor (as amended, restated, modified
and/or supplemented from time to time, the “ Valens U.S.
Purchase Agreement ”) and (ii) that certain Note
Purchase Agreement dated as of the date hereof by and between
VALENS OFFSHORE SPV II, CORP. (“ Valens Offshore
”; and together with Agent and Valens U.S., the “
Creditor Parties ”) and the Grantor (as amended,
restated, modified and/or supplemented from time to time, the
“ Valens Offshore Purchase Agreement ” and
together with the Valens U.S. Purchase Agreement, each a “
Purchase Agreement ” and collectively the “
Purchase Agreements ”), Creditor Parties provide or
will provide certain financial accommodations to the Grantor;
and
WHEREAS, Creditor Parties are
willing to make the Loans as provided for in the Purchase
Agreements, but only upon the condition, among others, that Grantor
shall have executed and delivered to Agent, for the ratable benefit
of Creditor Parties, this Intellectual Property Security
Agreement;
NOW, THEREFORE, in
consideration of the premises and mutual covenants herein contained
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor hereby agrees
as follows:
1. DEFINED TERMS . All
capitalized terms used but not otherwise defined herein have the
meanings given to them in the Purchase Agreements.
2. GRANT OF SECURITY
INTEREST IN INTELLECTUAL PROPERTY COLLATERAL . To secure the
complete and timely payment of all the Obligations of Grantor now
or hereafter existing from time to time, Grantor hereby pledges and
grants to Agent, for the ratable benefit of Creditor Parties, a
continuing first priority security interest in all of
Grantor’s right, title and interest in, to and under the
following, whether presently existing or hereafter created or
acquired (collectively, the “ Intellectual Property
Collateral ”):
(a) all of its Patents and
Patent Licenses to which it is a party including those referred to
on Schedule I hereto;
(b) all of its Trademarks and
Trademark Licenses to which it is a party including those referred
to on Schedule II hereto;
(c) all of its Copyrights and
Copyright Licenses to which it is a party including those referred
to on Schedule III hereto;
(d) all reissues,
continuations or extensions of the foregoing;
(e) all goodwill of the
business connected with the use of, and symbolized by, each Patent,
each Patent License, each Trademark, each Trademark License, each
Copyright and each Copyright License; and
(f) all products and proceeds
of the foregoing, including, without limitation, any claim by
Grantor against third parties for past, present or future
(i) infringement or dilution of any Patent or Patent licensed
under any Patent License, (ii) injury to the goodwill
associated with any Patent or any Patent licensed under any Patent
License, (iii) infringement or dilution of any Trademark or
Trademark licensed under any Trademark License, (iv) injury to
the goodwill associated with any Trademark or any Trademark
licensed under any Trademark License, (v) infringement or
dilution of any Copyright or Copyright licensed under any Copyright
License, and (vi) injury to the goodwill associated with any
Copyright or any Copyright licensed under any Copyright
License.
3. REPRESENTATIONS AND
WARRANTIES . Grantor represents and warrants that Grantor does
not have any interest in, or title to, any Patent, Trademark or
Copyright except as set forth in Schedule I, Schedule II and
Schedule III, respectively, hereto. This Intellectual Property
Security Agreement is effective to create a valid and continuing
Lien on and, upon the filing hereof with the United States Patent
and Trademark Office and the United States Copyright Office,
perfected security interests in favor of Agent, for the ratable
benefit of Creditor Parties, in all of Grantor’s Patents,
Trademarks and Copyrights and such perfected security interests are
enforceable as such as against any and all creditors of, and
purchasers from, Grantor. Upon filing of this Intellectual Property
Security Agreement with the United States Patent and Trademark
Office and the United States Copyright Office and the filing of
appropriate financing statements, all action necessary or desirable
to protect and perfect Agent’s Lien on Grantor’s
Patents, Trademarks and Copyrights shall have been duly
taken.
4. COVENANTS . Grantor
covenants and agrees with Agent that from and after the date of
this Intellectual Property Security Agreement and until the
Termination Date:
(a) Grantor shall notify
Agent immediately if it knows or has reason to know that any
application or registration relating to any Patent, Trademark or
Copyright (now or hereafter existing) may become abandoned or
dedicated, or of any adverse determination or development
(including the institution of, or any such determination or
development in, any proceeding in the United States Patent and
Trademark Office, the United States Copyright Office or any court)
regarding Grantor’s ownership of any Patent, Trademark or
Copyright, its right to register the same, or to keep and maintain
the same.
(b) In no event shall
Grantor, either directly or through any agent, employee, licensee
or designee, file an application for the registration of any
Patent, Trademark or Copyright with the United States Patent and
Trademark Office, the United States Copyright Office or any similar
office or agency without giving Agent prior written notice thereof,
and, upon request of Agent, Grantor shall execute and deliver a
supplement hereto (in form and substance satisfactory to Agent) to
evidence Agent’ Lien on such Patent, Trademark or Copyright,
and the General Intangibles of Grantor relating thereto or
represented thereby.
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(c) Unless an application or
registration is not material to Grantor’s business as
determined by Grantor in the exercise of its reasonable business
judgment, Grantor shall take all actions necessary or requested by
Agent to maintain and pursue each application, to obtain the
relevant registration and to maintain the registration of each of
the Patents or Trademarks (now or hereafter existing), including
the filing of applications for renewal, affidavits of use,
affidavits of noncontestability and opposition and interference and
cancellation proceedings.
(d) In the event that any of
the Intellectual Property Collateral is infringed upon, or
misappropriated or diluted by a third party, Grantor shall notify
Agent promptly after Grantor learns thereof. Grantor shall, unless
it shall reasonably determine that such Intellectual Property
Collateral is in no way material to the conduct of its business or
operations, promptly sue for infringement, misappropriation or
dilution and to recover any and all damages for such infringement,
misappropriation or dilution, and shall take such other actions as
Agent shall deem appropriate under the circumstances to protect
such Intellectual Property Collateral.
5. SECURITY AGREEMENT
. The security interests granted pursuant to
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