|
Exhibit
10.7
SECURITY
AGREEMENT
THIS SECURITY AGREEMENT is
made as of the 28 th day
of March, 2008 between Drug Royalty LP2, a limited partnership
organized and existing under the laws of the State of Delaware
(“ Secured Party ”), and Epoch Biosciences,
Inc., a corporation organized and existing under the laws of the
State of Delaware (“ Debtor ”), with its
principal executive offices at 10398 Pacific Center Court, San
Diego, CA 92121.
WHEREAS Secured Party and
Debtor have entered into a Royalty Interest Assignment Agreement
dated as of the date hereof (as such agreement may be amended or
supplemented from time to time, the “ Assignment
Agreement ”);
AND WHEREAS this Agreement is
entered into pursuant to Section 6.2(c) of the Assignment
Agreement;
NOW THEREFORE in
consideration of the respective covenants, promises and agreements
of the parties herein contained and other good and valuable
consideration (the receipt and sufficiency of which are hereby
acknowledged by each of the parties), the parties agree as
follows:
ARTICLE 1
INTERPRETATION
Capitalized terms that are
defined in the Assignment Agreement and not otherwise defined
herein have, unless the context otherwise requires, the respective
meanings given to them in the Assignment Agreement and, in
addition, the following terms have the following meanings (and
grammatical variations of such terms shall have corresponding
meanings):
“ Agreement
” means this Security Agreement, the recitals, all attached
exhibits and schedules, and any agreement, exhibit or schedule
supplementing or amending this Agreement. All uses of the words
“hereto”, “herein,” “hereof,”
“hereby” and “hereunder” and similar
expressions refer to this Agreement and not to any particular
Section or portion of it;
“ Assignment
Agreement ” has the meaning set out in the
recitals;
“ Collateral
” means the License Agreement, the Know-How and the Patents
(whether now or hereafter acquired) and includes Proceeds therefrom
and, where the context permits, any reference to “
Collateral ” shall be deemed to be a reference to
“ Collateral or any part thereof ”;
“ Event of
Default ” under this Agreement means the occurrence of
any one or more of the following events:
| |
(a) |
the failure of Debtor to pay or perform any monetary
Obligations within 5 business days of the date on which such
Obligations are due or payable; |
| |
(b) |
the failure to perform in any material respect any non-monetary
Obligation or covenant under this Agreement or the Assignment
Agreement and such failure shall continue unremedied for a period
of 5 business days after receipt of notice thereof from Secured
Party; |
| |
(c) |
any breach in any material respect of any representation or
warranty made by Debtor hereunder or in the Assignment Agreement;
or |
| |
(d) |
the cessation or threatened cessation by Debtor of its business
generally or the admission by Debtor of its inability to, or, its
actual failure to, pay its debts generally, including circumstances
where Debtor (i) is adjudged bankrupt or insolvent,
(ii) makes an assignment in bankruptcy or otherwise for the
benefit of creditors, (iii) files a petition or proposal under
bankruptcy, insolvency or similar legislation, or (iv) has
instituted against it proceedings under bankruptcy, insolvency or
similar legislation including for the appointment of a receiver or
trustee; |
“ Financing
Statement ” has the meaning set out in
Section 3.1(f);
“ including
”, when used herein or in any Closing Document, means
“including without limitation” and shall not be
construed to limit any general statement which it follows to the
specific or similar items or matters immediately following
it;
“ Know-How
” means Licensed Know-How, as that term is defined in the
License Agreement;
“ License
Agreement ” means the Second Amended and Restated
Collaboration, License and Supply Agreement between Debtor and
Applera Corporation dated as of August 17, 2000, as amended by
the First Side Agreement dated October 31, 2001, the Amendment
No. 1 to the Second Amended and Restated Collaboration,
License and Supply Agreement dated July 26, 2002 and Amendment
No. 2 to the Second Amended and Restated Collaboration,
License and Supply Agreement dated as of December 31, 2005, as
it may be further amended from time to time after the date
hereof;
“ Obligations
” means all indebtedness, liabilities and obligations
(whether direct, indirect, absolute, contingent or otherwise) of
Debtor to Secured Party arising pursuant to the Assignment
Agreement or arising pursuant hereto upon the occurrence of an
Event of Default;
- 2 -
“ Patents
” means the Licensed Patents and Related Patents, as those
terms are defined in the License Agreement, including those Patents
and patent applications set forth on Exhibit A attached
hereto;
“ Proceeds
” means property in any form derived, directly or indirectly,
from any dealing with the Collateral or other Proceeds (together
with any reissue, continuation, continuation-in-part or extension
of the Patents) and includes any accounts arising from any sale,
transfer, license, lease or other dealing in any of the Collateral
and any payment representing indemnity or compensation for loss or
damage to the Collateral or other Proceeds, including insurance
proceeds and proceeds (as such term is defined in the
UCC);
“ Security
Interest ” has the meaning set out in
Section 2.1;
“ Transaction
Documents ” has the meaning set out in
Section 2.2;
“ UCC ”
means the Uniform Commercial Code as in effect from time to time in
the State of New York or any legislation that may be substituted
therefor (as any such substituted legislation may be amended from
time to time); provided that, if, with respect to any
Financing Statement or by reason of any provisions of law, the
perfection or the effect of perfection or non-perfection of the
Security Interest granted pursuant to the Assignment Agreement is
governed by the Uniform Commercial Code as in effect in a
jurisdiction of the United States other than New York, then
“UCC” means the Uniform Commercial Code as in effect
from time to time in such other jurisdiction for purposes of the
provisions of the Assignment Agreement and any Financing Statement
relating to such perfection or effect of perfection or
non-perfection; and
“ US PTO ”
means the United States Patent and Trademark Office and any
successor office.
| 1.2 |
Meanings under the UCC |
All terms used herein and not
otherwise defined pursuant to Section 1.1 (including any
definitions incorporated herein by reference to the Assignment
Agreement) and which are defined in the UCC shall, unless the
context otherwise requires, have the respective meanings assigned
to such terms in the UCC.
| 1.3 |
Sections and Headings |
The division of this
Agreement into Articles and Sections and the insertion of headings
are for convenience of reference only and shall not affect the
interpretation of this Agreement.
- 3 -
This Agreement shall be
governed by and construed, interpreted and enforced in accordance
with, the laws of the State of New York and the federal laws of the
United States, without giving effect to the principles of conflicts
of law thereof except as set forth in Section 5-1401 of the
New York General Obligations Law.
EACH PARTY HEREBY AGREES NOT
TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND
WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH
RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS AGREEMENT,
OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
HEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY
AND VOLUNTARILY BY EACH PARTY, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO
A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH PARTY IS HEREBY
AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER.
| 1.5 |
Consent to Jurisdiction |
Each of Debtor and Secured
Party (a) hereby irrevocably submits to the jurisdiction of
the United States District Court for the Southern District of New
York for the purposes of any suit, action or proceeding arising out
of or relating to this Agreement and to the extent that such United
States district court lacks jurisdiction despite the consent
herein, to the jurisdiction of the courts of the State of New York
sitting in New York County and the appellate courts therefrom, and
(b) hereby waives, and agrees not to assert in any such suit,
action or proceeding, any claim that it is not personally subject
to the jurisdiction of such court, that the suit, action or
proceeding is brought in an inconvenient forum or that the venue of
the suit, action or proceeding is improper. Each of Debtor and
Secured Party consents to process being served in any such suit,
action or proceeding by mailing a copy thereof to such party at the
address in effect for notices to it under the Agreement and agrees
that such service shall constitute good and sufficient service of
process and notice thereof. Nothing in this Section 1.5 shall
affect or limit any right to serve process in any other manner
permitted by law.
To the extent permitted by
law, if any provision herein is determined to be void, voidable or
unenforceable, in whole or in part, such determination shall not
affect or impair or be deemed to affect or impair the validity of
any other provision hereof and all the provisions hereof are hereby
declared to be separate, severable and distinct.
- 4 -
ARTICLE 2
SECURITY
INTERESTS
| 2.1 |
Grant of Security Interest |
To secure the prompt,
punctual and faithful payment and performance of the Obligations,
Debtor hereby grants to Secured Party, for the benefit of Secured
Party, a continuing security interest (the “ Security
Interest ”) in and to the Collateral. Nothing contained
in the foregoing definition shall be construed to afford Secured
Party any recourse to the Patents or any other Collateral prior to
the occurrence of an Event of Default.
| 2.2 |
Security Interest Absolute, etc. |
This Agreement shall in all
respects be a continuing, absolute, unconditional and irrevocable
grant of security interest, and shall remain in full force and
effect until terminated. All rights of Secured Party and the
Security Interest granted hereunder, and all obligations of Debtor
hereunder, shall, in each case, be absolute, unconditional and
irrevocable irrespective of:
| |
(a) |
any lack of validity, legality or enforceability of this
Agreement, the Assignment Agreement or any other Closing Document
(collectively, the “ Transaction Documents
”); |
| |
(b) |
the failure of Secured Party to assert any claim or demand or
to enforce any right or remedy against Debtor or any other Person
under the provisions of any Transaction Document or
otherwise; |
| |
(c) |
any change in the time, manner or place of payment of, or in
any other term of, all or any part of the Obligations, or any other
extension, compromise or renewal of any Obligations; |
| |
(d) |
any reduction, limitation, impairment or termination of any
Obligations for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to
(and Debtor hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other event or occurrence
affecting, any Obligations or otherwise; and |
| |
(e) |
any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, Debtor
or any other Person under the provisions of any Transaction
Document. |
- 5 -
ARTICLE 3
REPRESENTATIONS AND
WARRANTIES OF DEBTOR
| 3.1 |
Debtor Representation |
|