EXPRESSLY PROVIDED IN THIS SECTION 3.3, THE COLLATERAL SHALL NOT
INCLUDE ANY INTELLECTUAL PROPERTY (AS DEFINED BELOW) OF ANY LOAN PARTY OR ANY
CLAIMS FOR DAMAGES BY WAY OF ANY PAST, PRESENT OR FUTURE INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY; PROVIDED HOWEVER, THAT THE COLLATERAL SHALL INCLUDE ALL
CASH, ROYALTY FEES, OTHER PROCEEDS, ACCOUNTS AND GENERAL INTANGIBLES (INCLUDING,
WITHOUT LIMITATION, CONTRACT RIGHTS) THAT CONSIST OF RIGHTS OF PAYMENT TO OR ON
BEHALF OF A LOAN PARTY OR PROCEEDS FROM THE SALE, LICENSING OR OTHER DISPOSITION
OF ALL OR ANY PART OF, OR RIGHTS IN, THE INTELLECTUAL PROPERTY BY OR ON BEHALF
OF A LOAN PARTY ("RIGHTS TO PAYMENT").
NOTWITHSTANDING THE FOREGOING, TO THE
EXTENT IT IS NECESSARY UNDER APPLICABLE LAW IN ANY BANKRUPTCY OR INSOLVENCY
PROCEEDING INVOLVING A LOAN PARTY FOR AGENT (ON BEHALF OF ITSELF AND LENDERS) TO
HAVE A SECURITY INTEREST IN THE UNDERLYING INTELLECTUAL PROPERTY IN ORDER FOR
AGENT TO HAVE (I) A SECURITY INTEREST IN THE RIGHTS TO PAYMENT AND (II) A
SECURITY INTEREST IN ANY PAYMENTS WITH RESPECT TO RIGHTS TO PAYMENT THAT ARE
RECEIVED AFTER THE COMMENCEMENT OF SUCH BANKRUPTCY OR INSOLVENCY PROCEEDING,
THEN THE COLLATERAL SHALL AUTOMATICALLY, AND EFFECTIVE AS OF THE DATE HEREOF,
INCLUDE THE INTELLECTUAL PROPERTY TO THE EXTENT NECESSARY TO PERMIT ATTACHMENT
AND PERFECTION OF AGENT'S SECURITY INTEREST (ON BEHALF OF ITSELF AND
8
LENDERS) IN THE RIGHTS TO PAYMENT AND ANY PAYMENTS IN RESPECT THEREOF THAT ARE
RECEIVED AFTER THE COMMENCEMENT OF ANY BANKRUPTCY OR INSOLVENCY PROCEEDING.
AGENT HEREBY AGREES ON BEHALF OF ITSELF AND THE LENDERS THAT, IF AGENT OBTAINS A
SECURITY INTEREST IN THE INTELLECTUAL PROPERTY PURSUANT TO THE IMMEDIATELY
PRECEDING SENTENCE, AGENT WILL NOT EXERCISE ANY REMEDIES (UNDER THE UCC OR
OTHERWISE) WITH RESPECT TO THE INTELLECTUAL PROPERTY (OTHER THAN REMEDIES WITH
RESPECT TO RIGHTS TO PAYMENT OR ANY OTHER PROCEEDS OF THE INTELLECTUAL
PROPERTY).
FOR PURPOSES OF THIS AGREEMENT, "INTELLECTUAL PROPERTY" SHALL MEAN
(I) ANY AND ALL COPYRIGHTS, TRADEMARKS, SERVICEMARKS, PATENTS, DESIGN RIGHTS,
SOFTWARE, TRADE SECRETS, KNOW-HOW, OPERATING MANUALS, RIGHTS TO UNPATENTED
INVENTIONS AND INTANGIBLE RIGHTS OF A LOAN PARTY, AND THE GOODWILL OF THE
BUSINESS OF A LOAN PARTY CONNECTED WITH AND SYMBOLIZED BY ANY OF THE FOREGOING,
(II) ANY LICENSE BY A LOAN PARTY OF ANY AND ALL COPYRIGHTS, TRADEMARKS,
SERVICEMARKS, PATENTS, DESIGN RIGHTS, SOFTWARE, TRADE SECRETS AND INTANGIBLE
RIGHTS OF A THIRD PARTY, (III) ANY CLINICAL AND CLINICAL TRIAL DATA OR RECORDS,
CORRESPONDENCE OR SIMILAR DOCUMENTATION DIRECTLY RELATED THERETO, AND (IV) ANY
APPLICATIONS, REGISTRATIONS, CLAIMS, PRODUCTS, AWARDS, JUDGMENTS, AMENDMENTS,
RENEWALS, EXTENSIONS, REISSUES, CONTINUATIONS-IN-PART OF THE SAME, IMPROVEMENTS
AND INSURANCE CLAIMS RELATED THERETO NOW OWNED, LICENSED OR HEREAFTER ACQUIRED.
3.4.
TERMINATION OF SECURITY INTEREST.
SUBJECT TO SECTION 10.9, AGENT'S
LIEN ON AND SECURITY INTERESTS IN THE COLLATERAL (ON BEHALF OF ITSELF AND
LENDERS) SHALL CONTINUE UNTIL ALL OF THE OBLIGATIONS ARE INDEFEASIBLY REPAID IN
FULL IN CASH, ALL OF THE COMMITMENTS HEREUNDER ARE TERMINATED, AND THIS
AGREEMENT SHALL HAVE BEEN TERMINATED (THE "TERMINATION DATE").
UPON THE
TERMINATION DATE, AGENT SHALL, AT LOAN PARTIES'