PURCHASED INTEREST SHALL CONSTITUTE A TRUE AND ABSOLUTE SALE AND ASSIGNMENT
THEREOF, VERTEX HEREBY GRANTS TO THE PURCHASER A SECURITY INTEREST IN ALL OF
VERTEX'S RIGHT, TITLE AND INTEREST IN AND TO THE PURCHASED INTEREST AND ALL
PROCEEDS
7
Information redacted pursuant to a confidential treatment request.
An
unredacted version
of this exhibit has been filed separately with the Commission.
THEREOF, TO SECURE THE PROMPT AND COMPLETE PAYMENT OF A LOAN DEEMED TO HAVE BEEN
MADE IN AN AMOUNT EQUAL TO THE PURCHASE PRICE, WHICH SECURITY INTEREST SHALL,
UPON THE FILING OF A DULY PREPARED FINANCING STATEMENT IN THE APPROPRIATE FILING
OFFICE, BE PERFECTED AND PRIOR TO ALL OTHER LIENS THEREON.
IN THE CASE OF ANY
RECHARACTERIZATION, THE PURCHASER SHALL HAVE, IN ADDITION TO THE RIGHTS AND
REMEDIES WHICH THEY MAY HAVE UNDER THIS AGREEMENT, ALL OTHER RIGHTS AND REMEDIES
PROVIDED TO A SECURED CREDITOR AFTER DEFAULT UNDER THE UCC AND OTHER APPLICABLE
LAW, WHICH RIGHTS AND REMEDIES SHALL BE CUMULATIVE.
IN THE CASE OF ANY
RECHARACTERIZATION, EACH OF VERTEX AND THE PURCHASER REPRESENTS AND WARRANTS AS
TO ITSELF THAT EACH REMITTANCE OF THE MILESTONE PAYMENT OR ANY PORTION THEREOF
OR ANY OTHER PAYMENT IN RESPECT OF THE PURCHASED INTEREST BY OR ON BEHALF OF
VERTEX TO THE PURCHASER HEREUNDER WILL HAVE BEEN (I) IN PAYMENT OF A DEBT
INCURRED BY VERTEX IN THE ORDINARY COURSE OF BUSINESS OR FINANCIAL AFFAIRS OF
VERTEX AND THE PURCHASER AND (II) MADE IN THE ORDINARY COURSE OF BUSINESS OR
FINANCIAL AFFAIRS OF VERTEX AND THE PURCHASER.
Section 2.02
Entitlement to Payments.
(A)
VERTEX AGREES THAT THE PURCHASER IS ENTITLED TO THE PURCHASED
INTEREST AND THE PURCHASER MAY ENFORCE DIRECTLY AGAINST JANSSEN THE RIGHT TO
PAYMENT OF ANY PORTION OF THE MILESTONE PAYMENT REPRESENTED BY THE PURCHASED
INTEREST WHEN EARNED UPON ACHIEVEMENT OF THE MILESTONE EVENT PURSUANT TO THE
JANSSEN AGREEMENT.
(B)
FOR AVOIDANCE OF DOUBT, THE PARTIES HERETO UNDERSTAND AND AGREE
THAT IF JANSSEN FAILS TO PAY THE MILESTONE PAYMENT IN FULL WHEN VERTEX OR THE
PURCHASER REASONABLY BELIEVES THE MILESTONE PAYMENT IS DUE UNDER THE JANSSEN
AGREEMENT, EXCEPT FOR ANY SET-OFF MADE BY JANSSEN AGAINST THE MILESTONE PAYMENT
(EACH SUCH UNPAID AMOUNT, A "DISCREPANCY"), THEN VERTEX SHALL NOT BE OBLIGATED
TO PAY TO THE PURCHASER OR OTHERWISE COMPENSATE OR MAKE THE PURCHASER WHOLE WITH
RESPECT TO ANY SUCH DISCREPANCY; PROVIDED, HOWEVER, THAT NOTHING IN THIS
SECTION 2.02(B) SHALL LIMIT OR AFFECT IN ANY RESPECT THE RIGHTS OF THE PURCHASER
UNDER SECTION 5.05 OR OF ANY PURCHASER INDEMNIFIED PARTY UNDER SECTION 7.05.
NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT THE MILESTONE PAYMENT IS NOT
PAID IN FULL BY JANSSEN DUE TO JANSSEN ASSERTING OR EFFECTING A SET-OFF AGAINST
THE MILESTONE PAYMENT PURSUANT TO THE JANSSEN AGREEMENT (WHETHER OR NOT ANY SUCH
SET-OFF WAS DISCLOSED HEREUNDER) OR JANSSEN OTHERWISE DOES NOT, FOLLOWING THE
OCCURRENCE OF THE MILESTONE EVENT, PAY THE MILESTONE PAYMENT IN FULL DUE TO ANY
BREACH BY VERTEX OF THE JANSSEN AGREEMENT, VERTEX SHALL BE LIABLE FOR, AND SHALL
PAY THE