same and of any tort claims
in connection therewith.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING, AT THE TIME OF
CLOSING OF THE MIA TRANSACTION, THE TERM "COLLATERAL" SHALL NO LONGER INCLUDE
THE EQUIPMENT NEEDED TO MANUFACTURE/ASSEMBLE THE ONQ AEROSOL GENERATOR, AS
SPECIFICALLY SET FORTH ON SCHEDULE B HERETO, ALL OF WHICH ARE TO BE CONVEYED
PURSUANT TO BORROWER'S AGREEMENT WITH MEDICAL INDUSTRIES AMERICA, INC.
CONSISTENT WITH THE TERM SHEET SIGNED ON AUGUST 15, 2003 (COLLECTIVELY, THE "MIA
ASSETS").
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING, THE GRANT OF A
SECURITY INTEREST AS PROVIDED HEREIN SHALL NOT EXTEND TO, AND THE TERM
"COLLATERAL" SHALL NOT INCLUDE, TO THE EXTENT SUCH EXCLUSION DOES NOT RESULT IN
A MATERIAL ADVERSE EFFECT (AS DEFINED IN THE LOAN AGREEMENT), ANY IMMATERIAL
CONTRACT, INSTRUMENT OR CHATTEL PAPER IN WHICH THE BORROWER HAS ANY RIGHT, TITLE
OR INTEREST IF AND TO THE EXTENT SUCH CONTRACT, INSTRUMENT OR CHATTEL PAPER
INCLUDES A PROVISION CONTAINING A RESTRICTION ON ASSIGNMENT SUCH THAT THE
CREATION OF A SECURITY INTEREST IN THE RIGHT, TITLE OR INTEREST OF THE BORROWER
THEREIN WOULD BE PROHIBITED AND WOULD, IN AND OF ITSELF, CAUSE OR RESULT IN A
DEFAULT THEREUNDER ENABLING ANOTHER PERSON PARTY TO SUCH CONTRACT, INSTRUMENT OR
CHATTEL PAPER TO ENFORCE ANY REMEDY WITH RESPECT THERETO.
(C)
"COPYRIGHTS" MEANS ANY AND ALL COPYRIGHTS,
COPYRIGHT APPLICATIONS, COPYRIGHT REGISTRATION AND LIKE PROTECTIONS IN EACH WORK
OR AUTHORSHIP AND DERIVATIVE WORK THEREOF THAT IS CREATED BY THE BORROWER,
WHETHER PUBLISHED OR UNPUBLISHED AND WHETHER OR NOT THE SAME ALSO CONSTITUTES A
TRADE SECRET, NOW OR HEREAFTER EXISTING, CREATED, ACQUIRED OR HELD, INCLUDING,
WITHOUT LIMITATION, THOSE SET FORTH ON EXHIBIT A ATTACHED HERETO.
(D)
"OBLIGATIONS" MEANS ALL OF THE BORROWER'S
OBLIGATIONS UNDER THIS AGREEMENT AND THE DEBENTURES, IN EACH CASE, WHETHER NOW
OR HEREAFTER EXISTING, VOLUNTARY OR INVOLUNTARY, DIRECT OR INDIRECT, ABSOLUTE OR
CONTINGENT, LIQUIDATED OR UNLIQUIDATED, WHETHER OR NOT JOINTLY OWED WITH OTHERS,
AND WHETHER OR NOT FROM TIME TO TIME DECREASED OR EXTINGUISHED AND LATER
INCREASED, CREATED OR INCURRED, AS SUCH OBLIGATIONS MAY BE AMENDED,
SUPPLEMENTED, CONVERTED, EXTENDED OR MODIFIED FROM TIME TO TIME PURSUANT TO THE
TERMS OF THIS AGREEMENTS OR THE DEBENTURES, AS APPLICABLE.
(E)
"PATENTS" MEANS ALL OF THE BORROWER'S
PATENTS, PATENT APPLICATIONS, LETTERS PATENT AND LIKE PROTECTIONS, INCLUDING,
WITHOUT LIMITATION, IMPROVEMENTS, DIVISIONS, CONTINUATIONS, RENEWALS, REISSUES,
EXTENSIONS AND CONTINUATIONS-IN-PART OF THE SAME, AND INCLUDING, WITHOUT
LIMITATION, THOSE SET FORTH ON EXHIBIT B ATTACHED HERETO.
(F)
"SECURITY AGREEMENT" MEANS THAT CERTAIN
SECURITY AGREEMENT OF EVEN DATE HEREWITH EXECUTED BY THE BORROWER IN FAVOR OF
THE SECURED PARTIES.
2
(G)
"TRADEMARKS" MEANS ANY TRADEMARK, SERVICE
MARK RIGHT, WHETHER OR NOT REGISTERED, APPLICATIONS TO REGISTER AND
REGISTRATIONS OF THE SAME AND LIKE PROTECTIONS, AND THE ENTIRE GOODWILL OF THE
BUSINESS OF THE BORROWER CONNECTED WITH OR SYMBOLIZED BY SUCH TRADEMARKS,
INCLUDING, WITHOUT LIMITATION, THOSE SET FORTH ON EXHIBIT C ATTACHED HERETO.
(H)
"UCC" MEANS THE UNIFORM COMMERCIAL CODE
AND/OR ANY OTHER APPLICABLE LAW OF EACH JURISDICTION IN WHICH THE BORROWER IS
INCORPORATED