Exhibit 10.13
MASTER SECURITY AGREEMENT
NO. 4081064
Dated as of JULY 30, 2004 ("AGREEMENT")
THIS AGREEMENT (this "Agreement") is between OXFORD FINANCE CORPORATION
(together with its successors and assigns, if any, "SECURED PARTY") and PTC
Therapeutics, Inc. ("DEBTOR"). Secured Party has an office at 000 X. Xxxxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000. Debtor is a corporation organized and existing
under the laws of the state of Delaware. Debtor's mailing address and chief
place of business is 000 Xxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxxx, XX 00000.
1. CREATION OF SECURITY INTEREST.
Debtor grants to Secured Party, its successors and assigns, a security
interest in and against all property listed on any collateral schedule now or in
the future annexed to or made a part of this Agreement ("COLLATERAL SCHEDULE"),
and in and against all additions, attachments, accessories and accessions to
such property, all substitutions, replacements or exchanges therefore, and all
insurance and/or other proceeds thereof (all such property is individually and
collectively called the "COLLATERAL"). This security interest is given to secure
the payment and performance of certain Promissory Notes from time to time
identified on any Collateral Schedule (collectively "NOTES" and each a "NOTE"),
the "Debt Documents" (as defined below), and any renewals, extensions and
modifications of such debts, obligations and liabilities (such Notes, debts,
obligations and liabilities are called the "INDEBTEDNESS"). Debtor acknowledges
that, notwithstanding that the Note(s) may be paid in full, this Security
Agreement shall continue to secure the payment and performance of any remaining
Indebtedness of Debtor to Secured Party, now existing or arising in the future,
and that Secured Party shall be under no obligation to release the Collateral
unless and until all Indebtedness of Debtor to Secured Party has been paid and
satisfied; provided, however, Secured Party, in its sole and exclusive
discretion, may elect to release some of the Collateral without prejudice to
Secured Party's security interest in the remaining Collateral. Unless otherwise
provided by applicable law, notwithstanding anything to the contrary contained
in this Agreement, to the extent that Secured Party asserts a purchase money
security interest in any items of Collateral ("PMSI COLLATERAL"): (i) the PMSI
Collateral shall secure only that portion of the Indebtedness which has been
advanced by Secured Party to enable Debtor to purchase, or acquire rights in or
the use of such PMSI Collateral (the "PMSI INDEBTEDNESS"), and (ii) no other
Collateral shall secure the PMSI Indebtedness.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR.
Debtor represents, warrants and covenants as of the date of this Agreement
and as of the date of each Collateral Schedule that:
(a) Debtor's exact legal name is as set forth in the preamble of this
Agreement (or, upon any change thereto, Debtor will notify Secured
Party in accordance with the terms of this Agreement) and Debtor is,
and will remain, duly organized, existing and in good standing under
the laws of the State set forth in the preamble of this Agreement,
has its chief executive offices at the location specified in the
preamble (or, upon any change thereto, Debtor will notify Secured
Party in accordance with the terms of this Agreement), and is, and
will remain, duly qualified and licensed in every jurisdiction
wherever necessary to carry on its business and operations;
(b) Debtor has adequate power and capacity to enter into, and to perform
its obligations under this Agreement, each Note and any other
documents evidencing, or given in connection with, any of the
Indebtedness (all of the foregoing are called the "DEBT DOCUMENTS");
(c) This Agreement and the other Debt Documents have been duly
authorized, executed and delivered by Debtor and constitute legal,
valid and binding agreements enforceable in accordance with their
terms, except to the extent that the enforcement of remedies may be
limited under applicable bankruptcy and insolvency laws;
(d) No approval, consent or withholding of objections is required from
any governmental authority or instrumentality with respect to the
entry into, or performance by Debtor of any of the Debt Documents,
except any already obtained;
(e) The entry into, and performance by, Debtor of the Debt Documents
will not (i) violate any of the organizational documents of Debtor
or any judgment, order, law or regulation applicable to Debtor, or
(ii) result in any breach of or constitute a default under any
contract to which Debtor is a party, or result in the creation of
any lien, claim or encumbrance on any of Debtor's property (except
for liens in favor of Secured Party) pursuant to any indenture,
mortgage, deed of trust, bank loan, credit agreement, or other
agreement or instrument to which Debtor is a party;
(f) Except as otherwise disclosed to Secured Party, there are no suits
or proceedings pending in court or before any commission, board or
other administrative agency against or affecting Debtor which could,
in the aggregate, have a material adverse effect on Debtor, its
business or operations, or its ability to perform its obligations
under the Debt Documents, nor does Debtor have reason to believe
that any such suits or proceedings are threatened;
(g) All financial statements delivered to Secured Party in connection
with the Indebtedness have been prepared in accordance with
generally accepted accounting principles, and since the date of the
most recent financial statement, there has been no material adverse
change in Debtors financial condition;
(h) The Collateral is not, and will not be, used by Debtor for personal,
family or household purposes;
(i) The Collateral is, and will remain, in good condition and repair and
Debtor will not be negligent in its care and use;
(j) All of the tangible Collateral is located at the locations set forth
on each Collateral Schedule. Debtor shall give the Secured Party 30
days prior written notice of any relocation of any Collateral (other
than between such locations);
(k) Debtor is, and will remain, the sole and lawful owner, and in
possession of, the Collateral, and has the sole right and lawful
authority to grant the security interest described in this
Agreement;
(l) The Collateral is, and will remain, free and clear of all liens,
claims and encumbrances of any kind whatsoever, except for (i) liens
in favor of Secured Party, (ii) liens for taxes not yet due or for
taxes being contested in good faith and which do not involve, in the
reasonable judgment of Secured Party, any risk of the sale,
forfeiture or loss of any of the Collateral, and (iii) inchoate
material men's, mechanic's, repairmen's and similar liens arising by
operation of law in the normal course of business for amounts which
are not delinquent (all of such liens are called "PERMITTED LIENS");
(m) All federal, state and local tax returns required to be filed by
Debtor have been filed with the appropriate governmental agencies
and all taxes due and payable by Debtor have been timely paid.
Debtor will pay when due all taxes, assessments and other
liabilities except as contested in good faith and by appropriate
proceedings and for which adequate reserves have been established;
provided, however, the omission to file and/or pay any related fine
in connection with any employee benefit plan for the calendar years
ending in 2002 and 2003 shall not be deemed a breach of this
Subsection 2(m);
(n) No event or condition exists under any material agreement,
instrument or document to which Debtor is a party or may be subject,
or by which Debtor or any of its properties are bound, which
constitutes a default or an event of default thereunder;
(o) All reports, certificates, schedules, notices and financial
information submitted by Debtor to the Secured Party pursuant to
this Agreement shall be certified as true and correct by the
president or chief financial officer of Debtor; provided, however,
if and to the extent that Secured Party accepts reports,
certificates, schedules, notices and financial information without
the required certification or fails to provide an objection to the
omission to provide the required certification, the omission to
certify shall not be deemed a breach of this Subsection 2(o);
(p) Debtor shall give the Secured Party prompt written notice of any
event, occurrence or other matter which has resulted or may result
in a material adverse change in its financial condition, business
operations, prospects, product development, technology, or business
or contractual relations with third parties of Debtor which would
impair the ability of Debtor to perform its obligations hereunderor
under any of the other material financing agreements to which it is
a party or of Secured Party to enforce the Indebtedness or realize
upon the Collateral; and
(q) Debtor has previously delivered to the Secured Party a certificate
signed by the Debtor and entitled "Perfection Certificate" (the
"PERFECTION CERTIFICATE"). The Debtor represents and warrants to the
Secured Party as follows: (a) the Debtor's exact legal name is that
indicated on the Perfection Certificate and on the signature page
hereof, (b) the Debtor is an organization of the type, and is
organized in the jurisdiction set forth in the Perfection
Certificate, (c) the Perfection Certificate accurately sets forth
the Debtor's organizational identification number or accurately
states that the Debtor has none, (d) the Perfection Certificate
accurately sets forth the Debtor's place of business or, if more
than one, its chief executive office, as well as the Debtor's
mailing address, if different, (e) all other information set forth
on the Perfection Certificate pertaining to the Debtor is accurate
and complete, and (f) that there has been no change in any
information provided in the Perfection Certificate since the date on
which it was executed by the Debtor other than any change of which
Debtor has notified Secured Party in accordance with the terms of
this Agreement.
3. COLLATERAL.
(a) Until the declaration of any default, Debtor shall remain in
possession of the Collateral; except that Secured Party shall have
the right to possess (i) any chattel paper or instrument that
constitutes a part of the Collateral, and (ii) any other Collateral
in which Secured Party's security interest may be perfected only by
possession. Secured Party may inspect any of the Collateral during
normal business hours after giving Debtor reasonable prior notice.
Page 2 of 7
(b) Debtor shall (i) use the Collateral only in its trade or business,
(ii) maintain all of the Collateral in good operating order and
repair, normal wear and tear excepted, (iii) use and maintain the
Collateral only in compliance with manufacturers recommendations and
all applicable laws, and (iv) keep all of the Collateral free and
clear of all liens, claims and encumbrances (except for Permitted
Liens).
(c) Secured Party does not authorize and Debtor agrees it shall not (i)
part with possession of any of the Collateral (except to Secured
Party or for maintenance and repair), (ii) remove any of the
Collateral from the continental United States, or (iii) sell, rent,
lease, mortgage, license, grant a security interest in or otherwise
transfer or encumber (except for Permitted Liens) any of the
Collateral.
(d) Debtor shall pay promptly when due all taxes, license fees,
assessments and public and private charges levied or assessed on any
of the Collateral, on its use, or on this Agreement or any of the
other Debt Documents. At its option, Secured Party may discharge
taxes, liens, security interests or other encumbrances at any time
levied or placed on the Collateral and may pay for the maintenance,
insurance and preservation of the Collateral and effect compliance
with the terms of this Agreement or any of the other Debt Documents,
provided that, Secured Party shall not take any of such actions
unless and until Debtor has failed to do so in a timely manner,
Secured Party has delivered to Debtor written notice of any such
failure, and Debtor has not cured such failure within ten days after
receipt of such written notice. Debtor agrees to reimburse Secured
Party, on demand, all costs and expenses incurred by Secured Party
in connection with such payment or performance and agrees that such
reimbursement obligation shall constitute Indebtedness.
(e) Debtor shall, at all times, keep accurate and complete records of
the Collateral, and Secured Party shall have the right to inspect
and make copies of all of Debtor's books and records relating to the
Collateral during normal business hours, after giving Debtor
reasonable prior notice.
(f) Debtor agrees and acknowledges that any third person who may at any
time possess all or any portion of the Collateral shall be deemed to
hold, and shall hold, the Collateral as the agent of, and as pledge
holder for, Secured Party. Secured Party may at any time give notice
to any third person described in the preceding sentence that such
third person is holding the Collateral as the agent of, and as
pledge holder for, the Secured Party.
4. INSURANCE.
(a) Debtor shall at all times bear the entire risk of any loss, theft,
damage to, or destruction of, any of the Collateral from any cause
whatsoever, subject to the limitations set forth in Section 6(c).
(b) Debtor agrees to keep the Collateral insured against loss or damage
by fire and extended coverage perils, theft, burglary, and for any
or all Collateral, which are vehicles, for risk of loss by
collision, and if requested by Secured Party, against such other
risks as Secured Party may reasonably require. The insurance
coverage shall be in an amount no less than the full replacement
value of the Collateral, and deductible amounts, insurers and
policies shall be acceptable to Secured Party. Debtor shall deliver
to Secured Party policies or certificates of insurance evidencing
such coverage. Each such policy or certificate shall name Secured
Party as a loss payee, shall not be subject to co-insurance, and
shall provide that if coverage is canceled or lowered, the insurer
shall give thirty (30) days prior written notice to Secured Party.
Debtor appoints Secured Party as its attorney-in-fact to make proof
of loss, claim for insurance and adjustments with insurers, and to
receive payment of and execute or endorse all documents, checks or
drafts in connection with insurance payments. Secured Party shall
not act as Debtor's attorney-in-fact unless Debtor is in default
under the Debt Documents. Proceeds of insurance shall be applied, at
the option of Secured Party, to repair or replace the Collateral or
to reduce any of the Indebtedness.
5. REPORTS.
(a) Debtor shall promptly notify Secured Party of (i) any change in the
name of Debtor, (ii) any change in the state of its incorporation or
registration, (iii) any relocation of its chief executive offices,
(iv) any of the Collateral being lost, stolen, missing, destroyed,
materially damaged or worn out, or (v) any lien, claim or
encumbrance other than Permitted Liens attaching to or being made
against any of the Collateral.
(b) Debtor will deliver to Secured Party within one hundred twenty (120)
days of the close of each fiscal year of Debtor, a copy of the
annual audit report of Debtor, including a balance sheet, income
statement, statement of shareholders' equity and statement of cash
flows, each prepared in accordance with generally accepted
accounting principles consistently applied, certified by a
recognized firm of certified public accountants. Debtor will deliver
to Secured Party copies of Debtor's balance sheet, income statement
and statement of cash flows, each prepared by Debtor in accordance
with generally accepted accounting principles consistently applied
by Debtor and certified (subject to year-end audit adjustments) by
Debtor's chief financial officer, within ninety (90) days after the
close of each of the first three quarters of each fiscal year of
Debtor. Debtor will deliver to Secured Party copies of all Forms
10-K and 10-Q, if any, within 30 days after the dates on which they
are filed with the Securities and Exchange Commission. Debtor will
deliver to Secured Party copies of monthly bank account statements
or other statements provided with respect to Debtor's cash
management activities within forty-five (45) days after the close of
each month.
(c) Secured Party promptly upon request of Secured Party, in form
satisfactory to Secured Party, such other and additional information
as Secured Party may reasonably request from time to time, provided
that,
Page 3 of 7
i. Such additional information exists or could be created without
significant additional cost on the part of Debtor;
ii. If Debtor indicates such additional information is
confidential or proprietary, Secured Party will provide
written assurances of confidential treatment upon Debtor's
request, ensure limited access to such additional information,
and guarantee no improper use or transfer thereof; and
iii. Such additional information will not violate any law,
regulation or contractual or other obligation by which Debtor
is bound.
6. FURTHER ASSURANCES.
(a) Debtor shall, upon request of Secured Party, furnish to Secured
Party such further information, execute and deliver to Secured Party
such documents and instruments (including, without limitation,
Uniform Commercial Code financing statements) and shall do such
other acts and things as Secured Party may at any time reasonably
request to perfect or protect the security interest created by this
Agreement or for the purpose of carrying out the intent of this
Agreement. Without limiting the foregoing, Debtor shall cooperate
and do all acts reasonably deemed necessary or advisable by Secured
Party to continue in Secured Party a perfected first security
interest in the Collateral, and shall use its best efforts under the
circumstances to obtain and furnish to Secured Party any
subordinations, releases, landlord waivers, lessor waivers,
mortgagee waivers, or control agreements, and similar documents as
may be from time to time reasonably requested by, and in form and
substance reasonably satisfactory to, Secured Party.
(b) Debtor shall use its best efforts under the circumstances to perform
any and all acts requested by the Secured Party to establish,
maintain and continue the Secured Party's security interest and
liens in the Collateral, including but not limited to, executing or
authenticating financing statements and such other instruments and
documents when and as reasonably requested by the Secured Party.
Debtor hereby authorizes Secured Party through any of Secured
Party's employees, agents or attorneys to file any and all financing
statements, including, without limitation, any original filings,
continuations, transfers or amendments thereof required to perfect
Secured Party's security interest and liens in the Collateral under
the UCC without authentication or execution by Debtor. Debtor hereby
irrevocably authorizes the Secured Party at any time and from time
to time to file in any filing office in any Uniform Commercial Code
jurisdiction any initial financing statement(s) and amendments
thereto that (a) indicate the Collateral (i) is subject to the
Secured Party's security interest, regardless of whether any
particular asset comprised in the Collateral falls within the scope
of Article 9 of the Uniform Commercial Code of the State or such
jurisdiction, or (ii) as being of an equal or lesser scope or with
greater detail, and (b) provide any other information required by
part 5 of Article 9 of the Uniform Commercial Code of the State or
such other jurisdiction for the sufficiency or filing office
acceptance of any financing statement or amendment, including (i)
whether the Debtor is an organization, the type of organization and
any organization identification number issued to the Debtor, and
(ii) in the case of a financing statement filed as a fixture filing,
a sufficient description of real property to which the Collateral
relates. The Debtor agrees to furnish any such information to the
Secured Party promptly upon the Secured Party's request.
(c) Debtor shall indemnify and defend the Secured Party, its successors
and assigns, and their respective directors, officers and employees,
from and against all claims, actions and suits (including, without
limitation, related attorneys' fees) of any kind whatsoever arising,
directly or indirectly, in connection with any of the Collateral,
provided that, Debtor shall have no such obligation to indemnify or
defend Secured Party or any such entities or persons from and
against any such claims, actions or suits (including without
limitation attorneys' fees) arising, directly or indirectly, in
connection with any of the following:
(i) Secured Party's or its agents' failure to comply with any
applicable laws, rules or regulations in relation to its handling,
use or transport of the Collateral;
(ii) Secured Party's or its agents' failure to utilize properly
trained or experienced personnel for the handling, use or transport
of any materials or other items of Collateral which constitute or
contain hazards or dangers known or identified to Secured Party as
such; or
(iii) Secured Party's or its agents' gross negligence or willful
misconduct.
7. DEFAULT AND REMEDIES.
(a) Debtor shall be in default under this Agreement and each of the
other Debt Documents if:
(i) Debtor breaches its obligation to pay when due any installment
or other amount due or coming due under any of the Debt
Documents and fails to cure such breach within five (5) days
of when due;
(ii) Debtor, without the prior written consent of Secured Party,
attempts to or does sell, rent, lease, license, mortgage,
grant a security interest in, or otherwise transfer or
encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section
4;
(iv) Debtor breaches any of its other non-payment obligations under
any of the Debt Documents and fails to cure that breach within
thirty (30) days after written notice from Secured Party;
(v) Any material warranty, representation or statement made by
Debtor in any of the Debt Documentsor otherwise in connection
with any of the Indebtedness shall be false or misleading in
any material respect as of the date made;
Page 4 of
(vi) Any of the Collateral is subjected to attachment, execution,
levy, seizure or confiscation in any legal proceeding or
otherwise, or if any legal or administrative proceeding is
commenced against Debtor or any of the Collateral, which in
the good faithreasonable judgment of Secured Party subjects
any of the Collateral to a material risk of attachment,
execution, levy, seizure or confiscation and no bond is posted
or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement
between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the
Indebtedness (collectively "GUARANTOR") dissolves, terminates
its existence, becomes insolvent or ceases to do business as a
going concern;
(ix) With respect to any Debtor or any Guarantor who is a natural
person, Debtor or any such Guarantor dies or becomes
incompetent;
(x) A receiver is appointed for all or of any part of the property
of Debtor or any Guarantor, or Debtor or any Guarantor makes
any assignment for the benefit of creditors;
(xi) Debtor or any Guarantor files a petition under any bankruptcy,
insolvency or similar law, or any such petition is filed
against Debtor or any Guarantor and is not dismissed within
forty-five (45) days;
(xii) Debtor's improper filing of an amendment or termination
statement relating to a filed financing statement describing
the Collateral.
(xiii) Except with the Secured Party's prior written consent which
shall not be unreasonably withheld, conditioned or delayed,
Debtor shall merge with or consolidate into any other entity
or sell all or substantially all of its assets or in any
manner terminate its existence;
(xiv) Except with the Secured Party's prior written consent which
shall not be unreasonably withheld, conditioned or delayed,
Debtor is a privately held corporation, more than 50% of
Debtor's voting capital stock, or effective control of
Debtor's voting capital stock, issued and outstanding from
time to time, is not retained by the holders of such stock on
the date the Agreement is executed;
(xv) Except with the Secured Party's prior written consent which
shall not be unreasonably withheld, conditioned or delayed,
Debtor is a publicly held corporation, there shall be a change
in the ownership of Debtor's stock such that Debtor is no
longer subject to the reporting requirements of the Securities
Exchange Act of 1934 or no longer has a class of equity
securities registered under Section 12 of the Securities Act
of 1933;
(xvi) Debtor defaults under any other material financing arrangement
between Debtor and a third party; and
(xvii) A change or event shall have occurred which would impair the
ability of Debtor to perform its material obligations
hereunder or of Secured Party to enforce the Indebtedness or
realize upon the Collateral;
(b) If Debtor is in default, the Secured Party, at its option, may
declare any or all of the Indebtedness to be immediately due and
payable, without demand or notice to Debtor or any Guarantor. The
accelerated obligations and liabilities shall bear interest (both
before and after any judgment) until paid in full at the lower of
thirteen percent (13%) per annum or the maximum rate not prohibited
by applicable law.
(c) Upon a default of this Agreement by Debtor or the occurrence of an
event which would constitute a default, Secured Party shall have all
of the rights and remedies of a Secured Party under the Uniform
Commercial Code, and under any other applicable law. Without
limiting the foregoing, Secured Party shall have the right in such
circumstances to (i) notify any account debtor of Debtor or any
obligor on any instrument which constitutes part of the Collateral
to make payment to the Secured Party, (ii) with or without legal
process, enter any premises where the Collateral may be and take
possession of and remove the Collateral from the premises or store
it on the premises, (iii) sell the Collateral at public or private
sale, in whole or in part, and have the right to bid and purchase at
said sale, or (iv) lease or otherwise dispose of all or part of the
Collateral, applying proceeds from such disposition to the
obligations then in default. Upon a default of this Agreement by
Debtor or the occurrence of an event that would constitute a
default, if requested by Secured Party, Debtor shall promptly
assemble the Collateral and make it available to Secured Party at a
place to be designated by Secured Party, which is reasonably
convenient to both parties. Upon a default of this Agreement by
Debtor or the occurrence of an event which would constitute a
default, Secured Party may also render any or all of the Collateral
unusable at the Debtor's premises and may dispose of such Collateral
on such premises without liability for rent or costs. Any notice
that Secured Party is required to give to Debtor under the Uniform
Commercial Code of the time and place of any public sale or the time
after which any private sale or other intended disposition of the
Collateral is to be made shall be deemed to constitute reasonable
notice if such notice is given to the last known address of Debtor
at least five (5) days prior to such action. Upon a default of this
Agreement by Debtor or the occurrence of an event of default and
during the continuation of such default or event, Debtor hereby
appoints Secured Party as Debtor's attorney-in-fact, with full
authority in Debtor's place and stead and in Debtor's name or
otherwise, from time to time in Secured Party's sole and arbitrary
discretion, to take any action and to execute any instrument which
Secured Party reasonably deems necessary or advisable to accomplish
the purpose of this Agreement.
(d) Proceeds from any sale or lease or other disposition shall be
applied: first, to all costs of repossession, storage, and
disposition including without limitation attorneys', appraisers',
and auctioneers' fees; second, to discharge the obligations then in
default; third, to discharge any other Indebtedness of Debtor to
Secured Party, whether as obligor, endorser, guarantor, surety or
indemnitor; fourth, to expenses incurred in paying or settling liens
and claims against the Collateral; and lastly, to Debtor, if there
exists any surplus. Debtor shall remain fully liable for any
deficiency.
Page 5 of 7
(e) Upon a default of this Agreement by Debtor or the occurrence of an
event which with the passage of time or the giving of notice would
constitute a default, Debtor agrees to pay all reasonable attorneys'
fees and other costs incurred by Secured Party in connection with
the enforcement, assertion, defense or preservation of Secured
Party's rights and remedies under this Agreement, or if prohibited
by law, such lesser sum as may be permitted. Debtor further agrees
that such fees and costs shall constitute Indebtedness.
(f) Secured Party's rights and remedies under this Agreement or
otherwise arising are cumulative and may be exercised singularly or
concurrently. Neither the failure nor any delay on the part of the
Secured Party to exercise any right, power or privilege under this
Agreement shall operate as a waiver, nor shall any single or partial
exercise of any right, power or privilege preclude any other or
further exercise of that or any other right, power or privilege.
SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS
UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR
PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING
AND SIGNED BY SECURED PARTY. A waiver on any one occasion shall not
be construed as a bar to or waiver of any right or remedy on any
future occasion.
(g) DEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE
INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED
PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY
RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING
ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS
WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER
ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO
ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR
ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
8. MISCELLANEOUS.
(a) This Agreement, any Note and/or any of the other Debt
Documents may be assigned, in whole or in part, by Secured
Party without notice to Debtor, and Debtor agrees not to
assert against any such assignee, or assignee's assigns, any
set-off, recoupment claim or counterclaim which Debtor has or
may at any time have against Secured Party for any reason
whatsoever, except in any case of the defense of payment.
Debtor agrees that if Debtor receives written notice of an
assignment from Secured Party, Debtor will pay all amounts
payable under any assigned Debt Documents to such assignee or
as instructed by Secured Party. Debtor also agrees to confirm
in writing receipt of the notice of assignment as may be
reasonably requested by Secured Party or assignee.
(b) All notices to be given in connection with this Agreement
shall be in writing, shall be addressed to the parties at
their respective addresses set forth in this Agreement (unless
and until a different address may be specified in a written
notice to the other party), and, in the case of all such
notices to Debtor, a copy shall be sent by email to
xxxxx@xxxxxx.xxx, and shall be deemed given (i) on the date of
receipt if delivered in hand or by facsimile transmission,
(ii) on the next business day after being sent by express
mail, and (iii) on the fourth business day after being sent by
regular, registered or certified mail. As used herein, the
term "business day" shall mean and include any day other than
Saturdays, Sundays, or other days on which commercial banks in
New York, New York are required or authorized to be closed.
(c) Upon notice to Debtor, Secured Party may fill in all blanks in
any Collateral Schedule consistent with the agreement of the
parties. With the consent of Debtor, Secured Party may correct
patent errors and fill in all blanks in this Agreement
consistent with the terms hereof, provided that, consistent
with the agreement of the parties, Secured Party may fill in
the date in any Note or this Agreement without further notice
to or consent of Debtor.
(d) Time is of the essence of this Agreement. This Agreement shall
be binding, jointly and severally, upon all parties described
as the "Debtor" and their respective heirs, executors,
representatives, successors and assigns, and shall inure to
the benefit of Secured Party, its successors and assigns.
(e) This Agreement and its Collateral Schedules constitute the
entire agreement between the parties with respect to the
subject matter of this Agreement and supersede all prior
understandings (whether written, verbal or implied) with
respect to such subject matter. THIS AGREEMENT AND ITS
COLLATERAL SCHEDULES SHALL NOT BE CHANGED OR TERMINATED ORALLY
OR BY COURSE OF CONDUCT, BUT ONLY BY A WRITING SIGNED BY BOTH
PARTIES. Section headings contained in this Agreement have
been included for convenience only, and shall not affect the
construction or interpretation of this Agreement.
(f) This Agreement shall continue in full force and effect until
all of the Indebtedness has been indefeasibly paid in full to
Secured Party or its assignee. The surrender, upon payment or
otherwise, of any Note or any of the other documents
evidencing any of the Indebtedness shall not affect the right
of Secured Party to retain the Collateral for such other
Indebtedness as may then exist or as it may be reasonably
contemplated will exist in the future. This Agreement shall
automatically be reinstated if Secured Party is ever required
to return or restore the payment of all or any portion of the
Indebtedness (all as though such payment had never been made).
Page 6 of 7
DEBTOR AGREES THAT SECURED PARTY AND/OR ITS SUCCESSORS AND ASSIGNS
SHALL HAVE THE OPTION BY WHICH STATE LAWS THIS AGREEMENT SHALL BE
GOVERNED AND CONSTRUED: (A) THE LAWS OF THE COMMONWEALTH OF
VIRGINIA; OR (B) IF COLLATERAL HAS BEEN PLEDGED TO SECURE THE
LIABILITIES, THEN BY THE LAWS OF THE STATE OR STATES WHERE THE
COLLATERAL IS LOCATED, AT SECURED PARTY'S OPTION. THIS CHOICE OF
STATE LAWS IS EXCLUSIVE TO THE SECURED PARTY. DEBTOR SHALL NOT HAVE
ANY OPTION TO CHOOSE THE LAWS BY WHICH THIS AGREEMENT SHALL BE
GOVERNED. DEBTOR ACKNOWLEDGES THAT THIS AGREEMENT IS BEING SIGNED BY
THE SECURED PARTY IN PARTIAL CONSIDERATION OF SECURED PARTY'S RIGHT
TO ENFORCE IN THE JURISDICTION STATED ABOVE. DEBTOR CONSENTS TO
JURISDICTION IN THE COMMONWEALTH OF VIRGINIA OR THE STATE IN WHICH
ANY COLLATERAL IS LOCATED AND VENUE IN ANY FEDERAL OR STATE COURT IN
THE COMMONWEALTH OF VIRGINIA OR THE STATE IN WHICH COLLATERAL IS
LOCATED FOR SUCH PURPOSES AND WAIVES ANY AND ALL RIGHTS TO CONTEST
SAID JURISDICTION AND VENUE AND ANY OBJECTION THAT SAID COUNTY IS
NOT CONVENIENT. DEBTOR WAIVES ANY RIGHTS TO COMMENCE ANY ACTION
AGAINST SECURED PARTY IN ANY JURISDICTION EXCEPT VIRGINIA, OR IF
SECURED PARTY CHOOSES TO LITIGATE IN A STATE WHERE COLLATERAL IS
LOCTAED THEN IN SUCH COUNTY AND STATE.
IN WITNESS WHEREOF, Debtor and Secured Party, intending to be legally
bound hereby, have duly executed this Agreement in one or more counterparts,
each of which shall be deemed to be an original, as of the day and year first
aforesaid.
SECURED PARTY: DEBTOR:
OXFORD FINANCE CORPORATION PTC THERAPEUTICS, INC.
By: /S/ XXXXXXX X. XXXXXXXXXXX By: /S/ XXXXXXX XXXXX
Name: Xxxxxxx X. Xxxxxxxxxxx Name: Xxxxxxx Xxxxx III
Title: Chief Financial Officer Title: Vice President Finance
Page 7 of 7
