EXHIBIT 10.33
AMENDMENT
THIS AMENDMENT is made as of the 23 day of December 2002, between General
Electric Capital Corporation ("Secured Party") and Discovery Laboratories, Inc.
("Debtor") in connection with that certain Master Security Agreement, dated as
of December 23, 2002 ("Agreement"). The terms of this Amendment are hereby
incorporated into the Agreement as though fully set forth therein. Section
references below refer to the section numbers of the Agreement. The Agreement is
hereby amended as follows:
1. CREATION OF SECURITY INTEREST.
This Section I is hereby amended and replaced with the following:
"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
therefor, and all insurance and/or other proceeds thereof (all such
property is individually and collectively called the "COLLATERAL"). The
lien is not contemplated to include intellectual property. This security
interest is given to secure the payment and performance of all debts,
obligations and liabilities of any kind whatsoever of Debtor to Secured
Party, now existing or arising in the future, including but not limited to
the payment and performance of certain Promissory Notes from time to time
identified on any Collateral Schedule (collectively "NOTES" and each a
"NOTE"), and any renewals, extensions and modifications of such debts,
obligations and liabilities (such Notes, debts, obligations and
liabilities are called the "INDEBTEDNESS")."
3. COLLATERAL.
Subsection (b) is hereby amended and replaced with the following:
"(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 in a
manner that would not violate the 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)."
4. INSURANCE.
Subsection (b) is hereby amended and replaced with the following:
"(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 policy shall name Secured Party as a loss payee, shall
provide for coverage to Secured Party regardless of the breach by Debtor
of any warranty or representation made therein, shall not be subject to
coinsurance, and shall provide that coverage may not be canceled or
altered by the insurer except upon 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. So long as
Debtor is not in default under the Agreement, proceeds of insurance less
than $50,000 shall be applied at the Debtor's option, to repair or replace
the Collateral or to reduce any of the Indebtedness, otherwise insurance
proceeds shall be applied, at the option of Secured Party, to repair or
replace the Collateral or to reduce any of the Indebtedness."
5. REPORTS.
Subsection (b) is hereby amended and replaced with the following:
"(b) Debtor will deliver to Secured Party financial statements as follows.
If Debtor is a privately held company, then Debtor agrees to provide
monthly financial statements, certified by Debtor's president or chief
financial officer including a balance sheet, statement of operations and
cash flow statement within 30 days of each month end and its complete
audited annual financial statements, certified by a recognized firm of
certified public accountants, within 120 days of fiscal year end or at
such time as Debtor's Board of Directors receives the audit. If Debtor is
a publicly held company, then Debtor agrees to provide quarterly unaudited
statements and annual audited statements, certified by a recognized firm
of certified public accountants, within 10 days after the statements are
provided to the Securities and Exchange Commission ("SEC"). All such
statements are to be prepared using generally accepted accounting
principles ("GAAP") and, if Debtor is a publicly held company, are to be
in compliance with SEC requirements."
7. DEFAULT AND REMEDIES.
Subsection (a) is hereby amended and replaced with the following:
"(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;
(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 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 warranty, representation or statement made by Debtor in any
of the Debt Documents or otherwise in connection with any of the
Indebtedness shall be false or misleading in any material respect;
(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 faith 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) If Debtor or any Guarantor 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; or
(xiii) There is a material adverse change in the Debtor's financial
condition, other than changes in cash reserves in the ordinary
course of business on a stand alone basis, as determined solely by
Secured Party."
(xiv) At any time during the term of this Agreement Debtor sells
more than 50% of its equity interest in the company to another
corporation or business or all or substantially all of its assets
without Secured Party's prior written consent.
TERMS USED, BUT NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN
TO THEM IN THE AGREEMENT. EXCEPT AS EXPRESSLY AMENDED HEREBY, THE AGREEMENT
SHALL REMAIN IN FULL FORCE AND EFFECT. IF THERE IS ANY CONFLICT BETWEEN THE
PROVISIONS OF THE AGREEMENT AND THIS AMENDMENT, THEN THIS AMENDMENT SHALL
CONTROL.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
simultaneously with the Agreement by signature of their respective authorized
representative set forth below.
GENERAL ELECTRIC CAPITAL CORPORATION DISCOVERY LABORATORIES, INC.
By: /s/ Xxxx Xxxx By: /s/ Xxxx X. Xxxxxx
--------------------------------- --------------------------------
Name: Xxxx Xxxx Name: Xxxx X. Xxxxxx
Title: SVP Title: Senior VP, CFO
