EXHIBIT 4.10
CROSS-COLLATERAL AND CROSS-DEFAULT AGREEMENT
General Electric Capital Corporation
000 Xxxxxxx 00xx Xxxxx
Xxxxxxx, XX 00000
Gentlemen:
You (and/or your successors or assigns, "you") have entered into or
purchased one or more conditional sale contracts, lease agreements, chattel
mortgages, security agreements, notes and other choses in action (herein
designated "Accounts") arising from the bona fide sale or lease to us, by
various vendors or lessors, of equipment and inventory (herein designated
"Collateral") and/or you have made direct loans to or otherwise extended credit
to us evidenced by Accounts creating security interests in Collateral.
In order to induce you to extend our time of payment on one or more
Accounts and/or to make additional loans to us and/or to purchase additional
Accounts and/or to lease us additional equipment, and in consideration of you so
doing, and for other good and valuable consideration, the receipt of which we
hereby acknowledge, we agree as follows:
All presently existing and hereafter acquired Collateral in which you
have or shall have a security interest shall secure the payment and performance
of all of our liabilities and obligations to you of every kind and character,
whether joint or several, direct or indirect, absolute or contingent, due or to
become due, and whether under presently existing or hereafter created Accounts
or agreements, or otherwise.
We further agree that your security interest in the property covered by
any Account now held or hereafter acquired by you shall not be terminated in
whole or in part until and unless all indebtedness of every kind, due or to
become due, owed by us to you is fully paid and satisfied and the terms of every
Account have been fully performed by us. It is further agreed that you are to
retain your security interest in all property covered by all Accounts held or
acquired by you, as security for payment and performance under each such
Account, notwithstanding the fact that one or more of such Accounts may become
fully paid.
This instrument is intended to create cross-default and cross-security
between and among all the within described Accounts now owned or hereafter
acquired by you.
A default under any Account or agreement shall be deemed to be a
default under all other Accounts and agreements. A default shall result if we
fail to pay any sum when due on any Account or agreement, or if we breach any of
the other terms and conditions thereof, or if we become insolvent, cease to do
business as a going concern, make an assignment for the benefit of creditors, or
if a petition for a receiver or in bankruptcy is filed by or against us, or if
any of our property is seized, attached or levied upon. Upon our default any or
all Accounts and agreements shall, at your option, become immediately due and
payable without notice or demand to us or any other party obligated thereon, and
you shall have and may exercise any and all rights and remedies of a secured
party under the Uniform Commercial Code as enacted in the applicable
jurisdiction and as otherwise granted to you under any Account or other
agreement. We hereby waive, to the maximum extent permitted by law, notices of
default, notices of repossession and sale or other disposition of collateral,
and all other notices, and in the event any such notice cannot be waived, we
agree that if such notice is mailed to us postage prepaid at the address shown
below at least five (5) days prior to the exercise by you of any of your rights
or remedies, such notice shall be deemed to be reasonable and shall fully
satisfy any requirement for giving notice.
All rights granted to you hereunder shall be cumulative and not
alternative, shall be in addition to and shall in no manner impair or affect
your rights and remedies under any existing Account, agreement, statute or rule
of law, and remedies under any existing Account, agreement, statute or rule of
law.
This agreement may not be varied or altered nor its provisions waived
except by your duly executed written agreement. This agreement shall inure to
the benefit of your successors and assigns and shall be binding upon our heirs.
administrators, executors, legal representatives, successors and assigns.
IN WITNESS WHEREOF, this agreement is executed this___ day of___, ___.
CYTOKINETICS, INCORPORATED
(Name of Proprietorship, Partnership or
Corporation, as applicable)
By: /s/ Xxxxx Xxxxx
--------------------------------------
(Signature)
Title:____________________________________
(Owner, Partner or Officer, as
applicable)
Address: 000 Xxxx Xxxxx Xxxxxx Xxxxx 0,
Xxxxx Xxx Xxxxxxxxx, XX 00000
