Exhibit 10.33
SPECIFIC SECURITY AGREEMENT
MARYLAND
DEBTOR: ADVANCIS PHARMACEUTICAL CORPORATION A(n) [ ] individual(s) [ X]
corporation [ ] limited liability company [ ] partnership [ ] _______ organized
and registered under the laws of the State of Delaware. Organizational
Identification Number (if any): 3143577 (Note: this number is not the same as
the Taxpayer Identification Number.) Chief executive office/residence: 00000
Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
SECURED PARTY: Manufacturers and Traders Trust Company, a New York banking
corporation with banking offices at One M&T Plaza, Buffalo, New York 14240,
Attn: General Counsel's Office.
For good and valuable consideration, the receipt and sufficiency of which is
acknowledged, and intending to be legally bound, Debtor agrees with Secured
Party as follows:
1. SECURITY INTERESTS.
Grant. As security for the prompt and complete payment and performance
when due of all of the Obligations, Debtor does hereby grant to Secured
Party a continuing security interest ("Security Interest") in all of
Debtors property INDICATED ON EXHIBIT A whether or not subject to the
Uniform Commercial Code as the same may be in effect in the State of
Maryland, as amended from time to time (the "UCC"), and whether or not
affixed to any realty including (i) all additions, accessions to,
substitutions for, or replacements of the foregoing; (ii) all proceeds
and products of the foregoing including insurance proceeds; and (iii)
all business records and information relating to any of the foregoing
and any software or other programs for accessing and manipulating such
information (collectively, the "Collateral").
1.1 Obligations. The term "Obligations" means any and all indebtedness
or other obligations of Debtor to Secured Party under the Credit Agreement by
and between the Bank and the Borrower of even date herewith.
2. COVENANTS. Debtor covenants and agrees as follows:
2.1 Perfection of Security Interest. Debtor shall execute and deliver
to Secured Party such financing statements, control agreements or other
documents, in form and content satisfactory to Secured Party, as Secured Party
may from time to time request to perfect and continue the Security Interest.
Upon the request of Secured Party, Debtor shall deliver to Secured Party any and
all instruments, chattel paper, negotiable documents or other documents
evidencing or constituting any part of the Collateral properly endorsed or
assigned, in a manner satisfactory to Secured Party. Until such delivery, Debtor
shall hold such portion of the Collateral in trust for Secured Party. Debtor
shall pay all expenses for the preparation, filing, searches and related costs
in connection with the grant and perfection of the Security Interest.
Debtor authorizes (both prospectively and retroactively) Secured Party to file
financing statements, and any continuations and amendments thereof, with respect
to the Collateral without Debtor's signature. A photocopy or other reproduction
of any financing statement or this Agreement shall be sufficient as a financing
statement for filing in any jurisdiction.
2.2 Negative Pledge; Disposition of Collateral. Debtor shall not grant
or allow the imposition of any lien, security interest or encumbrance on, or
assignment of, the Collateral unless consented to in writing by Secured Party
and the Maryland Industrial Development Financing Authority ("MIDFA"). Debtor
shall not make or permit to be made any sale, transfer or other disposition of
the Collateral; provided, however, prior to the occurrence of an Event of
Default, Debtor may in the ordinary course of business consistent with its past
practices and with prudent and standard practices used in the industry that is
the same or similar to that in which Debtor is engaged: (i) dispose of any
Collateral consisting of equipment that is obsolete or worn-out; (ii) sell or
exchange any Collateral consisting of equipment in connection with the
acquisition of other equipment that is at least as valuable as such equipment,
that Debtor intends to use for substantially the same purposes as such equipment
and that is not subject to any security interest or other lien or encumbrance;
(iii) collect Collateral consisting of accounts or assign such Collateral for
purposes of collection; or (iv) sell or lease Collateral consisting of
inventory. A sale, lease or other transfer of such Collateral consisting of
inventory in the ordinary course of Debtor's business does not include a
transfer in partial or complete satisfaction of any liability or obligation or
any bulk sale.
2.3 Condition of Collateral; Impermissible Use. Debtor shall keep the
Collateral consisting of goods in good condition (other than ordinary wear and
tear) and shall not commit or permit damage or destruction to such Collateral.
Debtor shall not permit (i) the Collateral consisting of goods to be used in
such a manner that would violate any insurance policy or warranty covering the
Collateral or that would violate any applicable law of any governmental
authority (including any environmental law) now or hereafter in effect; (iii)
the Collateral consisting of goods to become fixtures on any real property on
which Secured Party does not have a first priority mortgage lien (unless Secured
Party has been provided with an acceptable landlord/mortgagee waiver) or become
an accession to any goods not included in the Collateral; or (iii) any goods
included in the Collateral to be placed in any warehouse that may issue a
negotiable document with regard to such goods.
2.4 Modification to Collateral. Debtor shall not, without Secured
Party's prior written consent, grant any extension, compound, settlement for
less than full amount, release (in whole or in part), modification or
cancellation of, or substitution for, or credits or adjustments on Collateral
consisting of accounts, chattel paper, general intangibles, instruments,
documents, investment property, except that so long as no Event of Default is
then in existence, Debtor may grant to account debtors, or other persons
obligated with the Collateral, extensions, credits, discounts, compromises or
settlements in the ordinary course of business consistent with its past
practices and consistent with prudent and standard practices used in the
industries that are the same or similar to those in which Debtor is engaged.
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2.5 Titled Goods. Debtor shall cause all goods included in the
Collateral to be properly titled and registered to the extent required by
applicable law. Upon the request of Secured Party, Debtor shall cause the
interest of Secured Party to be properly indicated on any certificate of title
relating to such goods and deliver to Secured Party each such certificate, and
any additional evidence of ownership, certificates of origin or other documents
evidencing any interest in such goods.
2.6 Insurance. Debtor shall at its own expense, keep in force at all
times insurance covering damage to persons and against fire, flood, theft and
all other risks which the Collateral may be subject, all in such amounts, with
such deductibles and issued by such insurance company as shall be satisfactory
to Secured Party. Such insurance shall have all endorsements that Secured Party
may require and shall further (i) name Secured Party as an additional insured on
the casualty insurance and a lenders loss payable or mortgagee on the hazard
insurance; (ii) provide Secured Party with a minimum of 30 days prior written
notice of any amendment or cancellation; and (iii) insure Secured Party
notwithstanding any act or neglect of Debtor or other owner of the property
described in such insurance. If Debtor fails to obtain the insurance as provided
herein, Secured Party may, but is not obligated, to obtain such insurance as
Secured Party may deem appropriate including, if it so chooses, "single interest
insurance" which will cover only Secured Party's interest in the Collateral.
Debtor shall pay to Secured Party for the cost of such insurance. Secured Party
shall have the option to hold insurance proceeds as part of the Collateral,
apply any insurance proceeds toward the Obligations or apply the insurance
proceeds towards repair or replacement of the item of Collateral in respect of
which such proceeds were received. Upon the request of Secured Party, Debtor
shall from time to time deliver to Secured Party such insurance policies, or
other evidence of such policies satisfactory to Secured Party and such other
related information Secured Party may request.
2.7 Collateral Information. Debtor shall provide all information, in
form and substance satisfactory to Secured Party, that Secured Party shall from
time to time request to (i) identify the nature, extent, value, age and location
of any of the Collateral, or (ii) identify any account debtor or other party
obligated with respect to any chattel paper, general intangible, instrument,
investment property, document or deposit account included in the Collateral.
2.8 Financial Information. Debtor shall furnish to Secured Party
financial statements in such form (e.g., audited, reviewed, compiled) and at
such intervals as Secured Party shall request from time to time plus any
additional financial information that Secured Party may request. All such
financial statements shall be in conformity with generally accepted accounting
principles consistently applied.
2.9 Taxes; Licenses Compliance with Laws. Before the end of any
applicable grace period, Debtor shall pay each tax, assessment, fee and charge
imposed by any governmental authority upon the Collateral, the ownership,
disposition or use of any of the Collateral, this Agreement or any instrument
evidencing any of the Obligations. Debtor shall maintain in full force and
effect each license, franchise or other authorization needed for any ownership,
disposition or use of the Collateral and the conduct of its business, operations
or affairs. Debtor shall comply with all applicable law of any governmental
authority (including any environmental
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law), now or hereafter in effect, applicable to the ownership, disposition or
use of the Collateral or the conduct of its business, operations or affairs.
2.10 Records; Legend. Debtor shall maintain accurate and complete books
and records relating to the Collateral in conformity with generally accepted
accounting principles consistently applied. At Secured Party's request, Debtor
will legend, in form and manner satisfactory to Secured Party, its books and
records to indicate the Security Interest.
2.11 Notifications of Change. Immediately upon acquiring knowledge or
reason to know of any of the following, Debtor shall notify Secured Party of the
occurrence or existence of (i) any Event of Default; (ii) any event or condition
that, after notice, lapse of time or after both notice and lapse of time, would
constitute an Event of Default; (iii) any account or general intangible that
arises out of a contract with any governmental authority (including the United
States); (iv) any event or condition that has or (so far as can be foreseen)
will or might have any material adverse effect on the Collateral (including a
material loss destruction or theft of, or of any damage to, the Collateral,
material decline in value of the Collateral or a material default by an account
debtor or other party's performance of obligations with respect to the
Collateral), on Debtor or its business, operations, affairs or condition
(financial or otherwise).
2.12 Protection of Collateral; Further Assurances. Debtor shall, at its
own cost, faithfully preserve, defend and protect the Security Interest as a
prior perfected security interest in the Collateral under the UCC and other
applicable law, superior and prior to the rights of all third parties (other
than those permitted pursuant to Section 3.1) and shall defend the Collateral
against all setoffs, claims, counterclaims, demands and defenses. At the request
of Secured Party, Debtor shall do, obtain, make, execute and deliver all such
additional and further acts, things, deeds, assurances and instruments as
Secured Party may deem necessary or advisable from time to time in order to
attach, continue, preserve, perfect or protect the Security Interest and Secured
Party's rights hereunder including obtaining waivers (in form and content
acceptable to Secured Party) from landlords, warehousemen and mortgagees. Debtor
hereby irrevocably appoints Secured Party, its officers, employees and agents,
or any of them, as attorneys-in-fact for Debtor with full power and authority in
the place and stead of Debtor and in the name of Debtor or its own name from
time to time in Secured Party's discretion, to perform all acts which Secured
Party deems appropriate to attach, continue, preserve or perfect and continue
the Security Interest, including signing for Debtor (to the extent such
signature may be required by applicable law) UCC-1 financing statements and
UCC-3 Statements of Change or to accomplish the purposes of this Agreement. This
power of attorney, being coupled with an interest, is irrevocable and shall not
be affected by the subsequent disability or incompetence of Debtor.
3. REPRESENTATIONS AND WARRANTIES. Debtor represents, warrants and agrees as
follows:
3.1 Title. Debtor holds good and marketable title to the Collateral
free and clear from any security interest or other lien or encumbrance of any
party and MIDFA, other than the Security Interest or such liens, security
interests or other liens or encumbrances specifically permitted by Secured Party
and set forth on Exhibit A hereto ("Permitted Liens"). Debtor has
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not made any prior sale, pledge, encumbrance, assignment or other disposition of
any of the Collateral except for the Permitted Liens.
3.2 Authority. If Debtor is a business entity, it is duly organized,
validly existing and in good standing under the laws of the above-named state of
organization. Debtor has the full power and authority to grant the Security
Interest and to execute, deliver and perform its obligations in accordance with
this Agreement. The execution and delivery of this Agreement will not (i)
violate any applicable law of any governmental authority or any judgment or
order of any court, other governmental authority or arbitrator; (ii) violate any
agreement governing Debtor or to which Debtor is a party; or (iii) result in a
security interest or other lien or encumbrance on any of its assets. Debtors
certificate of incorporation, by-laws or other organizational documents do not
prohibit any term or condition of this Agreement. Each authorization, approval
or consent from, each registration and filing with, each declaration and notice
to, and each other act by or relating to, any party required as a condition of
Debtor's execution, delivery or performance of this Agreement (including any
shareholder or board of directors or similar approvals) has been duly obtained
and is in full force and effect. Debtor has the power and authority to transact
the business in which it is engaged and is duly licensed or qualified and in
good standing in each jurisdiction in which the conduct of its business or
ownership of property requires such licensing or such qualification.
3.3 Judgments and Litigation. There is no pending or threatened claim,
audit, investigation, action or other legal proceeding or judgment or order of
any court, agency or other governmental authority or arbitrator which involves
Debtor or the Collateral and which might have a material adverse effect upon the
Collateral, the Debtor, its business, operations, affairs or condition
(financial or otherwise), or threaten the validity of this Agreement or any
related document or action. Debtor will immediately notify Secured Party upon
acquiring knowledge of the foregoing.
3.4 Enforceability of Collateral. Instruments, chattel paper, accounts
or documents which constitute any part of the Collateral are genuine and
enforceable in accordance with their terms, comply with the applicable law of
any governmental authority concerning form, content, manner of preparation and
execution, and all persons appearing to be obligated on such Collateral have
authority and capacity to contract and are in fact obligated as they appear to
be on such Collateral. There are no restrictions on any assignment or other
transfer or grant of the Security Interest by Debtor. Each sum represented by
Debtor from time to time as owing on accounts, instruments, deposit accounts,
chattel paper and general intangibles constituting any part of the Collateral by
account debtors and other parties with respect to such Collateral is the sum
actually and unconditionally owing by account debtors and other parties with
respect thereto at such time, except for applicable normal cash discounts. None
of the Collateral is subject to any defense, set-off, claim or counterclaim of a
material nature against Debtor except as to which Debtor has notified Secured
Party and MIDFA in writing.
3.5 Location of Chief Executive Office, Records, Collateral. The
locations of the following are listed on page one of this Agreement or, if
different or additional, on Exhibit A hereto: (i) Debtor's residence, principal
place of business and chief executive office; (ii) the
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office in which Debtor maintains its books or records relating to the
Collateral; (iii) the facility (including any storage facility) at which now
owned or subsequently acquired inventory, equipment and fixtures constituting
any part of the Collateral shall be kept; and (iv) the real property on which
any crop included in the Collateral is growing or is to be grown, or on which
any timber constituting any part of the Collateral is or is to be standing.
Debtor will not effect or permit any change in any of the foregoing locations
(or remove or permit the removal of the records or Collateral therefrom, except
for mobile equipment included in the Collateral which may be moved to another
location for not more than 30 days) without 30 days prior written notice to
Secured Party and all actions deemed necessary by Secured Party to maintain the
Security Interest intended to be granted hereby at all times fully perfected and
in full force and effect have been taken. All of the locations listed on page
one of Exhibit A are owned by Debtor, or if not, by the party(ies) identified on
Exhibit A.
3.6 Structure; Name. Debtor's organizational structure, state of
registration and organizational identification number (if any) are stated
accurately on page one of this Agreement, and its full legal name and any trade
name used to identify it are stated accurately on page one of this Agreement, or
if different or additional are listed on Exhibit A hereto. Debtor will not
change its name, any trade names or its identity, its organizational structure,
state of registration or organizational identification number, without 30 days
prior written notice to Secured Party and MIDFA. All actions deemed necessary by
Secured Party to maintain the Security Interest intended to be granted hereby at
all times fully perfected and in full force and effect have been taken.
4. PERFORMANCE AND EXPENDITURES BY SECURED PARTY. If Debtor fails to perform or
comply with any of the terms hereof, Secured Party, at its option, but without
any obligation so to do, may perform or comply, or otherwise cause performance
or compliance, with such terms including the payment or discharge of all taxes,
fees, security interest or other liens, encumbrances or claims, at any time
levied or placed on the Collateral. An election to make expenditures or to take
action or perform an obligation of Debtor under this Agreement, after Debtor's
failure to perform, shall not affect Secured Party's right to declare an Event
of Default and to exercise its remedies. Nor shall the provisions of this
Section relieve Debtor of any of its obligations hereunder with respect to the
Collateral or impose any obligation on Secured Party to proceed in any
particular manner with respect to the Collateral.
5. DUTY OF SECURED PARTY. Secured Party's sole duty with respect to the custody,
safekeeping and physical preservation of the Collateral in its possession shall
be to deal with it in the same manner as Secured Party deals with similar
property for its own account. Neither Secured Party nor its directors, officers,
employees or agents shall be liable for failure to demand, collect or realize
upon the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of the Collateral upon the request of
Debtor or any other person or to take any other action whatsoever with regard to
the Collateral. The powers conferred on Secured Party hereunder are solely to
protect Secured Party's interests in the Collateral and shall not impose any
duty upon any Secured Party to exercise any such powers. Secured Party shall be
accountable only for amounts that it actually receives as a result of the
exercise of its powers under this Agreement, and neither it nor its officers,
directors, employees
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or agents shall be responsible to Debtor for any act or failure to act
hereunder, except for its own gross negligence or willful misconduct.
6. CERTAIN RIGHTS AND REMEDIES.
6.1 Inspection; Verification. Secured Party, and such persons as it may
designate, shall have the right from time to time to (i) audit and inspect (a)
the Collateral, (b) all books and records related thereto (and make extracts and
copies from such records), and (c) the premises upon which any of the Collateral
or books and records may be located; (ii) discuss Debtors business, operations,
affairs or condition (financial or otherwise) with its officers, accountants;
and (iii) verify the validity, amount, quality, quantity, value, condition and
status of, or any other matter relating to the Collateral in any manner and
through any medium Secured Party may consider appropriate (including contacting
account debtors or third party possessing the Collateral for purpose of making
such verification). Debtor shall furnish all assistance and information and
perform any acts Secured Party may require regarding thereto. Debtor shall bear
the cost and expense of any such inspection and verification.
6.2 Application of Proceeds. Secured Party may apply the proceeds from
the sale, lease or other disposition or realization upon the Collateral to the
Obligations in such order and manner and at such time as Secured Party shall, in
its sole discretion, determine. Debtor waives and agrees not to assert any
rights it may have or acquire under current Section 9-112 of the UCC (or any
subsequent amendment thereto). Debtor shall remain liable for any deficiency if
the proceeds of any sale, lease or other disposition or realization upon the
Collateral are insufficient to pay the Obligations. Any proceeds received by
Debtor from the Collateral after an Event of Default shall (i) be held by Debtor
in trust for Secured Party in the same medium in which received; (ii) not be
commingled with any assets of Debtor; and (iii) be delivered to Secured Party in
the form received, properly indorsed to permit collection. After an Event of
Default, Debtor shall promptly notify Secured Party of the return to or
repossession by Debtor of goods constituting part of the Collateral, and Debtor
shall hold the same in trust for Secured Party and shall dispose of the same as
Secured Party directs.
7. DEFAULT.
Events of Default.
Any of the following events or conditions shall constitute an "Event of
Default": (i) failure by the Debtor to pay when due (whether at the stated
maturity, by acceleration, upon demand or otherwise) the Obligations, or any
part thereof, or there occurs any event or condition which after notice, lapse
of time or after both notice and lapse of time will permit acceleration of any
Obligation; (ii) the Debtor shall default in the performance or observance of
any term, covenant, condition or agreement contained in this Agreement or any
other Transaction Document and such default shall continue for a period of
thirty (30) days after written notice thereof has been given to the Debtor by
the Bank; (iii) any representation or warranty made by the Debtor under this
Agreement, or any other Transaction Document, shall at any time prove to have
been incorrect or misleading in any material respect when made or deemed made;
(iv) the Debtor shall
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(A) default in making any payment when due under any Debt and fail to cure such
default during the period of grace, if any, provided for such default, or (B)
default in the observance or performance of any other covenant or agreement
contained in any document relating to any Debt, and fail to cure such default
during the period of grace, if any, provided for such cure, the effect of which
default is to cause, or to permit the holder of such Debt (or a trustee or agent
on behalf of such holder or holders) to cause, with the giving of notice as
required, any such Debt to become due prior to its stated maturity. The term
"Debt" means any obligation of the Debtor for borrowed money, or for the
deferred purchase price of property, in which the outstanding amount of the
obligation exceeds $100,000; (v) the Debtor makes a general assignment,
arrangement or composition agreement with or for the benefit of its creditors or
makes, or sends notice of any intended, bulk sale; the sale, assignment,
transfer or delivery of all or substantially all of the assets of the Debtor to
a third party; or the cessation by the Debtor as a going business concern; (vi)
the Debtor files a petition in bankruptcy or institutes any action under federal
or state law for the relief of debtors or seeks or consents to the appointment
of an administrator, receiver, custodian or similar official for the wind up of
its business (or has such a petition or action filed against it and such
petition action or appointment is not dismissed or stayed within forty-five (45)
days; (vii) the entry of any judgment in excess of $250,000 or order of any
court, other governmental authority or arbitrator against the Debtor and such
judgment or order is not paid, dismissed or a bond posted therefor within thirty
(30) days after the entry thereof; (viii) intentional omission or intentional
inaccuracy of facts submitted to the Bank or any Affiliate (whether in a
financial statement or otherwise); (ix) an adverse change in the Debtor, its
business, operations, affairs or condition (financial or otherwise) which change
the Bank determines will have a material adverse effect on Debtor the ability of
the Debtor to pay or perform the Obligations; (x) any pension plan of the Debtor
fails to comply with applicable law or has vested unfunded liabilities that, in
the opinion of the Bank, might have a material adverse effect on the Debtors
ability to repay its debts; (xi) any indication or evidence received by the Bank
that the Debtor may have directly or indirectly been engaged in any type of
activity which, in the Bank's discretion, might result in the forfeiture or any
property of the Debtor to any governmental authority; (xii) the occurrence of
any event described in Section 7(a)(i) through and including 7(a)(xi) with
respect to any Subsidiary or to any endorser, guarantor or any other party
liable for, or whose assets or any interest therein secures, payment of any of
the Obligations; or (xiii) MIDFA notifies the Bank without the Bank's prior
written consent, that its insurance of the Bank for repayment of the Equipment
Line is no longer effective or is terminated, as a result of any act or omission
of the Debtor.
7.1 Rights and Remedies Upon Default. Upon the occurrence of any Event of
Default, Secured Party without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law) to or upon Debtor or any other person (all and each of which
demands, presentments, protests, advertisements and notices are hereby waived),
may exercise all rights and remedies of a secured party under the UCC, under
other applicable law, in equity or otherwise or available under in this
Agreement including:
7.1.1 Obligations Immediately Due; Termination of Lending. Secured Party
may declare all or any part of any Obligations not payable on demand to be
immediately due
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and payable without demand or notice of any kind. All or any part of any
Obligations whether or not payable on demand, shall be immediately due and
payable automatically upon the occurrence of an Event of Default in
Section 7.1 (vi) above. The provisions hereof are not intended in any way
to affect any rights of Secured Party with respect to any Obligations
which may now or hereafter be payable on demand. Secured Party may
terminate any obligation it may have to grant any additional loan, credit
or other financial accommodation to Debtor.
7.1.2 Access to Collateral. Secured Party, or its agents, may peaceably
retake possession of the Collateral with or without notice or process of
law, and for that purpose may enter upon any premises where the Collateral
is located and remove the same. At Secured Party's request, Debtor shall
assemble the Collateral and deliver it to Secured Party or any place
designated by Secured Party, at Debtor's expense.
7.1.3 Sell Collateral. Secured Party shall have the right to sell, lease
or otherwise dispose of the Collateral in one or more parcels at public or
private sale or sales upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or
for future delivery without assumption of any credit risk. Each purchaser
at any such sale shall hold the property sold absolutely, free from any
claim or right on the part of Debtor. Debtor hereby waives (to the extent
permitted by law) all rights of redemption, stay and appraisal which
Debtor now has or may at any time in the future have under any applicable
law now existing or hereafter enacted. Secured Party shall have the right
to use Debtor's premises and any materials or rights of Debtor (including
any intellectual property rights) without charge for such sales or
disposition of the Collateral or the completion of any work in progress
for such times as Secured Party may see fit. Without in any way requiring
notice to be given in the following time and manner, Debtor agrees that
with respect to any notice by Secured Party of any sale, lease or other
disposition or realization or other intended action hereunder or in
connection herewith, whether required by the UCC or otherwise, such notice
shall be deemed reasonable and proper if given at least five (5) days
before such action in the manner described below in the Section entitled
"Notices".
7.1.4 Collect Revenues. Secured Party may either directly or through a
receiver (i) demand, collect and xxx on any Collateral consisting of
accounts or any other Collateral including notifying account debtors or
any other persons obligated on the Collateral to make payment on the
Collateral directly to Secured Party; (ii) file any claim or to take any
other action or proceeding in any court of law or equity or otherwise
deemed appropriate by Secured Party with respect to the Collateral or to
enforce any other right in respect of the Collateral; (iii) take control,
in any manner, of any payment or proceeds from the Collateral; (iv)
prosecute or defend any suit, action or proceeding brought against Debtor
with respect to the Collateral; (v) settle, compromise or adjust any and
all claims arising under the Collateral or, to give such discharges or
releases as Secured Party may deem appropriate; (vi) receive and collect
all mail addressed to Debtor, direct the place of delivery thereof to any
location designated by Secured Party; to open such mail; to remove all
contents therefrom; to retain all contents thereof constituting or
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relating to the Collateral; (vii) execute, sign or endorse any and all
claims, endorsements, assignments, checks or other instruments with
respect to the Collateral; or (viii) generally, use, sell, transfer,
pledge and make any agreement with respect to or otherwise deal with any
of the Collateral; and Debtor hereby irrevocably appoints Secured Party,
its officers, employees and agents, or any of them, as attorneys-in-fact
for Debtor with full power and authority in the place and stead of Debtor
and in the name of Debtor or in its own name from time to time in Secured
Party's discretion, to take any and all appropriate action Secured Party
deems necessary or desirable to accomplish any of the foregoing or
otherwise to protect, preserve, collect or realize upon the Collateral or
to accomplish the purposes of this Agreement. Debtor revokes each power of
attorney (including any proxy) heretofore granted by Debtor with regard to
the Collateral. This power of attorney, being coupled with an interest, is
irrevocable and shall not be affected by the subsequent disability or
incompetence of Debtor.
7.1.5 Setoff. Secured Party may place an administrative hold on and set
off against the Obligations any property held in a deposit or other
account with Secured Party or any of its Affiliates or otherwise owing by
Secured Party or any of its Affiliates in any capacity to Debtor. Such
set-off shall be deemed to have been exercised immediately at the time
Secured Party or such Affiliate elects to do so.
8. EXPENSES. Debtor shall pay to Secured Party on demand all costs and expenses
(including all reasonable fees and disbursements of all counsel retained for
advice, suit, appeal or other proceedings or purpose and of any experts or
agents it may retain), which Secured Party may incur in connection with (i) the
administration of this Agreement, including any administrative fees Secured
Party may impose for the preparation of discharges, releases or assignments to
third-parties; (ii) the custody or preservation of, or the sale, lease or other
disposition or realization on the Collateral; (iii) the enforcement and
collection of any Obligations or any guaranty thereof; (iv) the exercise,
performance enforcement or protection of any of the rights of Secured Party
hereunder; or (v) the failure of Debtor to perform or observe any provisions
hereof. After such demand for payment of any cost, expense or fee under this
Section or elsewhere under this Agreement, Debtor shall pay interest at the
highest default rate specified in any instrument evidencing any of the
Obligations from the date payment is demanded by Secured Party to the date
reimbursed by Debtor. All such costs, expenses or fees under this Agreement
shall be added to the Obligations.
9. INDEMNIFICATION. Debtor shall indemnify Secured Party and its Affiliates and
each officer, employee, accountant, attorney and other agent thereof (each such
person being an "Indemnified Party") on demand, without any limitation as to
amount, against each liability, cost and expense (including all reasonable fees
and disbursements of all counsel retained for advice, suit, appeal or other
proceedings or purpose, and of any expert or agents an Indemnified Party may
retain) heretofore or hereafter imposed on, incurred by or asserted against any
Indemnified Party (including any claim involving any allegation of any violation
of applicable law of any governmental authority (including any environmental law
or criminal law)), however asserted and whether now existing or hereafter
arising, arising out of any ownership, disposition or use of any of the
Collateral; provided, however, the foregoing indemnity shall not apply to
liability,
10
cost or expense solely attributable to an Indemnified Party's gross negligence
or willful misconduct. This indemnity agreement shall survive the termination of
this Agreement. Any amounts payable under this or any other section of this
Agreement shall be additional Obligations secured hereby.
10. MISCELLANEOUS.
10.1 Notices. Any demand or notice hereunder or under any applicable law
pertaining hereto shall be in writing and duly given if delivered to Debtor (at
its address on Secured Party's records) or to Secured Party (at the address on
page one and separately to Secured Party's officer responsible for Debtor's
relationship with Secured Party). Such notice or demand shall be deemed
sufficiently given for all purposes when delivered (i) by personal delivery and
shall be deemed effective when delivered, or (ii) by mail or courier and shall
be deemed effective three (3) business days after deposit in an official
depository maintained by the United States Post Office for the collection of
mail or one (1) business day after delivery to a nationally recognized overnight
courier service (e.g., Federal Express). Notice by e-mail is not valid notice
under this or any other agreement between Debtor and Secured Party.
10.2 Governing Law; Jurisdiction. This Agreement has been delivered to and
accepted by Secured Party and will be deemed to be made in the State of
Maryland. Except as otherwise provided under federal law, this Agreement will be
interpreted in accordance with the laws of the State of Maryland excluding its
conflict of laws rules. DEBTOR HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE STATE OF MARYLAND WHERE
SECURED PARTY MAINTAINS A BRANCH AND CONSENTS THAT SECURED PARTY MAY EFFECT ANY
SERVICE OF PROCESS IN THE MANNER AND AT DEBTOR'S ADDRESS SET FORTH ABOVE FOR
PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING CONTAINED IN THIS AGREEMENT
WILL PREVENT SECURED PARTY FROM BRINGING ANY ACTION, ENFORCING ANY AWARD OR
JUDGMENT OR EXERCISING ANY RIGHTS AGAINST DEBTOR INDIVIDUALLY, AGAINST ANY
SECURITY OR AGAINST ANY PROPERTY OF DEBTOR WITHIN ANY OTHER COUNTY, STATE OR
OTHER FOREIGN OR DOMESTIC JURISDICTION. Debtor acknowledges and agrees that the
venue provided above is the most convenient forum for both Secured Party and
Debtor. Debtor waives any objection to venue and any objection based on a more
convenient forum in any action instituted under this Agreement.
10.3 Security Interest Absolute. All rights of Secured Party hereunder,
the Security Interest and all obligations of Debtor hereunder shall be absolute
and unconditional irrespective of (i) any filing by or against Debtor of any
petition in bankruptcy or any action under federal or state law for the relief
of debtors or the seeking or consenting to of the appointment of an
administrator, receiver, custodian or similar officer for the wind up of its
business; (ii) any lack of validity or enforceability of any agreement with
respect to any of the Obligations, (iii) any change in the time, manner or place
of payment of, or in any other term of, all or any of the Obligations, or any
other amendment or waiver of or any consent to any departure from any agreement
or instrument with respect to the Obligations, (iv) any exchange, release or
non-
11
perfection of any lien or any release or amendment or waiver of or consent under
or departure from any guarantee, securing or guaranteeing all or any of the
Obligations, or (v) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, Debtor in respect of the Obligations or
this Agreement. If, after receipt of any payment of all or any part of the
Obligations, Secured Party is for any reason compelled to surrender such payment
to any person or entity, because such payment is determined to be void or
avoidable as a preference, impermissible setoff, or a diversion of trust funds,
or for any other reason, such payment shall be reinstated as part of the
Obligations and this Agreement shall continue in full force notwithstanding any
contrary action which may have been taken by Secured Party in reliance upon such
payment, and any such contrary action so taken shall be without prejudice to
Secured Party's rights under this Agreement and shall be deemed to have been
conditioned upon such payment having become final and irrevocable.
10.4 Remedies Cumulative; Preservation of Rights. The rights and remedies
herein are cumulative, may be exercised singly or concurrently and are not
exclusive of any other rights or remedies which Secured Party may have under
other agreements now or hereafter in effect between Debtor and Secured Party, at
law (including under the UCC) or in equity. No failure or delay of Secured Party
in exercising any power or right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. Debtor expressly disclaims any reliance on any course of dealing
or usage of trade or oral representation of Secured Party including
representations to make loans to Debtor. No notice to or demand on Debtor in any
case shall entitle Debtor to any other or further notice or demand in similar or
other circumstances.
10.5 Joint and Several; Successors and Assigns. If there is more than one
Debtor, each of them shall be jointly and severally liable for all amounts,
which become due, and the performance of all obligations under this Agreement
and the term "Debtor" shall include each as well as all of them. This Agreement
shall be binding upon Debtor and upon its heirs and legal representatives, its
successors and assignees, and shall inure to the benefit of, and be enforceable
by, Secured Party, its successors and assignees and each direct or indirect
assignee or other transferee of any of the Obligations; provided, however, that
this Agreement may not be assigned by Debtor without the prior written consent
of Secured Party and MIDFA.
10.6 Waivers; Changes in Writing. No course of dealing or other conduct,
no oral agreement or representation made by Secured Party or usage of trade
shall operate as a waiver of any right or remedy of Secured Party. No waiver of
any provision of this Agreement or consent to any departure by Debtor therefrom
shall in any event be effective unless made specifically in writing by Secured
Party and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No modification to any provision
of this Agreement shall be effective unless made in writing in an agreement
signed by Debtor and Secured Party with the consent of MIDFA.
10.7 Interpretation. Unless the context otherwise clearly requires,
references to plural includes the singular and references to the singular
include the plural; the word "or" has the
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inclusive meaning represented by the phrase "and/or"; the word "including",
"includes" and "include" shall be deemed to be followed by the words "without
limitation"; and captions or section headings are solely for convenience and not
part of the substance of this Agreement. Any representation, warranty, covenant
or agreement herein, shall survive execution and delivery of this Agreement and
shall be deemed continuous. Each provision of this Agreement shall be
interpreted as consistent with existing law and shall be deemed amended to the
extent necessary to comply with any conflicting law. If any provision
nevertheless is held invalid, the other provisions shall remain in effect.
Debtor agrees that in any legal proceeding, a photocopy of this Agreement kept
in Secured Party's course of business may be admitted into evidence as an
original. Terms not otherwise defined in this Agreement shall have the meanings
attributed to such terms in the UCC.
10.8 Waiver of Jury Trial. DEBTOR AND SECURED PARTY HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY DEBTOR AND
SECURED PARTY MAY HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN
CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTIONS RELATED HERETO. DEBTOR
REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF SECURED PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SECURED PARTY WILL NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THIS JURY TRIAL WAIVER. DEBTOR ACKNOWLEDGES THAT
SECURED PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE PROVISIONS OF THIS SECTION.
WITNESS the due execution hereof as a SEALED INSTRUMENT this 31st day
_____________
of July, 2003.
ADVANCIS PHARMACEUTICAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx (L.S.)
---------------------------------
Its: Senior VP/CFO
--------------------------------
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ACKNOWLEDGMENT
STATE OF___________________)
:SS.
COUNTY OF__________________)
On the ________day of July, in the year 2003, before me, the undersigned,
a Notary Public in and for said State, personally appeared
_____________________________, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individuals(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
/s/
--------------------------------------
Notary Public
------------------------------------------------------------------------------
FOR SECURED PARTY USE ONLY:
Authorization confirmed:______________________________________________________
If Debtor's Obligations arise under a guaranty in favor of Secured Party, list
the name of each party whose indebtedness is being guaranteed under such
guaranty:
-----------------------------------------------------------------------------
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Exhibit A
1. Grant (Section 1.1): Debtor grants the Security Interest in its property
described below (xxxx applicable box):
[x] SPECIFIC EQUIPMENT. If marked here, in the following described equipment,
including equipment which is or becomes fixtures: The equipment listed on
Exhibit A-1 attached hereto together with all present and future documents
of title and trust receipts relating to any of the foregoing; all present
and future rights, claims and causes of action of Debtor in connection
with purchases of (or contracts for the purchase of), or warranties
relating to, or damages to, the foregoing; all present and future
warranties, manuals and other written materials (and packaging thereof or
relating thereto) relating to any of the foregoing; and all present and
future general intangibles of Debtor in any way relating to any of the
foregoing.
2. Permitted Liens (Section 3.1)
Permit any of its assets to be subject to any security interest, mortgage
or other lien or encumbrance, except as set forth on the Schedule titled
"Permitted Liens" and except for liens for property taxes not yet due;
pledges and deposits to secure obligations or performance for workers'
compensation, bids, tenders, contracts other than notes, appeal bonds or
public or statutory obligations; and materialmen's, mechanics', carriers'
and similar liens arising in the normal course of business.
3. Residence, principal place of business or chief executive office
(Section 3.5(i))
00000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 owned by Xxxxxx
Xxxxxxx Xxxxxxxxx Xxxxxx XX, X.X.X.
0. Location of Books and Records (Section 3.5(ii))
00000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 owned by Xxxxxx
Xxxxxxx Xxxxxxxxx Xxxxxx XX, X.X.X.
0. Location of Inventory, Equipment, Fixtures, Crops, or Timber
(Section 3.5(iii) and Section 3.5(iv))
00000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 owned by Xxxxxx
Xxxxxxx Xxxxxxxxx Xxxxxx XX, X.X.X.
0. Locations Not Owned by Debtor and Name of Record Owner (Section 3.5)
00000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 owned by Seneca
Xxxxxxx Corporate Center II L.L.C.
7. Trade Name, "Doing Business As" Name or Assumed Name (Section 3.6)
2
