Exhibit 10.22
SECURITIES ACCOUNT CONTROL AGREEMENT
XXXXX FARGO (XXXXX FARGO LENDER INTERMEDIARY)
THIS SECURITIES ACCOUNT CONTROL AGREEMENT (this "Agreement") is entered into as
of DECEMBER 19, 2003, by and among NASTECH PHARMACEUTICAL COMPANY INC.
("Customer"), XXXXX FARGO BANK, NATIONAL ASSOCIATION, acting through its
Investment Group ("Intermediary"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION,
acting through its BELLEVUE RCBO Office ("Secured Party").
RECITALS
A. Customer maintains that certain account no. 00000000, and may now or
hereafter maintain sub-accounts thereunder or consolidated therewith
(collectively, the "Securities Account") with Intermediary pursuant to an
agreement between Intermediary and Customer dated as of JUNE 6, 2003 (the
"Account Agreement"), and Customer has granted to Secured Party a security
interest in the Securities Account and all financial assets and other property
now or at any time hereafter held in the Securities Account.
B. Secured Party, Customer and Intermediary have agreed to enter into this
Agreement to perfect Secured Party's security interests in the Collateral, as
defined below.
NOW, THEREFORE, in consideration of their mutual covenants and promises, the
parties agree as follows:
1. DEFINITIONS. As used herein:
1.1 the term "Collateral" shall mean: (a) the Securities Account; (b) all
financial assets credited to the Securities Account; (c) all security
entitlements with respect to the financial assets credited to the Securities
Account; (d) any and all other investment property or assets maintained or
recorded in the Securities Account; and (e) all replacements or substitutions
for, and proceeds of the sale or other disposition of, any of the foregoing,
including without limitation, cash proceeds; and
1.2 the terms "investment property," "entitlement order," "financial asset"
and "security entitlement" shall have the respective meanings set forth in the
Washington Uniform Commercial Code. The parties hereby expressly agree that all
property, including without limitation, cash, certificates of deposit and mutual
funds, at any time held in the Securities Account is to be treated as a
"financial asset."
2. AGREEMENT FOR CONTROL. Intermediary is authorized by Customer and
agrees to comply with all entitlement orders originated by Secured Party with
respect to the Securities Account, and all other requests or instructions from
Secured Party regarding disposition and/or delivery of the Collateral, without
further consent or direction from Customer or any other party.
3. CUSTOMER'S RIGHTS WITH RESPECT TO THE COLLATERAL.
3.1 Until Intermediary is notified otherwise by Secured Party: (a)
Customer, or any party authorized by Customer to act with respect to the
Securities Account, may give trading instructions to Intermediary with respect
to Collateral in the Securities Account; and (b) Intermediary may distribute to
Customer or any other party in accordance with Customer's directions only that
portion of the Collateral which consists of interest and/or cash dividends
earned on financial assets maintained in the Securities Account.
3.2 Without Secured Party's prior written consent, except to the extent
permitted by the preceding paragraph: (a) neither Customer nor any party other
than Secured Party may withdraw any Collateral from the Securities Account; and
(b) Intermediary will not comply with any entitlement order or request to
withdraw any Collateral from the Securities Account given by any party other
than Secured Party.
3.3 Upon receipt of either written or oral notice from Secured Party: (a)
Intermediary shall promptly cease complying with entitlement orders and other
instructions concerning the Collateral, including the Securities Account, from
all parties other than Secured Party; and (b) Intermediary shall not make any
further distributions of any Collateral to any party other than Secured Party,
nor permit any further voluntary changes in the financial assets.
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4. INTERMEDIARY'S ACKNOWLEDGMENTS. Intermediary acknowledges that:
4.1 The Securities Account is maintained with Intermediary solely in
Customer's name.
4.2 Intermediary has no knowledge of any claim to, security interest in or
lien upon any of the Collateral, except: (a) the security interests in favor of
Secured Party; and (b) Intermediary's liens securing fees and charges, or
payment for open trade commitments, as described in the last paragraph of this
Section.
4.3 Any claim to, security interest in or lien upon any of the Collateral
which Intermediary now has or at any time hereafter acquires shall be junior and
subordinate to the security interests of Secured Party in the Collateral, except
for Intermediary's liens securing: (a) fees and charges owed by Customer with
respect to the operation of the Securities Account; and (b) payment owed to
Intermediary for open trade commitments for purchases in and for the Securities
Account.
5. AGREEMENTS OF INTERMEDIARY AND CUSTOMER. Intermediary and Customer
agree that:
5.1 Intermediary shall flag its books, records and systems to reflect
Secured Party's security interests in the Collateral, and shall provide notice
thereof to any party making inquiry as to Customer's accounts with Intermediary
to whom or which Intermediary is legally required or permitted to provide
information.
5.2 Intermediary shall send copies of all statements relating to the
Securities Account simultaneously to Customer and Secured Party.
5.3 Intermediary shall promptly notify Secured Party if any other party
asserts any claim to, security interest in or lien upon any of the Collateral,
and Intermediary shall not enter into any control, custodial or other similar
agreement with any other party that would create or acknowledge the existence of
any such other claim, security interest or lien.
5.4 Without Secured Party's prior written consent, Intermediary and
Customer shall not amend, modify or terminate the Account Agreement, other than:
(a) amendments to reflect ordinary and reasonable changes in Intermediary's fees
and charges for handling the Securities Account; and (b) operational changes
initiated by Intermediary as long as they do not alter any of Secured Party's
rights hereunder.
6. MISCELLANEOUS.
6.1 This Agreement shall not create any obligation or duty of Intermediary
except as expressly set forth herein.
6.2 In the event of any conflict between this Agreement and the Account
Agreement or any other agreement between Intermediary and Customer, the terms of
this Agreement shall control.
6.3 All notices, requests and demands which any party is required or may
desire to give to any other party under any provision of this Agreement must be
in writing (unless otherwise specifically provided) and delivered to each party
at the address or facsimile number set forth below its signature, or to such
other address or facsimile number as any party may designate by written notice
to all other parties. Each such notice, request and demand shall be deemed given
or made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
facsimile, upon receipt; and (c) if sent by mail, upon the earlier of the date
of receipt or 3 days after deposit in the U.S. mail, first class and postage
prepaid.
6.4 This Agreement shall be binding upon and inure to the benefit of the
heirs, executors, administrators, legal representatives, successors and assigns
of the parties. This Agreement may be amended or modified only in writing signed
by all parties hereto.
6.5 This Agreement shall terminate upon Intermediary's receipt of written
notice from Secured Party expressly stating that Secured Party no longer claims
any security interest in the Collateral.
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6.6 This Agreement shall be governed by and construed in accordance with
the laws of the State of Washington.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
XXXXX FARGO BANK, XXXXX FARGO BANK,
NATIONAL ASSOCIATION, NATIONAL ASSOCIATION
acting through its acting through its
Investment Group Bellevue RCBO Office
By: /s/ XXXX XXXXX By: /s/ XXXXXX XXXXX
____________________________ __________________________________
Xxxxxx Xxxxx, Relationship Manager
Title: CLIENT ADMIN.
_________________________
Address: 000 000XX XXXXXX, XX, XXXXX 000
Address: 000 XXXXXX XX., 00XX XXXXX XXXXXXXX, XX 00000
XXX XXXXXXXXX, XX 00000 FAX No.: (000)000-0000
FAX No.: (000)000-0000
Nastech Pharmaceutical Company Inc.
By:/s/ Xxxxxx Xxxx
----------------------------
Xxxxxx Xxxx, CEO
By:/s/ Xxxx Xxxxxx
----------------------------
Xxxx Xxxxxx, CFO
Address: 0000 XXXXX XXXXX XXXXXXX
XXXXXXX, XX 00000
FAX No.: (000) 000-0000
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SECURITY AGREEMENT
XXXXX FARGO SECURITIES ACCOUNT
1. GRANT OF SECURITY INTEREST. For valuable consideration, the undersigned
NASTECH PHARMACEUTICAL COMPANY INC., or any of them ("Debtor"), hereby grants
and transfers to XXXXX FARGO BANK, NATIONAL ASSOCIATION ("Bank") a security
interest in (a) Debtor's account no. 00000000 (whether held in Debtor's name or
as a Bank collateral account for the benefit of Debtor), any sub-account
thereunder or consolidated therewith, and all replacements or substitutions
therefor, including any account resulting from a renumbering or other
administrative re-identification thereof (collectively, the "Securities
Account") maintained with XXXXX FARGO BANK, NATIONAL ASSOCIATION, acting through
its Investment Group ("Intermediary"), (b) all financial assets credited to the
Securities Account, (c) all security entitlements with respect to the financial
assets credited to the Securities Account, and (d) any and all other investment
property or assets maintained or recorded in the Securities Account (with all
the foregoing defined as "Collateral"), together with whatever is receivable or
received when any of the Collateral or proceeds thereof are sold, collected,
exchanged or otherwise disposed of, whether such disposition is voluntary or
involuntary, including without limitation, (i) all rights to payment, including
returned premiums, with respect to any insurance relating to any of the
foregoing, (ii) all rights to payment with respect to any claim or cause of
action affecting or relating to any of the foregoing, and (iii) all stock
rights, rights to subscribe, stock splits, liquidating dividends, cash
dividends, dividends paid in stock, new securities or other property of any kind
which Debtor is or may hereafter be entitled to receive on account of any
securities pledged hereunder, including without limitation, stock received by
Debtor due to stock splits or dividends paid in stock or sums paid upon or in
respect of any securities pledged hereunder upon the liquidation or dissolution
of the issuer thereof (hereinafter called "Proceeds"). Except as otherwise
expressly permitted herein, in the event Debtor receives any such Proceeds,
Debtor will hold the same in trust on behalf of and for the benefit of Bank and
will immediately deliver all such Proceeds to Bank in the exact form received,
with the endorsement of Debtor if necessary and/or appropriate undated stock
powers duly executed in blank, to be held by Bank as part of the Collateral,
subject to all terms hereof. As used herein, the terms "security entitlement,"
"financial asset" and "investment property" shall have the respective meanings
set forth in the Washington Uniform Commerical Code.
2. OBLIGATIONS SECURED. The obligations secured hereby are the payment and
performance of: (a) all present and future Indebtedness of-Debtor to Bank; (b)
all obligations of Debtor and rights of Bank under this Agreement; and (c) all
present and future obligations of Debtor to Bank of other kinds. The word
"Indebtedness" is used herein in its most comprehensive sense and includes any
and all advances, debts, obligations and liabilities of Debtor, or any of them,
heretofore, now or hereafter made, incurred or created, whether voluntary or
involuntary and however arising, whether due or not due, absolute or contingent,
liquidated or unliquidated, determined or undetermined, and whether Debtor may
be liable individually or jointly, or whether recovery upon such Indebtedness
may be or hereafter becomes unenforceable.
3. TERMINATION. This Agreement will terminate upon the performance of all
obligations of Debtor to Bank, including without limitation, the payment of all
Indebtedness of Debtor to Bank, and the termination of all commitments of Bank
to extend credit to Debtor, existing at the time Bank receives written notice
from Debtor of the termination of this Agreement.
4. OBLIGATIONS OF BANK. Bank has no obligation to make any loans
hereunder. Any money received by Bank in respect of the Collateral may be
deposited, at Bank's option, into a non-interest bearing account over which
Debtor shall have no control, and the same shall, for all purposes, be deemed
Collateral hereunder. Bank shall have no duty to take any steps necessary to
preserve the rights of Debtor against prior parties, or to initiate any action
to protect against the possibility of a decline in the market value of the
Collateral or Proceeds. Bank shall not be obligated to take any action with
respect to the Collateral or Proceeds requested by Debtor unless such request is
made in writing and Bank determines, in its sole discretion, that the requested
action would not unreasonably jeopardize the value of the Collateral and
Proceeds as security for the Indebtedness.
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5. REPRESENTATIONS AND WARRANTIES. Debtor represents and warrants to Bank
that: (a) Debtor's legal name is exactly as set forth on the first page of this
Agreement, and all of Debtor's organizational documents or agreements delivered
to Bank are complete and accurate in every respect; (b) Debtor is the owner of
the Collateral and Proceeds; (c) Debtor has the exclusive right to grant a
security interest in the Collateral and Proceeds; (d) all Collateral and
Proceeds are genuine, free from liens, adverse claims, setoffs, default,
prepayment, defenses and conditions precedent of any kind or character, except
the lien created hereby or as otherwise agreed to by Bank, or heretofore
disclosed by Debtor to Bank, in writing; (e) all statements contained herein
and, where applicable, in the Collateral, are true and complete in all material
respects; (f) no financing statement or control agreement covering any of the
Collateral or Proceeds, and naming any secured party other than Bank, exists or
is on file in any public office or remains in effect; (g) no person or entity,
other than Debtor, Bank and Intermediary, has any interest in or control over
the Collateral; and (h) specifically with respect to Collateral and Proceeds
consisting of investment securities, instruments, chattel paper, documents,
contracts, insurance policies or any like property, (i) all persons appearing to
be obligated thereon have authority and capacity to contract and are bound as
they appear to be, and (ii) the same comply with applicable laws concerning
form, content and manner of preparation and execution.
6. COVENANTS OF DEBTOR.
6.1 Debtor Agrees in general: (a) to pay Indebtedness secured hereby when
due; (b) to indemnify Bank against all losses, claims, demands, liabilities and
expenses of every kind caused by property subject hereto; (c) to pay all costs
and expenses, including reasonable attorneys' fees, incurred by Bank in the
perfection and preservation of the Collateral or Bank's interest therein and/or
the realization, enforcement and exercise of Bank's rights, powers and remedies
hereunder; (d) to permit Bank to exercise its powers; (e) to execute and deliver
such documents as Bank deems necessary to create, perfect and continue the
security interests contemplated hereby; (f) not to change its name, and as
applicable, its chief executive office, its principal residence or the
jurisdiction in which it is organized and/or registered without giving Bank
prior written notice thereof; (g) not to change the places where Debtor keeps
any Collateral or Debtor's records concerning the Collateral and Proceeds
without giving Bank prior written notice of the address to which Debtor is
moving same; and (h) to cooperate with Bank in perfecting all security interests
granted herein and in obtaining such agreements from third parties as Bank deems
necessary, proper or convenient in connection with the preservation, perfection
or enforcement of any of its rights hereunder.
6.2 Debtor agrees with regard to the Collateral and Proceeds, unless Bank
agrees otherwise in writing: (a) that Bank is authorized to file financing
statements in the name of Debtor to perfect Bank's security interest in
Collateral and Proceeds; (b) not to permit any security interest in or lien on
the Collateral or Proceeds, except in favor of Bank and except liens in favor of
Intermediary to the extent expressly permitted by Bank in writing; (c) not to
hypothecate or permit the transfer by operation of law of any of the Collateral
or Proceeds or any interest therein; (d) to keep, in accordance with generally
accepted accounting principles, complete and accurate records regarding all
Collateral and Proceeds, and to permit Bank to inspect the same and make copies
thereof at any reasonable time; (e) if requested by Bank, to receive and use
reasonable diligence to collect Proceeds, in trust and as the property of Bank,
and to immediately endorse as appropriate and deliver such Proceeds to Bank
daily in the exact form in which they are received together with a collection
report in form satisfactory to Bank; (f) in the event Bank elects to receive
payments of Proceeds hereunder, to pay all expenses incurred by Bank in
connection therewith, including expenses of accounting, correspondence,
collection efforts, filing, recording, record keeping and expenses incidental
thereto; (g) to provide any service and do any other acts which may be necessary
to keep all Collateral and Proceeds free and clear of all defenses, rights of
offset and counterclaims; and (h) if the Collateral or Proceeds consists of
securities and so long as no Event of Default exists, to vote said securities
and to give consents, waivers and ratifications with respect thereto, provided
that no vote shall be cast or consent, waiver or ratification given or action
taken which would impair Bank's interests in the Collateral and Proceeds or be
inconsistent with or violate any provisions of this Agreement. Debtor further
agrees that any party now or at any time hereafter authorized by Debtor to
advise or otherwise act with respect to the Securities Account shall be subject
to all terms and conditions contained herein and in any control, custodial or
other similar agreement at any time in effect among Bank, Debtor and
Intermediary relating to the Collateral.
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7. POWERS OF BANK. Debtor appoints Bank its true attorney-in-fact to
perform any of the following powers, which are coupled with an interest, are
irrevocable until termination of this Agreement and may be exercised from time
to time by Bank's officers and employees, or any of them, whether or not Debtor
is in default: (a) to perform any obligation of Debtor hereunder in Debtor's
name or otherwise; (b) to notify any person obligated on any security,
instrument or other document subject to this Agreement of Bank's rights
hereunder; (c) to collect by legal proceedings or otherwise ail dividends,
interest, principal or other sums now or hereafter payable upon or on account of
the Collateral or Proceeds; (d) to enter into any extension, modification,
reorganization, deposit, merger or consolidation agreement, or any other
agreement relating to or affecting the Collateral or Proceeds, and in connection
therewith to deposit or surrender control of the Collateral and Proceeds, to
accept other property in exchange for the Collateral and Proceeds, and to do and
perform such acts and things as Bank may deem proper, with any money or property
received in exchange for the Collateral or Proceeds, at Bank's option, to be
applied to the Indebtedness or held by Bank under this Agreement; (e) to make
any compromise or settlement Bank deems desirable or proper in respect of the
Collateral and Proceeds; (f) to insure, process and preserve the Collateral and
Proceeds; (g) to exercise all rights, powers and remedies which Debtor would
have, but for this Agreement, with respect to all Collateral and Proceeds
subject hereto; and (h) to do all acts and things and execute all documents in
the name of Debtor or otherwise, deemed by Bank as necessary, proper and
convenient in connection with the preservation, perfection or enforcement of its
rights hereunder. To effect the purposes of this Agreement or otherwise upon
instructions of Debtor, or any of them, Bank may cause any Collateral and/or
Proceeds to be transferred to Bank's name or the name of Bank's nominee. If an
Event of Default has occurred and is continuing, any or all Collateral and/or
Proceeds consisting of securities may be registered, without notice, in the name
of Bank or its nominee, and thereafter Bank or its nominee may exercise, without
notice, all voting and corporate rights at any meeting of the shareholders of
the issuer thereof, any and all rights of conversion, exchange or subscription,
or any other rights, privileges or options pertaining to such Collateral and/or
Proceeds, all as if it were the absolute owner thereof. The foregoing shall
include, without limitation, the right of Bank or its nominee to exchange, at
its discretion, any and all Collateral and/or Proceeds upon the merger,
consolidation, reorganization, recapitalization or other readjustment of the
issuer thereof, or upon the exercise by the issuer thereof or Bank of any right,
privilege or option pertaining to any shares of the Collateral and/or Proceeds,
and in connection therewith, the right to deposit and deliver any and all of the
Collateral and/or Proceeds with any committee, depository, transfer agent,
registrar or other designated agency upon such terms and conditions as Bank may
determine. All of the foregoing rights, privileges or options may be exercised
without liability on the part of Bank or its nominee except to account for
property actually received by Bank. Bank shall have no duty to exercise any of
the foregoing, or any other rights, privileges or options with respect to the
Collateral or Proceeds and shall not be responsible for any failure to do so or
delay in so doing.
8. PAYMENT OF PREMIUMS, TAXES, CHARGES, LIENS AND ASSESSMENTS. Debtor
agrees to pay, prior to delinquency, all insurance premiums, taxes, charges,
liens and assessments against the Collateral and Proceeds, and upon the failure
of Debtor to do so, Bank at its option may pay any of them and shall be the sole
judge of the legality or validity thereof and the amount necessary to discharge
the same. Any such payments made by Bank shall be obligations of Debtor to Bank,
due and payable immediately upon demand, together with interest at a rate
determined in accordance with the provisions of this Agreement, and shall be
secured by the Collateral and Proceeds, subject to all terms and conditions of
this Agreement.
9. EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an "Event of Default" under this Agreement: (a) any default in the
payment or performance of any obligation, or any defined event of default, under
(i) any contract or instrument evidencing any Indebtedness, (ii) any other
agreement between Debtor and Bank, including without limitation any loan
agreement, relating to or executed in connection with any Indebtedness, or (iii)
any control, custodial or other similar agreement in effect among Bank, Debtor
and Intermediary relating to the Collateral; (b) any representation or warranty
made by Debtor herein shall prove to be incorrect, false or misleading in any
material respect when made; (c) Debtor shall fail to observe or perform any
obligation or agreement contained herein; (d) any impairment of the rights of
Bank in any Collateral or Proceeds or any attachment or like levy on any
property of Debtor; and (e) Bank, in good-faith, believes any or all of the
Collateral and/or Proceeds to be in danger of misuse, dissipation, commingling,
loss, theft, damage or destruction, or otherwise in jeopardy or unsatisfactory
in character or value.
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10. REMEDIES. Upon the occurrence of any Event of Default, Bank shall have
the right to declare immediately due and payable all or any Indebtedness secured
hereby and to terminate any commitments to make loans or otherwise extend credit
to Debtor. Bank shall have all other rights, powers, privileges and remedies
granted to a secured party upon default under the Washington Uniform Commerical
Code or otherwise provided by law, including without limitation, the right (a)
to contact all persons obligated to Debtor on any Collateral or Proceeds and to
instruct such persons to deliver all Collateral and/or Proceeds directly to
Bank, and (b) to sell, lease, license or otherwise dispose of any or all
Collateral. All rights, powers, privileges and remedies of Bank shall be
cumulative. No delay, failure or discontinuance of Bank in exercising any right,
power, privilege or remedy hereunder shall affect or operate as a waiver of such
right, power, privilege or remedy; nor shall any single or partial exercise of
any such right, power, privilege or remedy preclude, waive or otherwise affect
any other or further exercise thereof or the exercise of any other right, power,
privilege or remedy. Any waiver, permit, consent or approval of any kind by Bank
of any default hereunder, or any such waiver of any provisions or conditions
hereof, must be in writing and shall be effective only to the extent set forth
in writing. It is agreed that public or private sales or other dispositions, for
cash or on credit, to a wholesaler or retailer or investor, or user of property
of the types subject to this Agreement, or public auctions, are all commercially
reasonable since differences in the prices generally realized in the different
kinds of dispositions are ordinarily offset by the differences in the costs and
credit risks of such dispositions.
While an Event of Default exists: (a) Debtor will not dispose of any Collateral
or Proceeds except on terms approved by Bank; (b) Bank may appropriate the
Collateral and apply all Proceeds toward repayment of the Indebtedness in such
order of application as Bank may from time to time elect; (c) Bank may take any
action with respect to the Collateral contemplated by any control, custodial or
other similar agreement then in effect among Bank, Debtor and Intermediary; and
(d) at Bank's request, Debtor will assemble and deliver all books and records
pertaining to the Collateral or Proceeds to Bank at a reasonably convenient
place designated by Bank. For any Collateral or Proceeds consisting of
securities, Bank shall have no obligation to delay a disposition of any portion
thereof for the period of time necessary to permit the issuer thereof to
register such securities for public sale under any applicable state or Federal
law, even if the issuer thereof would agree to do so. Debtor further agrees that
Bank shall have no obligation to process or prepare any Collateral for sale or
other disposition.
11. DISPOSITION OF COLLATERAL AND PROCEEDS; TRANSFER OF INDEBTEDNESS. In
disposing of Collateral hereunder, Bank may disclaim all warranties of title,
possession, quiet enjoyment and the like. Any proceeds of any disposition of any
Collateral or Proceeds, or any part thereof, may be applied by Bank to the
payment of expenses incurred by Bank in connection with the foregoing, including
reasonable attorneys' fees, and the balance of such proceeds may be applied by
Bank toward the payment of the Indebtedness in such order of application as Bank
may from time to time elect. Upon the transfer of all or any part of the
Indebtedness, Bank may transfer all or any part of the Collateral or Proceeds
and shall be fully discharged thereafter from all liability and responsibility
with respect to any of the foregoing so transferred, and the transferee shall be
vested with all rights and powers of Bank hereunder with respect to any of the
foregoing so transferred; but with respect to any Collateral or Proceeds not so
transferred Bank shall retain all rights, powers, privileges and remedies herein
given.
12. STATUTE OF LIMITATIONS. Until all Indebtedness shall have been paid in
full and all commitments by Bank to extend credit to Debtor have been
terminated, the power of sale or other disposition and all other rights, powers,
privileges and remedies granted to Bank hereunder shall continue to exist and
may be exercised by Bank at any time and from time to time irrespective of the
fact that the Indebtedness or any part thereof may have become barred by any
statute of limitations, or that the personal liability of Debtor may have
ceased, unless such liability shall have ceased due to the payment in full of
all Indebtedness secured hereunder.
13. MISCELLANEOUS. When there is more than one Debtor named herein: (a) the
word "Debtor" shall mean all or any one or more of them as the context requires;
(b) the obligations of each Debtor hereunder are joint and several; and (c)
until all Indebtedness shall have been paid in full, no Debtor shall have any
right of subrogation or contribution, and each Debtor hereby waives any benefit
of or right to participate in any of the Collateral or Proceeds or any other
security now or hereafter held by Bank. Debtor hereby waives any right to
PAGE 4
require Bank to (i) proceed against Debtor or any other person, (ii) proceed
against or exhaust any security from Debtor or any other person, (iii) perform
any obligation of Debtor with respect to any Collateral or Proceeds, and (d)
make any presentment or demand, or give any notice of nonpayment or
nonperformance, protest, notice of protest or notice of dishonor hereunder or in
connection with any Collateral or Proceeds. Debtor further waives any right to
direct the application of payments or security for any Indebtedness of Debtor or
indebtedness of customers of Debtor.
14. NOTICES. All notices, requests and demands required under this
Agreement must be in writing, addressed to Bank at the address specified in any
other loan documents entered into between Debtor and Bank and to Debtor at the
address of its chief executive office (or principal residence, if applicable)
specified below or to such other address as any party may designate by written
notice to each other party, and shall be deemed to have been given or made as
follows: (a) if personally delivered, upon delivery; (b) if sent by mail, upon
the earlier of the date of receipt or 3 days after deposit in the U. S.
mail; first class and postage prepaid; and (c) if sent by telecopy, upon
receipt.
15. COSTS, EXPENSES AND ATTORNEYS' FEES. Debtor shall pay to Bank
immediately upon demand the full amount of all payments, advances, charges,
costs and expenses, including reasonable attorneys' fees (to include outside
counsel fees and all allocated costs of Bank's in-house counsel), expended or
incurred by Bank in exercising any right, power, privilege or remedy conferred
by this Agreement or in the enforcement thereof, whether incurred at the trial
or appellate level, in an arbitration proceeding or otherwise, and including any
of the foregoing incurred in connection with any bankruptcy proceeding
(including without limitation, any adversary proceeding, contested matter or
motion brought by Bank or any other person) relating to Debtor or in any way
affecting any of the Collateral or Bank's ability to exercise any of its rights
or remedies with respect thereto. All of the foregoing shall be paid by Debtor
with interest from the date of demand until paid in full at a rate per annum
equal to the greater of ten percent (10%) or Bank's Prime Rate in effect from
time to time.
16. SUCCESSORS; ASSIGNS; AMENDMENT. This Agreement shall be binding upon
and inure to the benefit of the heirs, executors, administrators, legal
representatives, successors and assigns of the parties, and may be amended or
modified only in writing signed by Bank and Debtor.
17. OBLIGATIONS OF MARRIED PERSONS. Any married person who signs this
Agreement as Debtor hereby expressly agrees that recourse may be had against his
or her separate property for all his or her Indebtedness to Bank secured by the
Collateral and Proceeds under this Agreement.
18. SEVERABILITY OF PROVISIONS. If any provision of this Agreement shall be
held to be prohibited by or invalid under applicable law, such provision shall
be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or any remaining provisions of this
Agreement.
19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
20. ADDENDUM. Additional terms and conditions relating to the Securities
Account are set forth in an Addendum attached hereto and incorporated herein by
this reference.
Debtor warrants that Debtor is an organization registered under the laws of the
State of Delaware.
Debtor warrants that its chief executive office (or principal residence, if
applicable) is located at the following address: 0000 XXXXX XXXXX XXXXXXX,
XXXXXXX, XX 00000
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IN WITNESS WHEREOF, this Agreement has been duly executed as of DECEMBER 19,
2003.
Nastech Pharmaceutical Company Inc.
By:/s/ Xxxxxx Xxxx
------------------------
Xxxxxx Xxxx, CEO
By:/s/ Xxxx Xxxxxx
------------------------
Xxxx Xxxxxx, CFO
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