Exhibit 10.11
Master Security Agreement No. 4081067
MASTER SECURITY AGREEMENT
NO. 4081067
Dated as of AUGUST 19, 2004 ("AGREEMENT")
THIS AGREEMENT is between Oxford Finance Corporation (together with its
successors and assigns, if any, "SECURED PARTY") and Altus Pharmaceuticals Inc.
("DEBTOR"). Secured Party has an office at 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000. Debtor is a corporation organized and existing under the laws of the
state of Delaware. Debtor's mailing address and chief place of business is 000
Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
1. CREATION OF SECURITY INTEREST.
Debtor grants to Secured Party, its successors and assigns, a security
interest in and against all property listed on any collateral schedule now or in
the future annexed to or made a part of this Agreement ("COLLATERAL SCHEDULE"),
and in and against all additions, attachments, accessories and accessions to
such property, all substitutions, replacements or exchanges therefore, and all
insurance and/or other proceeds thereof (all such property is individually and
collectively called the "COLLATERAL"). This security interest is given to secure
the payment and performance of 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"). Unless otherwise
provided by applicable law, notwithstanding anything to the contrary contained
in this Agreement, to the extent that Secured Party asserts a purchase money
security interest in any items of Collateral ("PMSI COLLATERAL"): (i) the PMSI
Collateral shall secure only that portion of the Indebtedness which has been
advanced by Secured Party to enable Debtor to purchase, or acquire rights in or
the use of such PMSI Collateral (the "PMSI INDEBTEDNESS"), and (ii) no other
Collateral shall secure the PMSI Indebtedness.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR.
Debtor represents, warrants and covenants as of the date of this Agreement
and as of the date of each Collateral Schedule that:
(a) Debtor's exact legal name is as set forth in the preamble of this
Agreement and Debtor is, and will remain, duly organized, existing and
in good standing under the laws of the State set forth in the preamble
of this Agreement, has its chief executive offices at the location
specified in the preamble, and is, and will remain, duly qualified and
licensed in every jurisdiction wherever necessary to carry on its
business and operations, except where the failure to be so qualified
or licensed would not have a material adverse effect on the Debtor's
business or operations, or its ability to perform its obligations
under the Debt Documents;
(b) Debtor has adequate power and capacity to enter into, and to perform
its obligations under this Agreement, each Note and any other
documents
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evidencing, or given in connection with, any of the Indebtedness (all
of the foregoing are called the "DEBT DOCUMENTS");
(c) This Agreement and the other Debt Documents have been duly authorized,
executed and delivered by Debtor and constitute legal, valid and
binding agreements enforceable in accordance with their terms, except
to the extent that the enforcement of remedies may be limited under
applicable bankruptcy and insolvency laws;
(d) No approval, consent or withholding of objections is required from any
governmental authority or instrumentality with respect to the entry
into, or performance by Debtor of any of the Debt Documents, except
any already obtained;
(e) The entry into, and performance by, Debtor of the Debt Documents will
not (i) violate any of the organizational documents of Debtor or any
judgment, order, law or regulation applicable to Debtor, or (ii)
result in any breach of or constitute a default under any contract to
which Debtor is a party, or result in the creation of any lien, claim
or encumbrance on any of Debtor's property (except for liens in favor
of Secured Party) pursuant to any indenture, mortgage, deed of trust,
bank loan, credit agreement, or other agreement or instrument to which
Debtor is a party;
(f) There are no suits or proceedings pending in court or before any
commission, board or other administrative agency against or affecting
Debtor which could, in the aggregate, have a material adverse effect
on Debtor, its business or operations, or its ability to perform its
obligations under the Debt Documents, nor to Debtor's knowledge are
any such suits or proceedings are threatened;
(g) All financial statements delivered to Secured Party in connection with
the Indebtedness have been prepared in accordance with generally
accepted accounting principles, and since the date of the most recent
financial statement, there has been no material adverse change in
Debtors financial condition;
(h) The Collateral is not, and will not be, used by Debtor for personal,
family or household purposes;
(i) The Collateral is, and will remain, in good condition and repair and
Debtor will not be negligent in its care and use;
(j) All of the tangible Collateral is located at the locations set forth
on each Collateral Schedule. Debtor shall give the Secured Party 30
days prior written notice of any relocation of any Collateral;
(k) Debtor is, and will remain, the sole and lawful owner, and in
possession of, the Collateral, and has the sole right and lawful
authority to grant the security interest described in this Agreement;
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(l) The Collateral is, and will remain, free and clear of all liens,
claims and encumbrances of any kind whatsoever, except for (i) liens
in favor of Secured Party, (ii) liens for taxes not yet due or for
taxes being contested in good faith and which do not involve, in the
reasonable judgment of Secured Party, any risk of the sale, forfeiture
or loss of any of the Collateral, and (iii) inchoate material men's,
mechanic's, repairmen's and similar liens arising by operation of law
in the normal course of business for amounts which are not delinquent
(all of such liens are called "PERMITTED LIENS")
(m) All federal, state and local tax returns required to be filed by
Debtor have been filed with the appropriate governmental agencies and
all taxes due and payable by Debtor have been timely paid except as
contested in good faith and by appropriate proceedings and/or for
which adequate reserves have been established. Debtor will pay when
due all taxes, assessments and other liabilities excerpt as contested
in good faith and by appropriate proceedings and for which adequate
reserves have been established;
(n) No event or condition exists under any material agreement, instrument
or document to which Debtor is a party or maybe subject, or by which
Debtor or any of its properties are bound, which constitutes a default
or an event of default thereunder, or will, with the giving of notice,
passage of time, or both, would constitute a default or event of
default thereunder, in each case where such default or event of
default would have a material adverse effect on the Debtor's business
or operations, or its ability to perform its obligations under the
Debt Documents;
(o) All reports, certificates, schedules, notices and financial
information submitted by Debtor to the Secured Party pursuant to this
Agreement shall be certified as true and correct by the president or
chief financial officer of Debtor;
(p) Debtor shall give the Secured Party prompt written notice of any
event, occurrence or other matter which has resulted or may result in
a material adverse change in its financial condition, business
operations, prospects, product development, technology, or business or
contractual relations with third parties of Debtor which would impair
the ability of Debtor to perform its obligations hereunder or under
any of the Debt Documents or of Secured Party to enforce the
Indebtedness or realize upon the Collateral.
3. COLLATERAL.
(a) Until the declaration of any default, Debtor shall remain in
possession of the Collateral; except that Secured Party shall have the
right to possess (i) any chattel paper or instrument that constitutes
a part of the Collateral, and (ii) any other Collateral in which
Secured Party's security interest may be perfected only by possession.
Secured Party may inspect any of the Collateral during normal business
hours after giving Debtor reasonable prior notice.
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(b) Debtor shall (i) use the Collateral only in its trade or business,
(ii) maintain all of the Collateral in good operating order and
repair, normal wear and tear excepted, (iii) use and maintain the
Collateral only in compliance with manufacturers recommendations and
all applicable laws, and (iv) keep all of the Collateral free and
clear of all liens, claims and encumbrances (except for Permitted
Liens).
(c) Secured Party does not authorize and Debtor agrees it shall not (i)
part with possession of any of the Collateral (except to Secured Party
or for maintenance and repair), (ii) remove any of the Collateral from
the continental United States, with the exception of those items of
lab equipment which will be located in Japan as outlined in Exhibit A
or (iii) sell, rent, lease, mortgage, license grant a security
interest in or otherwise transfer or encumber (except for Permitted
Liens) any of the Collateral.
(d) Debtor shall pay promptly when due all taxes, license fees,
assessments and public and private charges levied or assessed on any
of the Collateral, on its use, or on this Agreement or any of the
other Debt Documents. At its option, Secured Party may discharge
taxes, liens, security interests or other encumbrances at any time
levied or placed on the Collateral and may pay for the maintenance,
insurance and preservation of the Collateral and effect compliance
with the terms of this Agreement or any of the other Debt Documents.
Debtor agrees to reimburse Secured Party, on demand, all costs and
expenses incurred by Secured Party in connection with such payment or
performance and agrees that such reimbursement obligation shall
constitute Indebtedness.
(e) Debtor shall, at all times, keep accurate and complete records of the
Collateral, and Secured Party shall have the right to inspect and make
copies of all of Debtor's books and records relating to the Collateral
during normal business hours, after giving Debtor reasonable prior
notice.
(f) Debtor agrees and acknowledges that any third person who may at any
time possess all or any portion of the Collateral shall be deemed to
hold, and shall hold, the Collateral as the agent of, and as pledge
holder for, Secured Party. Secured Party may at any time give notice
to any third person described in the preceding sentence that such
third person is holding the Collateral as the agent of, and as pledge
holder for, the Secured Party.
4. INSURANCE.
(a) Debtor shall at all times bear the entire risk of any loss, theft,
damage to, or destruction of, any of the Collateral from any cause
whatsoever.
(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
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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
co-insurance, 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. If Debtor is then in default, proceeds of
insurance shall be applied, at the option of Secured Party, to repair
or replace the Collateral or to reduce any of the Indebtedness.
5. REPORTS.
(a) Debtor shall promptly notify Secured Party of (i) any change in the
name of Debtor, (ii) any change in the state of its incorporation or
registration, (iii) any relocation of its chief executive offices,
(iv) any of the Collateral being, lost, stolen, missing, destroyed,
materially damaged or worn out, or (v) any lien, claim or encumbrance
other than Permitted Liens attaching to or being made against any of
the Collateral.
(b) Debtor will deliver to Secured Party within one hundred twenty (120)
days of the close of each fiscal year of Debtor, Debtor's complete
financial statements including a balance sheet, income statement,
statement of shareholders' equity and statement of cash flows, each
prepared in accordance with generally accepted accounting principles
consistently applied, certified by a recognized firm of certified
public accountants satisfactory to Secured Party. Debtor will deliver
to Secured Party copies of Debtor's quarterly financial statements
including a balance sheet, income statement and statement of cash
flows, each prepared by Debtor in accordance with generally accepted
accounting principles consistently applied by Debtor and certified by
Debtor's chief financial officer, within ninety (90) days after the
close of each of Debtor's fiscal quarter. Debtor will deliver to
Secured Party copies of all Forms 10-K and 10-Q, if any, within 30
days after the dates on which they are filed with the Securities and
Exchange Commission. Debtor will deliver to Secured Party promptly
upon request of Secured Party, in form satisfactory to Secured Party,
such other and additional information as Secured Party may reasonably
request from time to time.
6. FURTHER ASSURANCES.
(a) Debtor shall, upon request of Secured Party, furnish to Secured Party
such further information, execute and deliver to Secured Party such
documents and instruments (including, without limitation, Uniform
Commercial Code financing statements) and shall do such other acts and
things as Secured Party may at any
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time reasonably request relating to the perfection or protection of
the security interest created by this Agreement or for the purpose of
carrying out the intent of this Agreement. Without limiting the
foregoing, Debtor shall cooperate and do all acts deemed necessary or
advisable by Secured Party to continue in Secured Party a perfected
first security interest in the Collateral, and shall obtain and
furnish to Secured Party any subordinations, releases, landlord
waivers, lessor waivers, mortgagee waivers, or control agreements, and
similar documents as may be from time to time requested by, and in
form and substance satisfactory to, Secured Party.
(b) Debtor shall perform any and all acts requested by the Secured Party
to establish, maintain and continue the Secured Party's security
interest and liens in the Collateral, including but not limited to,
executing or authenticating financing statements and such other
instruments and documents when and as reasonably requested by the
Secured Party. Debtor hereby authorizes Secured Party through any of
Secured Party's employees, agents or attorneys to file any and all
financing statements, including, without limitation, any original
filings, continuations, transfers or amendments thereof required to
perfect Secured Party's security interest and liens in the Collateral
under the UCC without authentication or execution by Debtor. Debtor
hereby irrevocably authorizes the Secured Party at any time and from
time to time to file in any filing office in any Uniform Commercial
Code jurisdiction any initial financing statement(s) and amendments
thereto that (a) indicate the Collateral (i) is subject to the Secured
Party's security interest, regardless of whether any particular asset
comprised in the Collateral falls within the scope of Article 9 of the
Uniform Commercial Code of the State or such jurisdiction, or (ii) as
being of an equal or lesser scope or with greater detail, and (b)
provide any other information required by part 5 of Article 9 of the
Uniform Commercial Code of the State or such other jurisdiction for
the sufficiency or filing office acceptance of any financing statement
or amendment, including (i) whether the Debtor is an organization, the
type of organization and any organization identification number issued
to the Debtor, and (ii) in the case of a financing statement filed as
a fixture filing, a sufficient description of real property to which
the Collateral relates. The Debtor agrees to furnish any such
information to the Secured Party promptly upon the Secured Party's
request.
(c) Except to the extent arising out of the Secured Party's negligence or
willful misconduct, Debtor shall indemnify and defend the Secured
Party, its successors and assigns, and their respective directors,
officers and employees, from and against all claims, actions and suits
(including, without limitation, related attorneys' fees) of any kind
whatsoever arising, directly or indirectly, in connection with any of
the Collateral; provided, however, so long as, the Secured Party acts
in a commercially reasonable manner under the circumstances, the
Secured Party's conduct will rebuttably be presumed not to be
negligent.
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7. DEFAULT AND REMEDIES.
(a) Debtor shall be in default under this Agreement and each of the other
Debt Documents if:
(i) Debtor breaches its obligation to pay within 5 days of 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 non-payment obligations under
any of the Debt Documents and fails to cure that breach within
thirty (30) days after written notice from Secured Party;
(v) Any material warranty, representation or statement made by Debtor
in any of the Debt 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) 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;
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(xi) Debtor or any Guarantor files a petition under any bankruptcy,
insolvency or similar law, or any such petition is filed against
Debtor or any Guarantor and is not dismissed within forty-five
(45) days;
(xii) Debtor's improper filing of an amendment or termination
statement relating to a filed financing statement describing the
Collateral;
(xiii) Without the prior written consent of Secured Party, which
consent shall not be unreasonably withheld, conditioned or
delayed, Debtor shall merge with or consolidate into any other
entity or sell all or substantially all of its assets or in any
manner terminate its existence except where (i) Debtor is the
surviving entity and no default has occurred and is continuing or
would exist after giving effect to the transaction or (ii) Debtor
is not the surviving entity, no default has occurred and is
continuing or would exist after giving effect to the transaction,
and the acquiring entity either assumes the Indebtedness or
prepays the Indebtedness in full without penalty or premium
within 10 days after the closing of the transaction;
(xiv) Without the prior written consent of Secured Party, which
consent shall not be unreasonably withheld, conditioned or
delayed, if Debtor is a privately held corporation, less than 25%
of Debtor's voting capital stock, or effective control of
Debtor's voting capital stock, issued and outstanding from time
to time, is retained by the holders of such stock on the date the
Agreement is executed (other than due to the sale of Debtor's
equity securities in a public offering nor to venture capital
investors);
(xv) Debtor is a publicly held corporation, there shall be a change
in the ownership of Debtor's stock such that Debtor is no longer
subject to the reporting requirements of the Securities Exchange
Act of 1934 or no longer has a class of equity securities
registered under Section 12 of the Securities Act of 1933;
(xvi) Debtor defaults under any other material financing arrangement
between Debtor and a third party; and
(xvii) Secured Party shall have reasonably determined that there has
been a material adverse change in the financial condition or
business operations of Debtor from the date hereof, or a change
or event shall have occurred which would impair the ability of
Debtor to perform its obligations hereunder.
(b) If Debtor is in default, the Secured Party, at its option, may declare
any or all of the Indebtedness to be immediately due and payable,
without demand or notice to Debtor or any Guarantor. The accelerated
obligations and liabilities shall bear interest (both before and after
any judgment) until paid in full at the lower of eighteen percent
(18%) per annum or the maximum rate not prohibited by applicable law.
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(c) If Debtor is in default, Secured Party shall have all of the rights
and remedies of a Secured Party under the Uniform Commercial Code, and
under any other applicable law. Without limiting the foregoing, if
Debtor is in default, Secured Party shall have the right to (i) notify
any account debtor of Debtor or any obligor on any instrument which
constitutes part of the Collateral to make payment to the Secured
Party, (ii) with or without legal process, enter any premises where
the Collateral may be and take possession of and remove the Collateral
from the premises or store, it on the premises, (iii) sell the
Collateral at public or private sale, in whole or in part, and have
the tight to bid and purchase at said sale, or (iv) lease or otherwise
dispose of all or part of the Collateral, applying proceeds from such
disposition to the obligations then in default. If Debtor is in
default and if requested by Secured Party, Debtor shall promptly
assemble the Collateral and make it available to Secured Party at a
place to be designated by Secured Party, which is reasonably
convenient to both parties. If Debtor is in default Secured Party may
also render any or all of the Collateral unusable at the Debtor's
premises and may dispose of such Collateral on such premises without
liability for rent or costs. Any notice that Secured Party is required
to give to Debtor under the Uniform Commercial Code of the time and
place of any public sale or the time after which any private sale or
other intended disposition of the Collateral is to be made shall be
deemed to constitute reasonable notice if such notice is given to the
last known address of Debt of at least ten (10) days prior to such
action. Upon the occurrence and during the continuation of an Event of
Default, Debtor hereby appoints Secured Party as Debtor's
attorney-in-fact, with full authority in Debtor's place and stead and
in Debtor's name or otherwise, from time to time in Secured Party's
sole and arbitrary discretion, to take any action and to execute any
instrument which Secured Party may deem necessary or advisable to
accomplish, the purpose of this Agreement.
(d) Proceeds from any sale or lease or other disposition shall be applied:
first, to all costs of repossession, storage, and disposition
including without limitation attorneys', appraisers', and auctioneers'
fees; second, to discharge the obligations then in default; third, to
discharge any other Indebtedness of Debtor to Secured Party, whether
as obligor, endorser, guarantor, surety or indemnitor; fourth, to
expenses incurred in paying or settling liens and claims against the
Collateral; and lastly, to Debtor, if there exists any surplus. Debtor
shall remain fully liable for any deficiency.
(e) Debtor agrees to pay all reasonable attorneys' fees and other costs
incurred by Secured Party in connection with the enforcement,
assertion, defense or preservation of Secured Party's rights and
remedies under this Agreement, or if prohibited by law, such lesser
sum as may be permitted. Debtor further agrees that such fees and
costs shall constitute Indebtedness.
(f) Secured Party's rights and remedies under this Agreement or otherwise
arising are cumulative and may be exercised singularly or
concurrently. Neither the failure nor any delay on the part of the
Secured Party to exercise any right, power or privilege under this
Agreement shall operate as a waiver, nor shall any single or
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partial exercise of any right, power or privilege preclude any other
or further exercise of that or any other right, power or privilege.
SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS
UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER
SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED
BY SECURED PARTY. A waiver on any one occasion shall not be construed
as a bar to or waiver of any right or remedy on any future occasion.
(g) DEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE
INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED
PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY
RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING
ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER
IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION.
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
8. MISCELLANEOUS.
(a) This Agreement, any Note and/or any of the other Debt Documents may be
assigned, in whole or in part, by Secured Party without notice to
Debtor, and Debtor agrees not to assert against any such assignee, or
assignee's assigns, any defense (other than the defense of payment),
set-off, recoupment claim or counterclaim which Debtor has or may at
any time have against Secured Party for any reason whatsoever. Debtor
agrees that if Debtor receives written notice of an assignment from
Secured Party, Debtor will pay all amounts payable under any assigned
Debt Documents to such assignee or as instructed by Secured Party.
Debtor also agrees to confirm in writing receipt of the notice of
assignment as may be reasonably requested by Secured Party or
assignee.
(b) All notices to be given in connection with this Agreement shall be in
writing, shall be addressed to the parties at their respective
addresses set forth in this Agreement (unless and until a different
address may be specified in a written notice to the other party), and
shall be deemed given (i) on the date of receipt if delivered in hand
or by facsimile transmission, (ii) on the next business day after
being sent by express mail, and (iii) on the fourth business day
after-being sent by
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regular, registered or certified mail. As used herein, the term
"business day" shall mean and include any day other than Saturdays,
Sundays, or other days on which commercial banks in New York, New York
are required or authorized to be closed.
(c) Secured Party may correct patent errors and fill in all blanks in this
Agreement or in any Collateral Schedule consistent with the agreement
of the parties.
(d) Time is of the essence of this Agreement. This Agreement shall be
binding, jointly and severally, upon all parties described as the
"Debtor" and their respective heirs, executors, representatives,
successors and assigns, and shall inure to the benefit of Secured
Party, its successors and assigns.
(e) This Agreement and its Collateral Schedules constitute the entire
agreement between the parties with respect to the subject matter of
this Agreement and supersede all prior understandings (whether
written, verbal or implied) with respect to such subject matter. THIS
AGREEMENT AND ITS COLLATERAL SCHEDULES SHALL NOT BE CHANGED OR
TERMINATED ORALLY OR BY COURSE OF CONDUCT, BUT ONLY BY A WRITING
SIGNED BY BOTH PARTIES. Section headings contained in this Agreement
have been included for convenience only, and shall not affect the
construction or interpretation of this Agreement.
(f) This Agreement shall continue in full force and effect until all of
the Indebtedness has been indefeasibly paid in full to Secured Party
or its assignee. The surrender, upon payment or otherwise, of any Note
or any of the other documents evidencing any of the Indebtedness shall
not affect the right of Secured Party to retain the Collateral for
such other Indebtedness as may then exist or as it may be reasonably
contemplated will exist in the future. This Agreement shall
automatically be reinstated if Secured Party is ever required to
return or restore the payment of all or any portion of the
Indebtedness (all as though, such payment had never been made).
(g) DEBTOR AGREES THAT SECURED PARTY AND/OR ITS SUCCESSORS AND ASSIGNS
SHALL HAVE THE OPTION BY WHICH STATE LAWS THIS AGREEMENT SHALL BE
GOVERNED AND CONSTRUED: (A) THE LAWS OF THE COMMONWEALTH OF VIRGINIA;
OR (B) IF COLLATERAL HAS BEEN PLEDGED TO SECURE THE LIABILITIES, THEN
BY THE LAWS OF THE STATE OR STATES WHERE THE COLLATERAL IS LOCATED, AT
SECURED PARTY'S OPTION. THIS CHOICE OF STATE LAWS IS EXCLUSIVE TO THE
SECURED PARTY. DEBTOR SHALL NOT HAVE ANY OPTION TO CHOOSE THE LAWS BY
WHICH THIS AGREEMENT SHALL BE GOVERNED. DEBTOR ACKNOWLEDGES THAT THIS
AGREEMENT IS BEING SIGNED BY THE SECURED PARTY IN PARTIAL
CONSIDERATION OF SECURED PARTY'S RIGHT TO ENFORCE IN THE JURISDICTION
STATED ABOVE. DEBTOR CONSENTS TO JURISDICTION IN THE COMMONWEALTH OF
VIRGINIA
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OR THE STATE IN WHICH ANY COLLATERAL IS LOCATED AND VENUE IN ANY
FEDERAL OR STATE COURT IN THE COMMONWEALTH OF VIRGINIA OR THE STATE IN
WHICH COLLATERAL IS LOCATED FOR SUCH PURPOSES AND WAIVES ANY AND ALL
RIGHTS TO CONTEST SAID JURISDICTION AND VENUE AND ANY OBJECTION THAT
SAID COUNTY IS NOT CONVENIENT. DEBTOR WAIVES ANY RIGHTS TO COMMENCE
ANY ACTION AGAINST SECURED PARTY IN ANY JURISDICTION EXCEPT VIRGINIA,
OR IF SECURED PARTY CHOOSES TO LITIGATE IN A STATE WHERE COLLATERAL IS
LOCATED THEN IN SUCH COUNTY AND STATE. SECURED PARTY AND DEBTOR HEREBY
EACH EXPRESSLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY WITH RESPECT TO ANY MATTER WHATSOEVER RELATING
TO, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE LOAN, THE
DOCUMENTS AND/OR THE TRANSACTIONS WHICH ARE THE SUBJECT OF THE
DOCUMENTS.
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Master Security Agreement No. 4081067
IN WITNESS WHEREOF, Debtor and Secured Party, intending to be legally bound
hereby, have duly executed this Agreement in one or more counterparts, each of
which shall be deemed to be an original, as of the day and year first aforesaid.
SECURED PARTY: DEBTOR:
OXFORD FINANCE CORPORATION ALTUS PHARMACEUTICALS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx By: /s/ Xxxxxxxx Xxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx Name: Xxxxxxxx Xxxxxx
Title: Chief Financial Officer Title: VP Finance
Page 13 of 14
Master Security Agreement No. 4081067
Exhibit A
Japanese Equipment
Not more than $3 million of laboratory equipment located at Xxxxx Xxxxxx Xxx.,
Xxxx Xxxxx, 0000-0, Xxxxxx, Xxxxxxxxxx-xxx, Xxxx-xxx, Xxxx 000-0000 Xxxxx
Page 14 of 14
