EXHIBIT 10.35
MASTER SECURITY AGREEMENT
NO. 3081027
Dated as of JUNE 18, 2003 ("AGREEMENT")
THIS AGREEMENT is between OXFORD FINANCE CORPORATION (together with its
successors and assigns, if any, "SECURED PARTY") and GENECRAFT, INC. ("DEBTOR").
Secured Party has an office at ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
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 ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
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 therefor, 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;
(b) Debtor has adequate power and capacity to enter into, and to
perform its obligations under this Agreement, each Note and any other documents
evidencing, or given in connection with 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 material 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
material indenture, mortgage, deed of trust, material bank loan, material credit
agreement, or other material 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 does Debtor hive reason to believe that 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;
(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 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 to
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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. Debtor will pay when due all
taxes, assessments and other liabilities except 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 may be 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;
(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, occurance 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 other financing agreements to which it
is a party 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.
(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 dear 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, 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,
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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 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. 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.
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(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
copies of Debtor's monthly financial statements including a balance sheet and
income statement, each prepared by Debtor in accordance with generally accepted
accounting principles consistently applied by Debtor and certified by Debtor's
chief financial officer, within forty-five (45) days after the close of each
month. 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 Parry, 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 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
statements) and amendments thereto that (a) indicate the Collateral (i) as all
assets of the Debtor or words of similar effect, 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
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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 Parry promptly upon the Secured
Party's request.
(c) 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.
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 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 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 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;
(viii) Debtor or any Guarantor is a natural person, Debtor or any
such Guarantor dies or becomes incompetent;
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(ix) 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;
(x) 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;
(xi) Debtor's improper filing of an amendment or termination
statement relating to a filed financing statement describing the Collateral.
(xii) 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;
(xiii) Debtor is a privately held corporation, more than 50% of
Debtor's voting capital stock, or effective control of Debtor's voting capital
stock, issued and outstanding from time to time, is not retained by the holders
of such stock on the date the Agreement is executed;
(xiv) 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; and
(xv) Debtor defaults under any other material financing
arrangement between Debtor and a third party.
(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 at the lower of fifteen percent (15%) per annum or the maximum rate not
prohibited by applicable law.
(c) 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. Secured Party shall have the right to (i)
notify any account debtor of Debtor or any obligor on any installment 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 right 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 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. Secured Party may also render any or all of the
Collateral unusable at tie 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
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reasonable notice if such notice is given to the last known address of Debtor at
least five (5) 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 partial exercise of any right, power or
privilege preclude any other or further exercise of that or any cither 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.
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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, 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 seat by express mail, and (iii) on the fourth
business day after being sent by 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
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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 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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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 GENECRAFT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer Title: President & CEO
