Exhibit 10.9
BUSINESS LOAN AGREEMENT
Borrower: Advanced Life Sciences, Inc. Lender: THE LEADERS BANK
0000 Xxxxx Xxxxx 0000 XXXX XXXX, XXXXX 000
Xxxxxxxxx, XX 00000 XXX XXXXX, XX 00000
THIS BUSINESS LOAN AGREEMENT dated December 21, 2004, is made and executed
between Advanced Life Sciences, Inc. ("Borrower") and THE LEADERS BANK
("Lender") on the following terms and conditions. Borrower has received prior
commercial loans from Lender or has applied to Lender for a commercial loan or
loans or other financial accommodations, including those which may be described
on any exhibit or schedule attached to this Agreement ("Loan"). Borrower
understands and agrees that: (A) in granting, renewing, or extending any Loan,
Lender is relying upon Borrower's representations, warranties, and agreements as
set forth in this Agreement; (B) the granting, renewing, or extending of any
Loan by Lender at all times shall be subject to Lender's sole judgment and
discretion; and (C) all such Loans shall be and remain subject to the terms and
conditions of this Agreement.
TERM. This Agreement shall be effective as of December 21, 2004, and shall
continue in full force and effect until such time as all of Borrower's Loans in
favor of Lender have been paid in full, including principal, interest, costs,
expenses, attorneys' fees, and other fees and charges, or until such time as the
parties may agree in writing to terminate this Agreement.
ADVANCE AUTHORITY. The following persons currently are authorized to request
advances and authorize payments under the line of credit until Lender receives
from Borrower, at Lender's address shown above, written notice of revocation of
their authority: Xxxx X. Xxxxxx, President of Advanced Life Sciences, Inc.; and
Xxxxxxx X. Xxxxxx, CEO of Xxxxxx Ventures LLC.
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's obligation to make the initial
Advance and each subsequent Advance under this Agreement shall be subject to the
fulfillment to Lender's satisfaction of all of the conditions set forth in this
Agreement and in the Related Documents.
LOAN DOCUMENTS. Borrower shall provide to Lender the following documents
for the Loan: (1) the Note; (2) Security Agreements granting to Lender
security interests in the Collateral; (3) financing statements and all
other documents perfecting Lender's Security Interests; (4) evidence of
insurance as required below; (5) guaranties; (6) together with all such
Related Documents as Lender may require for the Loan; all in form and
substance satisfactory to Lender and Lender's counsel.
BORROWER'S AUTHORIZATION. Borrower shall have provided in form and
substance satisfactory to Lender properly certified resolutions, duly
authorizing the execution and delivery of this Agreement, the Note and the
Related Documents. In addition, Borrower shall have provided such other
resolutions, authorizations, documents and instruments as Lender or its
counsel, may require.
PAYMENT OF FEES AND EXPENSES. Borrower shall have paid to Lender all fees,
charges, and other expenses which are then due and payable as specified in
this Agreement or any Related Document.
REPRESENTATIONS AND WARRANTIES. The representations and warranties set
forth in this Agreement, in the Related Documents, and in any document or
certificate delivered to Lender under this Agreement are true and correct.
NO EVENT OF DEFAULT. There shall not exist at the time of any Advance a
condition which would constitute an Event of Default under this Agreement
or under any Related Document.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each disbursement of loan
proceeds, as of the date of any renewal, extension or modification of any Loan,
and at all times any Indebtedness exists:
ORGANIZATION. Borrower is a corporation for profit which is, and at all
times shall be, duly organized, validly existing, and in good standing
under and by virtue of the laws of the State of Illinois. Borrower has the
full power and authority to own its properties and to transact the business
in which it is presently engaged or presently proposes to engage. Borrower
maintains an office at 0000 Xxxxx Xxxxx, Xxxxxxxxx, XX 00000. Unless
Borrower has designated otherwise in writing, the principal office is the
office at which Borrower keeps its books and records including its records
concerning the Collateral. Borrower will notify Lender prior to any change
in the location of Borrower's state of organization or any change in
Borrower's name. Borrower shall do all things necessary to preserve and to
keep in full force and effect its existence, rights and privileges, and
shall comply with all regulations, rules, ordinances, statutes, orders and
decrees of any governmental or quasi-governmental authority or court
applicable to Borrower and Borrower's business activities.
ASSUMED BUSINESS NAMES. Borrower has filed or recorded all documents or
filings required by law relating to all assumed business names used by
Borrower. Excluding the name of Borrower, the following is a complete list
of all assumed business names under which Borrower does business: None.
AUTHORIZATION. Borrower's execution, delivery, and performance of this
Agreement and all the Related Documents have been duly authorized by all
necessary action by Borrower and do not conflict with, result in a
violation of, or constitute a default under (1) any provision of (a)
Borrower's articles of incorporation or organization, or bylaws, or (b) any
agreement or other instrument binding upon Borrower or (2) any law,
governmental regulation, court decree, or order applicable to Borrower or
to Borrower's properties.
FINANCIAL INFORMATION. Each of Borrower's financial statements supplied to
Lender truly and completely disclosed Borrower's financial condition as of
the date of the statement, and there has been no material adverse change in
Borrower's financial condition subsequent to the date of the most recent
financial statement supplied to Lender. Borrower has no material contingent
obligations except as disclosed in such financial statements.
LEGAL EFFECT. This Agreement constitutes, and any instrument or agreement
Borrower is required to give under this Agreement when delivered will
constitute legal, valid, and binding obligations of Borrower enforceable
against Borrower in accordance with their respective terms.
PROPERTIES. Except as contemplated by this Agreement or as previously
disclosed in Borrower's financial statements or in writing to Lender and as
accepted by Lender, and except for property tax liens for taxes not
presently due and payable, Borrower owns and has good title to all of
Borrower's properties free and clear of all Security Interests, and has not
executed any security documents or financing statements relating to such
properties. All of Borrower's properties are titled in Borrower's legal
name, and Borrower has not used or filed a financing statement under any
other name for at least the last five (5) years.
HAZARDOUS SUBSTANCES. Except as disclosed to and acknowledged by Lender in
writing, Borrower represents and warrants that (1) During the period of
Borrower's ownership of Borrower's Collateral, there has been no use,
generation, manufacture, storage, treatment, disposal, release or
threatened release of any Hazardous Substance by any person on, under,
about or from any of the Collateral. (2) Borrower has no knowledge of, or
reason to believe that there has been (a) any breach or violation of any
Environmental Laws; (b) any use, generation, manufacture, storage,
treatment, disposal, release or threatened release of any Hazardous
Substance on, under, about or from the Collateral by any prior owners or
occupants of any of the Collateral; or (c) any actual or threatened
litigation or claims of any kind by any person relating to such matters.
(3) Neither Borrower nor any tenant, contractor, agent or other authorized
user of any of the Collateral shall use, generate, manufacture, store,
treat, dispose of or release any Hazardous Substance on, under, about or
from any of the Collateral; and any such activity shall be conducted in
compliance with all applicable federal, state, and local laws, regulations,
and ordinances, including without limitation all Environmental Laws.
BUSINESS LOAN AGREEMENT
(Continued) Page 2
Borrower authorizes Lender and its agents to enter upon the Collateral to
make such inspections and tests as Lender may deem appropriate to determine
compliance of the Collateral with this section of the Agreement. Any
inspections or tests made by Lender shall be at Borrower's expense and for
Lender's purposes only and shall not be construed to create any
responsibility or liability on the part of Lender to Borrower or to any
other person. The representations and warranties contained herein are based
on Borrower's due diligence in investigating the Collateral for hazardous
waste and Hazardous Substances. Borrower hereby (1) releases and waives any
future claims against Lender for indemnity or contribution in the event
Borrower becomes liable for cleanup or other costs under any such laws, and
(2) agrees to indemnify and hold harmless Lender against any and all
claims, losses, liabilities, damages, penalties, and expenses which Lender
may directly or indirectly sustain or suffer resulting from a breach of
this section of the Agreement or as a consequence of any use, generation,
manufacture, storage, disposal, release or threatened release of a
hazardous waste or substance on the Collateral. The provisions of this
section of the Agreement, including the obligation to indemnify, shall
survive the payment of the Indebtedness and the termination, expiration or
satisfaction of this Agreement and shall not be affected by Lender's
acquisition of any interest in any of the Collateral, whether by
foreclosure or otherwise.
LITIGATION AND CLAIMS. No litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) against
Borrower is pending or threatened, and no other event has occurred which
may materially adversely affect Borrower's financial condition or
properties, other than litigation, claims, or other events, if any, that
have been disclosed to and acknowledged by Lender in writing.
TAXES. To the best of Borrower's knowledge, all of Borrower's tax returns
and reports that are or were required to be filed, have been filed, and all
taxes, assessments and other governmental charges have been paid in full,
except those presently being or to be contested by Borrower in good faith
in the ordinary course of business and for which adequate reserves have
been provided.
LIEN PRIORITY. Unless otherwise previously disclosed to Lender in writing,
Borrower has not entered into or granted any Security Agreements, or
permitted the filing or attachment of any Security Interests on or
affecting any of the Collateral directly or indirectly securing repayment
of Borrower's Loan and Note, that would be prior or that may in any way be
superior to Lender's Security Interests and rights in and to such
Collateral.
BINDING EFFECT. This Agreement, the Note, all Security Agreements (if any),
and all Related Documents are binding upon the signers thereof, as well as
upon their successors, representatives and assigns, and are legally
enforceable in accordance with their respective terms.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, so long
as this Agreement remains in effect, Borrower will:
NOTICES OF CLAIMS AND LITIGATION. Promptly inform Lender in writing of (1)
all material adverse changes in Borrower's financial condition, and (2) all
existing and all threatened litigation, claims, investigations,
administrative proceedings or similar actions affecting Borrower or any
Guarantor which could materially affect the financial condition of Borrower
or the financial condition of any Guarantor.
FINANCIAL RECORDS. Maintain its books and records in accordance with GAAP,
applied on a consistent basis, and permit Lender to examine and audit
Borrower's books and records at all reasonable times.
FINANCIAL STATEMENTS. Furnish Lender with the following:
ANNUAL STATEMENTS. As soon as available, but in no event later than
ninety (90) days after the end of each fiscal year, Borrower's balance
sheet and income statement for the year ended, audited by a certified
public accountant satisfactory to Lender.
ADDITIONAL REQUIREMENTS. Personal Financial Statement on Lenders form
provided annually by each Guarantor.
All financial reports required to be provided under this Agreement shall be
prepared in accordance with GAAP, applied on a consistent basis, and
certified by Borrower as being true and correct.
ADDITIONAL INFORMATION. Furnish such additional information and statements,
as Lender may request from time to time.
INSURANCE. Maintain fire and other risk insurance, public liability
insurance, and such other insurance as Lender may require with respect to
Borrower's properties and operations, in form, amounts, coverages and with
insurance companies acceptable to Lender. Borrower, upon request of Lender,
will deliver to Lender from time to time the policies or certificates of
insurance in form satisfactory to Lender, including stipulations that
coverages will not be cancelled or diminished without at least thirty (30)
days prior written notice to Lender. Each insurance policy also shall
include an endorsement providing that coverage in favor of Lender will not
be impaired in any way by any act, omission or default of Borrower or any
other person. In connection with all policies covering assets in which
Lender holds or is offered a security interest for the Loans, Borrower will
provide Lender with such lender's loss payable or other endorsements as
Lender may require.
INSURANCE REPORTS. Furnish to Lender, upon request of Lender, reports on
each existing insurance policy showing such information as Lender may
reasonably request, including without limitation the following: (1) the
name of the insurer; (2) the risks insured; (3) the amount of the policy;
(4) the properties insured; (5) the then current property values on the
basis of which insurance has been obtained, and the manner of determining
those values; and (6) the expiration date of the policy. In addition, upon
request of Lender (however not more often than annually), Borrower will
have an independent appraiser satisfactory to Lender determine, as
applicable, the actual cash value or replacement cost of any Collateral.
The cost of such appraisal shall be paid by Borrower.
GUARANTIES. Prior to disbursement of any Loan proceeds, furnish executed
guaranties of the Loans in favor of Lender, executed by the guarantors
named below, on Lender's forms, and in the amounts and under the conditions
set forth in those guaranties.
Names of Guarantors Amounts
------------------- -------
Xxxx X. Xxxxxx **$3,000,000.00
Xxxxxxx X. Xxxxxx **$3,000,000.00
Xxxxx X. Xxxxxx **$3,000,000.00
Xxxxxx Ventures LLC **$3,000,000.00
OTHER AGREEMENTS. Comply with all terms and conditions of all other
agreements, whether now or hereafter existing, between Borrower and any
other party and notify Lender immediately in writing of any default in
connection with any other such agreements.
LOAN FEES, CHARGES AND EXPENSES. In addition to all other agreed upon fees,
charges, and expenses, pay the following: 1. $15,000 to the Leaders Bank
as a Loan Origination Fee due at loan funding
2. At loan closing
Advanced Life Sciences Holdings, Inc. will grant
warrants entitling The Leaders Bank to purchase 3,750 shares of its common
stock (See Exhibit "B")
3. $30,000 payable to Leaders Bank upon completion and receipt by
Advanced
Life Sciences Holdings, Inc. proceeds from an Initial Public Offering.
LOAN PROCEEDS. Use all Loan proceeds solely for Borrower's business
operations, unless specifically consented to the contrary by Lender in
writing.
TAXES, CHARGES AND LIENS. Pay and discharge when due all of its
indebtedness and obligations, including without limitation all assessments,
taxes, governmental charges, levies and liens, of every kind and nature,
imposed upon Borrower or its properties, income, or profits, prior to the
BUSINESS LOAN AGREEMENT
(Continued) Page 3
date on which penalties would attach, and all lawful claims that, if
unpaid, might become a lien or charge upon any of Borrower's properties,
income, or profits.
PERFORMANCE. Perform and comply, in a finely manner, with all terms,
conditions, and provisions set forth in this Agreement, in the Related
Documents, and in all other instruments and agreements between Borrower
and Lender. Borrower shall notify Lender immediately in writing of any
default in connection with any agreement.
OPERATIONS. Maintain executive and management personnel with substantially
the same qualifications and experience as the present executive and
management personnel; provide written notice to Lender of any change in
executive and management personnel; conduct its business affairs in a
reasonable and prudent manner.
ENVIRONMENTAL STUDIES. Promptly conduct and complete, at Borrower's
expense, all such investigations, studies, samplings and testings as may be
requested by Lender or any governmental authority relative to any
substance, or any waste or by-product of any substance defined as toxic or
a hazardous substance under applicable federal, state, or local law, rule,
regulation, order or directive, at or affecting any property or any
facility owned, leased or used by Borrower.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Comply with all laws,
ordinances, and regulations, now or hereafter in effect, of all
governmental authorities applicable to the conduct of Borrower's
properties, businesses and operations, and to the use or occupancy of the
Collateral, including without limitation, the Americans With Disabilities
Act. Borrower may contest in good faith any such law, ordinance, or
regulation and withhold compliance during any proceeding, including
appropriate appeals, so long as Borrower has notified Lender in writing
prior to doing so and so long as, in Lender's sole opinion, Lender's
interests in the Collateral are not jeopardized. Lender may require
Borrower to post adequate security or a surety bond, reasonably
satisfactory to Lender, to protect Lender's interest.
INSPECTION. Permit employees or agents of Lender at any reasonable time to
inspect any and all Collateral for the Loan or Loans and Borrower's other
properties and to examine or audit Borrower's books, accounts, and records
and to make copies and memoranda of Borrower's books, accounts, and
records. If Borrower now or at any time hereafter maintains any records
(including without limitation computer generated records and computer
software programs for the generation of such records) in the possession of
a third party, Borrower, upon request of Lender, shall notify such party to
permit Lender free access to such records at all reasonable times and to
provide Lender with copies of any records it may request, all at Borrower's
expense.
ENVIRONMENTAL COMPLIANCE AND REPORTS. Borrower shall comply in all respects
with any and all Environmental Laws; not cause or permit to exist, as a
result of an intentional or unintentional action or omission on Borrower's
part or on the part of any third party, on property owned and/or occupied
by Borrower, any environmental activity where damage may result to the
environment, unless such environmental activity is pursuant to and in
compliance with the conditions of a permit issued by the appropriate
federal, state or local governmental authorities; shall furnish to Lender
promptly and in any event within thirty (30) days after receipt thereof a
copy of any notice, summons, lien, citation, directive, letter or other
communication from any governmental agency or instrumentality concerning
any intentional or unintentional action or omission on Borrower's part in
connection with any environmental activity whether or not there is damage
to the environment and/or other natural resources.
ADDITIONAL ASSURANCES. Make, execute and deliver to Lender such promissory
notes, mortgages, deeds of trust, security agreements, assignments,
financing statements, instruments, documents and other agreements as Lender
or its attorneys may reasonably request to evidence and secure the Loans
and to perfect all Security Interests.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Borrower fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Borrower's failure to discharge or pay when due any amounts;
Borrower is required to discharge or pay under this Agreement or any Related
Documents, Lender on Borrower's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on any Collateral and paying all
costs for insuring, maintaining and preserving any Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Borrower. All such expenses will become a
part of the Indebtedness and, at Lender's option, will (A) be payable on demand;
(B) be added to the balance of the Note and be apportioned among and be payable
with any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
INDEBTEDNESS AND LIENS. (1) Except for trade debt incurred in the normal
course of business and indebtedness to Lender contemplated by this
Agreement, create, incur or assume indebtedness for borrowed money,
including capital leases, (2) sell, transfer, mortgage, assign, pledge,
lease, grant a security interest in, or encumber any of Borrower's assets
(except as allowed as Permitted Liens), or (3) sell with recourse any of
Borrower's accounts, except to Lender.
CONTINUITY OF OPERATIONS. (1) Engage in any business activities
substantially different than those in which Borrower is presently engaged,
(2) cease operations, liquidate, merge, transfer, acquire or consolidate
with any other entity, change its name, dissolve or transfer or sell
Collateral out of the ordinary course of business, or (3) pay any dividends
on Borrower's stock (other than dividends payable in its stock), provided,
however that notwithstanding the foregoing, but only so long as no Event of
Default has occurred and is continuing or would result from the payment of
dividends, if Borrower is a "Subchapter S Corporation" (as defined in the
Internal Revenue Code of 1986, as amended), Borrower may pay cash dividends
on its stock to its shareholders from time to time in amounts necessary to
enable the shareholders to pay income taxes and make estimated income tax
payments to satisfy their liabilities under federal and state law which
arise solely from their status as Shareholders of a Subchapter S
Corporation because of their ownership of shares of Borrower's stock, or
purchase or retire any of Borrower's outstanding shares or alter or amend
Borrower's capital structure.
LOANS, ACQUISITIONS AND GUARANTIES. (1) Loan, invest in or advance money or
assets to any other person, enterprise or entity, (2) purchase, create or
acquire any interest in any other enterprise or entity, or (3) incur any
obligation as surety or guarantor other than in the ordinary course of
business.
AGREEMENTS. Borrower will not enter into any agreement containing any
provisions which would be violated or breached by the performance of
Borrower's obligations under this Agreement or in connection herewith.
CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to
Borrower, whether under this Agreement or under any other agreement, Lender
shall have no obligation to make Loan Advances or to disburse Loan proceeds if:
(A) Borrower or any Guarantor is in default under the terms of this Agreement or
any of the Related Documents or any other agreement that Borrower or any
Guarantor has with Lender, (B) Borrower or any Guarantor dies, becomes
incompetent or becomes insolvent, files a petition in bankruptcy or similar
proceedings, or is adjudged a bankrupt; (C) there occurs a material adverse
change in Borrower's financial condition, in the financial condition of any
Guarantor, or in the value of any Collateral securing any Loan; or (D) any
Guarantor seeks, claims or otherwise attempts to limit, modify or revoke such
Guarantor's guaranty of the Loan or any other loan with Lender; or (E) Lender in
good xxxxx xxxxx itself insecure, even though no Event of Default shall have
occurred.
BUSINESS LOAN AGREEMENT
(Continued) Page 4
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower holds
jointly with someone else and all accounts Borrower may open in the future.
However, this does not include any XXX or Xxxxx accounts, or any trust accounts
for which setoff would be prohibited by law. Borrower authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
Indebtedness against any and all such accounts, and, at Lender's option, to
administratively freeze all such accounts to allow Lender to protect Lender's
charge and setoff rights provided in this paragraph.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
PAYMENT DEFAULT. Borrower fails to make any payment when due under the
Loan.
OTHER DEFAULTS. Borrower fails to comply with or to perform any other term,
obligation, covenant or condition contained in this Agreement or in any of
the Related Documents or to comply with or to perform any term, obligation,
covenant or condition contained in any other agreement between Lender and
Borrower.
DEFAULT IN FAVOR OF THIRD PARTIES. Borrower or any Grantor defaults under
any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or person
that may materially affect any of Borrower's or any Grantor's property or
Borrower's or any Grantor's ability to repay the Loans or perform their
respective obligations under this Agreement or any of the Related
Documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this
Agreement or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes false or
misleading at any time thereafter.
INSOLVENCY. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a receiver
for any part of Borrower's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Borrower.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related Documents
ceases to be in full force and effect (including failure of any collateral
document to create a valid and perfected security interest or lien) at any
time and for any reason.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the Loan. This includes
a garnishment of any of Borrower's accounts, including deposit accounts,
with Lender. However, this Event of Default shall not apply if there is a
good faith dispute by Borrower as to the validity or reasonableness of the
claim which is the basis of the creditor or forfeiture proceeding and if
Borrower gives Lender written notice of the creditor or forfeiture
proceeding and deposits with Lender monies or a surety bond for the
creditor or forfeiture proceeding, in an amount determined by Lender, in
its sole discretion, as being an adequate reserve or bond for the dispute.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with respect
to any Guarantor of any of the Indebtedness or any Guarantor dies or
becomes incompetent, or revokes or disputes the validity of, or liability
under, any Guaranty of the Indebtedness.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent (25%)
or more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of the
Loan is impaired.
INSECURITY. Lender in good faith believes itself insecure.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where
otherwise provided in this Agreement or the Related Documents, all commitments
and obligations of Lender under this Agreement or the Related Documents or any
other agreement immediately will terminate (including any obligation to make
further Loan Advances or disbursements), and, at Lender's option, all
Indebtedness immediately will become due and payable, all without notice of any
kind to Borrower, except that in the case of an Event of Default of the type
described in the "Insolvency" subsection above, such acceleration shall be
automatic and not optional. In addition, Lender shall have all the rights and
remedies provided in the Related Documents or available at law, in equity, or
otherwise. Except as may be prohibited by applicable law, all of Lender's rights
and remedies shall be cumulative and may be exercised singularly or
concurrently. Election by Lender to pursue any remedy shall not exclude pursuit
of any other remedy, and an election to make expenditures or to take action to
perform an obligation of Borrower or of any Grantor shall not affect Lender's
right to declare a default and to exercise its rights and remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Agreement. No alteration of or amendment to this
Agreement shall be effective unless given in writing and signed by the
party or parties sought to be charged or bound by the alteration or
amendment.
ATTORNEYS' FEES; EXPENSES. Borrower agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may hire or pay someone else to help enforce this
Agreement, and Borrower shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's attorneys fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and
legal expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. Borrower also shall pay all court costs
and such additional fees as may be directed by the court.
CAPTION HEADINGS. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Agreement.
CONSENT TO LOAN PARTICIPATION. Borrower agrees and consents to Lender's
sale or transfer, whether now or later, of one or more participation
interests in the Loan to one or more purchasers, whether related or
unrelated to Lender. Lender may provide, without any limitation whatsoever,
to any one or more purchasers, or potential purchasers, any information or
knowledge Lender may have about Borrower or about any other matter relating
to the Loan, and Borrower hereby waives any rights to privacy Borrower may
have with respect to such matters. Borrower additionally waives any and all
notices of sale of participation interests, as well as all notices of any
repurchase of such participation interests. Borrower also agrees that the
purchasers of any such participation interests will be considered as the
absolute owners of such interests in the Loan and will have all the rights
granted under the participation agreement or agreements governing the sale
of such participation interests. Borrower further waives all rights of
offset or counterclaim that it may have now or later against Lender or
against any purchaser of such a participation interest and unconditionally
agrees that either Lender or such purchaser may enforce Borrower's
obligation under the Loan irrespective of the failure or insolvency of any
holder of any interest in the Loan. Borrower further agrees that the
purchaser of any such participation interests may enforce its interests
irrespective of any personal claims or defenses that Borrower may have
against Lender.
GOVERNING LAW. This Agreement will be governed by, construed and enforced
in accordance with federal law and the laws of the State of
Illinois. This
Agreement has been accepted by Lender in the State of
Illinois.
BUSINESS LOAN AGREEMENT
(Continued) Page 5
CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's
request to submit to the jurisdiction of the courts of DU PAGE County,
State of
Illinois.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any rights
under this Agreement unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Agreement shall not prejudice or constitute a
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Agreement. No prior waiver by
Lender, nor any course of dealing between Lender and Borrower, or between
Lender and any Grantor, shall constitute a waiver of any of Lender's rights
or of any of Borrower's or any Grantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any instance shall not
constitute continuing consent to subsequent instances where such consent
is required and in all cases such consent may be granted or withheld in the
sole discretion of Lender.
NOTICES. Any notice required to be given under this Agreement shall be
given in writing, and shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law), when
deposited with a nationally recognized overnight courier, or, if mailed,
when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near the
beginning of this Agreement. Any party may change its address for notices
under this Agreement by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party's address.
For notice purposes, Borrower agrees to keep Lender informed at all times
of Borrower's current address. Unless otherwise provided or required by
law, if there is more than one Borrower, any notice given by Lender to any
Borrower is deemed to be notice given to all Borrowers.
SEVERABILITY. If a court of competent jurisdiction finds any provision of
this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal,
invalid, or unenforceable as to any other circumstance. If feasible, the
offending provision shall be considered modified so that it becomes legal,
valid and enforceable. If the offending provision cannot be so modified, it
shall be considered deleted from this Agreement. Unless otherwise required
by law, the illegality, invalidity, or unenforceability of any provision of
this Agreement shall not affect the legality, validity or enforceability of
any other provision of this Agreement.
SUBSIDIARIES AND AFFILIATES OF BORROWER. To the extent the context of any
provisions of this Agreement makes it appropriate, including without
limitation any representation, warranty or covenant, the word "Borrower" as
used in this Agreement shall include all of Borrower's subsidiaries and
affiliates. Notwithstanding the foregoing however, under no circumstances
shall this Agreement be construed to require Lender to make any Loan or
other financial accommodation to any of Borrower's subsidiaries or
affiliates.
SUCCESSORS AND ASSIGNS. All covenants and agreements by or on behalf of
Borrower contained in this Agreement or any Related Documents shall bind
Borrower's successors and assigns and shall inure to the benefit of Lender
and its successors and assigns. Borrower shall not, however, have the right
to assign Borrower's rights under this Agreement or any interest therein,
without the prior written consent of Lender.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Borrower understands and agrees
that in extending Loan Advances, Lender is relying on all representations,
warranties, and covenants made by Borrower in this Agreement or in any
certificate or other instrument delivered by Borrower to Lender under this
Agreement or the Related Documents. Borrower further agrees that regardless
of any investigation made by Lender, all such representations, warranties
and covenants will survive the extension of Loan Advances and delivery to
Lender of the Related Documents, shall be continuing in nature, shall be
deemed made and redated by Borrower at the time each Loan Advance is made,
and shall remain in full force and effect until such time as Borrower's
Indebtedness shall be paid in full, or until this Agreement shall be
terminated in the manner provided above, whichever is the last to occur.
TIME IS OF THE ESSENCE. Time is of the essence in the performance of this
Agreement.
WAIVE JURY. All parties to this Agreement hereby waive the right to any
jury trial in any action, proceeding, or counterclaim brought by any party
against any other party.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code. Accounting
words and terms not otherwise defined in this Agreement shall have the meanings
assigned to them in accordance with generally accepted accounting principles as
in effect on the date of this Agreement:
ADVANCE. The word "Advance" means a disbursement of Loan funds made, or to
be made, to Borrower or on Borrower's behalf on a line of credit or
multiple advance basis under the terms and conditions of this Agreement.
AGREEMENT. The word "Agreement" means this Business Loan Agreement, as this
Business Loan Agreement may be amended or modified from time to time,
together with all exhibits and schedules attached to this Business Loan
Agreement from time to time.
BORROWER. The word "Borrower" means Advanced Life Sciences, Inc. and
includes all co-signers and co-makers signing the Note.
COLLATERAL. The word "Collateral" means all property and assets granted as
collateral security for a Loan, whether real or personal property, whether
granted directly or indirectly, whether granted now or in the future, and
whether granted in the form of a security interest, mortgage, collateral
mortgage, deed of trust, assignment, pledge, crop pledge, chattel mortgage,
collateral chattel mortgage, chattel trust, factor's lien, equipment trust,
conditional sale, trust receipt, lien, charge, lien or title retention
contract, lease or consignment intended as a security device, or any other
security or lien interest whatsoever, whether created by law, contract, or
otherwise.
ENVIRONMENTAL LAWS. The words "Environmental Laws" mean any and all state,
federal and local statutes, regulations and ordinances relating to the
protection of human health or the environment, including without limitation
the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499
("XXXX"), the Hazardous Materials Transportation Act, 49 U.S.C. Section
1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq., or other applicable state or federal laws, rules, or
regulations adopted pursuant thereto.
EVENT OF DEFAULT. The words "Event of Default" mean any of the events of
default set forth in this Agreement in the default section of this
Agreement.
GAAP. The word "GAAP" means generally accepted accounting principles.
GRANTOR. The word "Grantor" means each and all of the persons or entities
granting a Security Interest in any Collateral for the Loan, including
without limitation all Borrowers granting such a Security Interest.
GUARANTOR. The word "Guarantor" means any guarantor, surety, or
accommodation party of any or all of the Loan.
GUARANTY. The word "Guaranty" means the guaranty from Guarantor to Lender,
including without limitation a guaranty of all or part of the Note.
HAZARDOUS SUBSTANCES. The words "Hazardous Substances" mean materials that,
because of their quantity, concentration or physical, chemical
BUSINESS LOAN AGREEMENT
(Continued) Page 6
or infectious characteristics, may cause or pose a present or potential
hazard to human health or the environment when improperly used, treated,
stored, disposed of, generated, manufactured, transported or otherwise
handled. The words "Hazardous Substances" are used in their very broadest
sense and include without limitation any and all hazardous or toxic
substances, materials or waste as defined by or listed under the
Environmental Laws. The term "Hazardous Substances" also includes, without
limitation, petroleum and petroleum by-products or any fraction thereof and
asbestos.
INDEBTEDNESS. The word "Indebtedness" means the indebtedness evidenced by
the Note or Related Documents, including all principal and interest
together with all other indebtedness and costs and expenses for which
Borrower is responsible under this Agreement or under any of the Related
Documents.
LENDER. The word "Lender" means THE LEADERS BANK, its successors and
assigns.
LOAN. The word "Loan" means any and all loans and financial accommodations
from Lender to Borrower whether now or hereafter existing, and however
evidenced, including without limitation those loans and financial
accommodations described herein or described on any exhibit or schedule
attached to this Agreement from time to time.
NOTE. The word "Note" means the Note executed by Advanced Life Sciences,
Inc. in the principal amount of $3,000,000.00 dated December 21, 2004,
together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the note or
credit agreement.
PERMITTED LIENS. The words "Permitted Liens" mean (1) liens and security
interests securing Indebtedness owed by Borrower to Lender; (2) liens for
taxes, assessments, or similar charges either not yet due or being
contested in good faith; (3) liens of materialmen, mechanics,
warehousemen, or carriers, or other like liens arising in the ordinary
course of business and securing obligations which are not yet delinquent;
(4) purchase money liens or purchase money security interests upon or in
any property acquired or held by Borrower in the ordinary course of
business to secure indebtedness outstanding on the date of this Agreement
or permitted to be incurred under the paragraph of this Agreement titled
"Indebtedness and Liens"; (5) liens and security interests which, as of the
date of this Agreement, have been disclosed to and approved by the Lender
in writing; and (6) those liens and security interests which in the
aggregate constitute an immaterial and insignificant monetary amount with
respect to the net value of Borrower's assets.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Loan.
SECURITY AGREEMENT. The words "Security Agreement" mean and include without
limitation any agreements, promises, covenants, arrangements,
understandings or other agreements, whether created by law, contract, or
otherwise, evidencing, governing, representing, or creating a Security
Interest.
SECURITY INTEREST. The words "Security Interest" mean, without limitation,
any and all types of collateral security, present and future, whether in
the form of a lien, charge, encumbrance, mortgage, deed of trust, security
deed, assignment, pledge, crop pledge, chattel mortgage, collateral chattel
mortgage, chattel trust, factor's lien, equipment trust, conditional sale,
trust receipt, lien or title retention contract, lease or consignment
intended as a security device, or any other security or lien interest
whatsoever whether created by law, contract, or otherwise.
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN
AGREEMENT AND BORROWER AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS
DATED DECEMBER 21, 2004.
BORROWER:
ADVANCED LIFE SCIENCES, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------------------
Xxxx X. Xxxxxx, President of Advanced Life
Sciences, Inc.
LENDER:
THE LEADERS BANK
By: /s/ Xxxxx X. Xxxxx
------------------------------------------------
Authorized Signer
[ILLEGIBLE]
PROMISSORY NOTE
Borrower: Advanced Life Sciences, Inc. Lender: THE LEADERS BANK
0000 Xxxxx Xxxxx 0000 XXXX XXXX, XXXXX 000
Xxxxxxxxx, XX 00000 XXX XXXXX, XX 00000
1000705
Principal Amount: $3,000,000.00 Initial Rate: 6.250% Date of Note: December 21, 2004
PROMISE TO PAY. Advanced Life Sciences, Inc. ("Borrower") promises to pay to THE
LEADERS BANK ("Lender"), or order, in lawful money of the United States of
America, the principal amount of Three Million & 00/100 Dollars ($3,000,000.00)
or so much as may be outstanding, together with interest on the unpaid
outstanding principal balance of each advance. Interest shall be calculated from
the date of each advance until repayment of each advance.
PAYMENT. Borrower will pay this loan on demand. Payment in full is due
immediately upon Lender's demand. If no demand is made, Borrower will pay this
loan in one payment of all outstanding principal plus all accrued unpaid
interest on December 21, 2006. In addition, Borrower will pay regular monthly
payments of all accrued unpaid interest due as of each payment date, beginning
January 21, 2005, with all subsequent interest payments to be due on the same
day of each month after that. Unless otherwise agreed or required by applicable
law, payments will be applied first to any accrued unpaid interest; then to
principal; then to any unpaid collection costs; and then to any late charges.
The annual interest rate for this Note is computed on a 365/360 basis; that is,
by applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual number
of days the principal balance is outstanding. Borrower will pay Lender at
Lender's address shown above or at such other place as Lender may designate in
writing.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an index which is the Leaders Bank Index Rate
as periodically announced by The Leaders Bank (the "Index"). The index is not
necessarily the lowest rate charged by Lender on its loans and is set by Lender
in its sole discretion. If the index becomes unavailable during the term of this
loan, Lender may designate a substitute index after notifying Borrower. Lender
will tell Borrower the current index rate upon Borrower's request. The interest
rate change will not occur more often than each day. Borrower understands that
Lender may make loans based on other rates as well. The index currently is
5.250% per annum. The interest rate to be applied to the unpaid principal
balance of this Note will be at a rate of 1.000 percentage point over the index,
resulting in an initial rate of 6.250% per annum. NOTICE: Under no circumstances
will the interest rate on this Note be more than the maximum rate allowed by
applicable law.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed
earlier than it is due. Early payments will not, unless agreed to by Lender in
writing, relieve Borrower of Borrower's obligation to continue to make payments
of accrued unpaid interest. Rather, early payments will reduce the principal
balance due. Borrower agrees not to send Lender payments marked "paid in full",
"without recourse", or similar language. If Borrower sends such a payment,
Lender may accept it without losing any of Lender's rights under this Note, and
Borrower will remain obligated to pay any further amount owed to Lender. All
written communications concerning disputed amounts, including any check or other
payment instrument that indicates that the payment constitutes "payment in full"
of the amount owed or that is tendered with other conditions or limitations or
as full satisfaction of a disputed amount must be mailed or delivered to: The
Leaders Bank, Xxxx Xxxxxx Xxx 0000 Xxx Xxxxx, XX 00000-0000.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged
5.000% of the regularly scheduled payment or $10.00, whichever is greater.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final
maturity, Lender, at its option, may, if permitted under applicable law,
increase the variable interest rate on this Note to 5.000 percentage points over
the index. The interest rate will not exceed the maximum rate permitted by
applicable law.
DEFAULT. Each of the following shall constitute an event of default ("Event of
Default") under this Note:
PAYMENT DEFAULT. Borrower fails to make any payment when due under this
Note.
OTHER DEFAULTS. Borrower fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Note or in any of
the related documents or to comply with or to perform any term, obligation,
covenant or condition contained in any other agreement between Lender and
Borrower.
DEFAULT IN FAVOR OF THIRD PARTIES. Borrower or any Grantor defaults under
any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or person
that may materially affect any of Borrower's property or Borrower's ability
to repay this Note or perform Borrower's obligations under this Note or any
of the related documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this Note or
the related documents is false or misleading in any material respect,
either now or at the time made or furnished or becomes false or misleading
at any time thereafter.
INSOLVENCY. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a receiver
for any part of Borrower's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Borrower.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the loan. This includes
a garnishment of any of Borrower's accounts, including deposit accounts,
with Lender. However, this Event of Default shall not apply if there is a
good faith dispute by Borrower as to the validity or reasonableness of the
claim which is the basis of the creditor or forfeiture proceeding and if
Borrower gives Lender written notice of the creditor or forfeiture
proceeding and deposits with Lender monies or a surety bond for the
creditor or forfeiture proceeding, in an amount determined by Lender, in
its sole discretion, as being an adequate reserve or bond for the dispute.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with respect
to any Guarantor of any of the indebtedness or any Guarantor dies or
becomes incompetent, or revokes or disputes the validity of, or liability
under, any guaranty of the indebtedness evidenced by this Note.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent (25%)
or more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of
this Note is impaired.
INSECURITY. Lender in good faith believes itself insecure.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, and then
Borrower will pay that amount.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect
this Note if Borrower does not pay. Borrower will pay Lender that amount. This
includes, subject to any limits under applicable law. Lender's attorneys' fees
and Lender's legal expenses, whether or not there is a lawsuit, including
attorneys' fees, expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), and
PROMISSORY NOTE
(Continued) Page 2
appeals. If not prohibited by applicable law, Borrower also will pay any court
costs, in addition to all other sums provided by law.
JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any
action, proceeding, or counterclaim brought by either Lender or Borrower against
the other.
GOVERNING LAW. This Note will be governed by, construed and enforced in
accordance with federal law and the laws of the State of
Illinois. This Note has
been accepted by Lender in the State of
Illinois.
CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request to
submit to the jurisdiction of the courts of DU PAGE County, State of
Illinois.
CONFESSION OF JUDGMENT. Borrower hereby irrevocably authorizes and empowers any
attorney-at-law to appear in any court of record and to confess judgment against
Borrower for the unpaid amount of this Note as evidenced by an affidavit signed
by an officer of Lender setting forth the amount then due, attorneys' fees plus
costs of suit, and to release all errors, and waive all rights of appeal. If a
copy of this Note, verified by an affidavit, shall have been filed in the
proceeding, it will not be necessary to file the original as a warrant of
attorney. Borrower waives the right to any stay of execution and the benefit of
all exemption laws now or hereafter in effect. No single exercise of the
foregoing warrant and power to confess judgment will be deemed to exhaust the
power, whether or not any such exercise shall be held by any court to be
invalid, voidable, or void; but the power will continue undiminished and may be
exercised from time to time as Lender may elect until all amounts owing on this
Note have been paid in full. Borrower hereby waives and releases any and all
claims or causes of action which Borrower might have against any attorney acting
under the terms of authority which Borrower has granted herein arising out of or
connected with the confession of judgement hereunder.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower holds
jointly with someone else and all accounts Borrower may open in the future.
However, this does not include any XXX or Xxxxx accounts, or any trust accounts
for which setoff would be prohibited by law. Borrower authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
indebtedness against any and all such accounts, and, at Lender's option, to
administratively freeze all such accounts to allow Lender to protect Lender's
charge and setoff rights provided in this paragraph.
COLLATERAL. Borrower acknowledges this Note is secured by a Commercial Security
Agreement from Borrower to Lender dated December 21, 2004 pledging all corporate
assets; a Junior Mortgage dated December 21, 2004 on the property commonly known
as 0000 Xxxxx Xxxx, Xxxxxxxxx, XX and held in the name of BioStart Property
Group, LLC; a Commercial Security Agreement dated December 21, 2004 pledging all
Advanced Life Sciences Holdings, Inc. Common Stock held by Xxxxxx Ventures, LLC;
a Sub-License of the Licensing Agreement between Xxxxxx Laboratories and
Advanced Life Sciences Holdings, Inc.; the Commercial Guaranty of Xxxxxx
Ventures, LLC; and the Personal Guarantys of Xxxxxxx X. Xxxxxx, Xxxxx X.
Xxxxxx, and Xxxx X. Xxxxxx.
LINE OF CREDIT. This Note evidences a straight line of credit. Once the total
amount of principal has been advanced, Borrower is not entitled to further loan
advances. Advances under this Note may be requested orally by Borrower or as
provided in this paragraph. All oral requests shall be confirmed in writing on
the day of the request. All communications, instructions, or directions by
telephone or otherwise to Lender are to be directed to Lender's office shown
above. The following persons currently are authorized to request advances and
authorize payments under the line of credit until Lender receives from Borrower,
at Lender's address shown above, written notice of revocation of their
authority: Xxxx X. Xxxxxx, President of Advanced Life Sciences, Inc.; and
Xxxxxxx X. Xxxxxx, CEO of Xxxxxx Ventures LLC. Borrower agrees to be liable for
all sums either: (A) advanced in accordance with the instructions of an
authorized person or (B) credited to any of Borrower's accounts with Lender. The
unpaid principal balance owing on this Note at any time may be evidenced by
endorsements on this Note or by Lender's internal records, including daily
computer print-outs. Lender will have no obligation to advance funds under this
Note if: (A) Borrower or any guarantor is in default under the terms of this
Note or any agreement that Borrower or any guarantor has with Lender, including
any agreement made in connection with the signing of this Note; (B) Borrower or
any guarantor ceases doing business or is insolvent; (C) any guarantor seeks,
claims or otherwise attempts to limit, modify or revoke such guarantor's
guarantee of this Note or any other loan with Lender; (D) Borrower has applied
funds provided pursuant to this Note for purposes other than those authorized by
Lender; or (E) Lender in good faith believes itself insecure.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and
upon Borrower's heirs, personal representatives, successors and assigns, and
shall inure to the benefit of Lender and its successors and assigns.
NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES.
Please notify us if we report any inaccurate information about your account(s)
to a consumer reporting agency. Your written notice describing the specific
inaccuracy(ies) should be sent to us at the following address: The Leaders Bank
X.X. Xxx 0000 Xxx Xxxxx, XX 00000-0000
GENERAL PROVISIONS. This Note is payable on demand. The inclusion of specific
default provisions or rights of Lender shall not preclude Lender's right to
declare payment of this Note on its demand. Lender may delay or forgo enforcing
any of its rights or remedies under this Note without losing them. Borrower and
any other person who signs, guarantees or endorses this Note, to the extent
allowed by law, waive presentment, demand for payment, and notice of dishonor.
Upon any change in the terms of this Note, and unless otherwise expressly stated
in writing, no party who signs this Note, whether as maker, guarantor,
accommodation maker or endorser, shall be released from liability. All such
parties agree that Lender may renew or extend (repeatedly and for any length of
time) this loan or release any party or guarantor or collateral; or impair, fail
to realize upon or perfect Lender's security interest in the collateral; and
take any other action deemed necessary by Lender without the consent of or
notice to anyone. All such parties also agree that Lender may modify this loan
without the consent of or notice to anyone other than the party with whom the
modification is made. The obligations under this Note are joint and several.
ILLINOIS INSURANCE NOTICE. Unless Borrower provides Lender with evidence of the
insurance coverage required by Borrower's agreement with Lender, Lender may
purchase insurance at Borrower's expense to protect Lender's interests in the
collateral. This insurance may, but need not, protect Borrower's interests. The
coverage that Lender purchases may not pay any claim that Borrower makes or any
claim that is made against Borrower in connection with the collateral. Borrower
may later cancel any insurance purchased by Lender, but only after providing
Lender with evidence that Borrower has obtained insurance as required by their
agreement. If Lender purchases insurance for the collateral, Borrower will be
responsible for the costs of that insurance, including interest and any other
charges Lender may impose in connection with the placement of the insurance,
until the effective date of the cancellation or expiration of the insurance. The
costs of the insurance may be added to Borrower's total outstanding balance or
obligation. The costs of the insurance may be more than the cost of insurance
Borrower may be able to obtain on Borrower's own.
PROMISSORY NOTE
(Continued) Page 3
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO
THE TERMS OF THE NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
BORROWER:
ADVANCED LIFE SCIENCES, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Xxxx X. Xxxxxx, President of Advanced Life
Sciences, Inc.
[ILLEGIBLE]
DISBURSEMENT REQUEST AND AUTHORIZATION
Borrower: Advanced Life Sciences, Inc. Lender: THE LEADERS BANK
0000 Xxxxx Xxxxx 0000 XXXX XXXX, XXXXX 000
Xxxxxxxxx, XX 00000 XXX XXXXX, XX 00000
1000705
LOAN TYPE. This is a Variable Rate Nondisclosable Revolving Line of Credit Loan
to a Corporation for $3,000,000.00 due on December 21, 2006. The reference rate
(Leaders Bank Index Rate as periodically announced by The Leaders Bank,
currently 5.250%) is added to the margin of 1.000%, resulting in an initial
rate of 6.250.
PRIMARY PURPOSE OF LOAN. The primary purpose of this loan is for:
/ / Personal, Family, or Household Purposes or Personal Investment.
/X/ Business.
SPECIFIC PURPOSE. The specific purpose of this loan is: working capital line of
credit.
REAL ESTATE DOCUMENTS. If any party to this transaction is granting a security
interest in any real property to Lender and Advanced Life Sciences, Inc. is not
also a party to the real estate document or documents (the "Real Estate
Documents") granting such security interest, Borrower agrees to perform and
comply with the Real Estate Documents just as if Borrower has signed as a direct
and original party to the Real Estate Documents. This means Borrower agrees to
all the representations and warranties made in the Real Estate Documents. In
addition, Borrower agrees to perform and comply strictly with all the terms,
obligations and covenants to be performed by either Borrower or any Grantor or
Trustor, or both, as those words are defined in the Real Estate Documents.
Lender need not tell Borrower about any action or inaction Lender takes in
connection with the Real Estate Documents. Borrower assumes the responsibility
for being and keeping informed about the property. Borrower also waives any
defenses that may arise because of any action or inaction of Lender, including
without limitation any failure of Lender to realize upon the property, or any
delay by Lender in realizing upon the property.
FLOOD INSURANCE. As reflected on Flood Map No. 170197 0065B dated 04-15-1982,
for the community of DuPage County, some of the property that will secure the
loan is not located in an area that has been identified by the Director of the
Federal Emergency Management Agency as an area having special flood hazards.
Therefore, although flood insurance may be available for the property, no
special flood hazard insurance is required by law for this loan.
DISBURSEMENT INSTRUCTIONS. Borrower understands that no loan proceeds will be
disbursed until all of Lender's conditions for making the loan have been
satisfied. Please disburse the loan proceeds of $3,000,000.00 as follows:
Undisbursed Funds: $2,985,000.00
Other Charges Financed: $ 15,000.00
$15,000.00 Loan Documentation Fee
-------------
Note Principal: $3,000,000.00
FINANCIAL CONDITION. BY SIGNING THIS AUTHORIZATION, BORROWER REPRESENTS AND
WARRANTS TO LENDER THAT THE INFORMATION PROVIDED ABOVE IS TRUE AND CORRECT AND
THAT THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN BORROWER'S FINANCIAL CONDITION
AS DISCLOSED IN BORROWER'S MOST RECENT FINANCIAL STATEMENT TO LENDER. THIS
AUTHORIZATION IS DATED DECEMBER 21, 2004.
BORROWER:
ADVANCED LIFE SCIENCES, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Xxxx X. Xxxxxx, President of Advanced Life
Sciences, Inc.
[ILLEGIBLE]
COMMERCIAL SECURITY AGREEMENT
Grantor: Advanced Life Sciences, Inc. Lender: THE LEADERS BANK
0000 Xxxxx Xxxxx 0000 XXXX XXXX, XXXXX 000
Xxxxxxxxx, XX 00000 XXX XXXXX, XX 00000
THIS COMMERCIAL SECURITY AGREEMENT dated December 21, 2004, is made and executed
between Advanced Life Sciences, Inc. ("Grantor") and THE LEADERS BANK
("Lender").
GRANT OF SECURITY INTEREST. For valuable consideration, Grantor grants to Lender
a security interest in the Collateral to secure the Indebtedness and agrees that
Lender shall have the rights stated in this Agreement with respect to the
Collateral, in addition to all other rights which Lender may have by law.
COLLATERAL DESCRIPTION. The word "Collateral" as used in this Agreement means
the following described property, whether now owned or hereafter acquired,
whether now existing or hereafter arising, and wherever located, in which
Grantor is giving to Lender a security interest for the payment of the
Indebtedness and performance of all other obligations under the Note and this
Agreement:
ALL INVENTORY, CHATTEL PAPER, ACCOUNTS, EQUIPMENT AND GENERAL INTANGIBLES
In addition, the word "Collateral" also includes all the following, whether now
owned or hereafter acquired, whether now existing or hereafter arising, and
wherever located:
(A) All accessions, attachments, accessories, tools, parts, supplies,
replacements of and additions to any of the collateral described herein,
whether added now or later.
(B) All products and produce of any of the property described in this
Collateral section.
(C) All accounts, general intangibles, instruments, rents, monies,
payments, and all other rights, arising out of a sale, lease, consignment
or other disposition of any of the property described in this Collateral
section.
(D) All proceeds (including insurance proceeds) from the sale, destruction,
loss, or other disposition of any of the property described in this
Collateral section, and sums due from a third party who has damaged or
destroyed the Collateral or from that party's insurer, whether due to
judgment, settlement or other process.
(E) All records and data relating to any of the property described in this
Collateral section, whether in the form of a writing, photograph,
microfilm, microfiche, or electronic media, together with all of Grantor's
right, title, and interest in and to all computer software required to
utilize, create, maintain, and process any such records or data on
electronic media.
Despite any other provision of this Agreement, Lender is not granted, and will
not have, a nonpurchase money security interest in household goods, to the
extent such a security interest would be prohibited by applicable law. In
addition, if because of the type of any Property, Lender is required to give a
notice of the right to cancel under Truth in Lending for the Indebtedness, then
Lender will not have a security interest in such Collateral unless and until
such a notice is given.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Grantor's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Grantor holds
jointly with someone else and all accounts Grantor may open in the future.
However, this does not include any XXX or Xxxxx accounts, or any trust accounts
for which setoff would be prohibited by law. Grantor authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
Indebtedness against any and all such accounts, and, at Lender's option, to
administratively freeze all such accounts to allow Lender to protect Lender's
charge and setoff rights provided in this paragraph.
GRANTOR'S REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL. With
respect to the Collateral, Grantor represents and promises to Lender that:
PERFECTION OF SECURITY INTEREST. Grantor agrees to take whatever actions
are requested by Lender to perfect and continue Lender's security interest
in the Collateral. Upon request of Lender, Grantor will deliver to Lender
any and all of the documents evidencing or constituting the Collateral, and
Grantor will note Lender's interest upon any and all chattel paper and
instruments if not delivered to Lender for possession by Lender. This is a
continuing Security Agreement and will continue in effect even though all
or any part of the Indebtedness is paid in full and even though for a
period of time Grantor may not be indebted to Lender.
NOTICES TO LENDER. Grantor will promptly notify Lender in writing at
Lender's address shown above (or such other addresses as Lender may
designate from time to time) prior to any (1) change in Grantor's name; (2)
change in Grantor's assumed business name(s); (3) change in the management
of the Corporation Grantor; (4) change in the authorized signer(s); (5)
change in Grantor's principal office address; (6) change in Grantor's state
of organization; (7) conversion of Grantor to a new or different type of
business entity; or (8) change in any other aspect of Grantor that directly
or indirectly relates to any agreements between Grantor and Lender. No
change in Grantor's name or state of organization will take effect until
after Lender has received notice.
NO VIOLATION. The execution and delivery of this Agreement will not violate
any law or agreement governing Grantor or to which Grantor is a party, and
its certificate or articles of incorporation and bylaws do not prohibit any
term or condition of this Agreement.
ENFORCEABILITY OF COLLATERAL. To the extent the Collateral consists of
accounts, chattel paper, or general intangibles, as defined by the Uniform
Commercial Code, the Collateral is enforceable in accordance with its
terms, is genuine, and fully complies with all applicable laws and
regulations concerning form, content and manner of preparation and
execution, and all persons appearing to be obligated on the Collateral have
authority and capacity to contract and are in fact obligated as they appear
to be on the Collateral. At the time any account becomes subject to a
security interest in favor of Lender, the account shall be a good and valid
account representing an undisputed, bona fide indebtedness incurred by the
account debtor, for merchandise held subject to delivery instructions or
previously shipped or delivered pursuant to a contract of sale, or for
services previously performed by Grantor with or for the account debtor. So
long as this Agreement remains in effect, Grantor shall not, without
Lender's prior written consent, compromise, settle, adjust, or extend
payment under or with regard to any such Accounts. There shall be no
setoffs or counterclaims against any of the Collateral, and no agreement
shall have been made under which any deductions or discounts may be claimed
concerning the Collateral except those disclosed to Lender in writing.
LOCATION OF THE COLLATERAL. Except in the ordinary course of Grantor's
business, Grantor agrees to keep the Collateral (or to the extent the
Collateral consists of intangible property such as accounts or general
intangibles, the records concerning the Collateral) at Grantor's address
shown above or at such other locations as are acceptable to Lender. Upon
Lender's request, Grantor will deliver to Lender in form satisfactory to
Lender a schedule of real properties and Collateral locations relating to
Grantor's operations, including without limitation the following: (1) all
real property Grantor owns or is purchasing; (2) all real property Grantor
is renting or leasing; (3) all storage facilities Grantor owns, rents,
leases, or uses; and (4) all other properties where Collateral is or may be
located.
REMOVAL OF THE COLLATERAL. Except in the ordinary course of Grantor's
business, including the sales of inventory. Grantor shall not remove the
COMMERCIAL SECURITY AGREEMENT'
(Continued) Page 2
Collateral from its existing location without Lender's prior written consent. To
the extent that the Collateral consists of vehicles, or other titled property,
Grantor shall not take or permit any action which would require application for
certificates of title for the vehicles outside the State of
Illinois, without
Lender's prior written consent. Grantor shall, whenever requested, advise Lender
of the exact location of the Collateral.
TRANSACTIONS INVOLVING COLLATERAL. Except for inventory sold or accounts
collected in the ordinary course of Grantor's business, or as otherwise provided
for in this Agreement, Grantor shall not sell, offer to sell, or otherwise
transfer or dispose of the Collateral. While Grantor is not in default under
this Agreement, Grantor may sell inventory, but only in the ordinary course of
its business and only to buyers who qualify as a buyer in the ordinary course of
business. A sale in the ordinary course of Grantor's business does not include a
transfer in partial or total satisfaction of a debt or any bulk sale. Grantor
shall not pledge, mortgage, encumber or otherwise permit the Collateral to be
subject to any lien, security interest, encumbrance, or charge, other than the
security interest provided for in this Agreement, without the prior written
consent of Lender. This includes security interests even if junior in right to
the security interests granted under this Agreement. Unless waived by Lender,
all proceeds from any disposition of the Collateral (for whatever reason) shall
be held in trust for Lender and shall not be commingled with any other funds;
provided however, this requirement shall not constitute consent by Lender to any
sale or other disposition. Upon receipt, Grantor shall immediately deliver any
such proceeds to Lender.
TITLE. Grantor represents and warrants to Lender that Grantor holds good and
marketable title to the Collateral, free and clear of all liens and encumbrances
except for the lien of this Agreement. No financing statement covering any of
the Collateral is on file in any public office other than those which reflect
the security interest created by this Agreement or to which Lender has
specifically consented. Grantor shall defend Lender's rights in the Collateral
against the claims and demands of all other persons.
REPAIRS AND MAINTENANCE. Grantor agrees to keep and maintain, and to cause
others to keep and maintain, the Collateral in good order, repair and condition
at all times while this Agreement remains in effect. Grantor further agrees to
pay when due all claims for work done on, or services rendered or material
furnished in connection with the Collateral so that no lien or encumbrance may
ever attach to or be filed against the Collateral.
INSPECTION OF COLLATERAL. Lender and Lender's designated representatives and
agents shall have the right at all reasonable times to examine and inspect the
Collateral wherever located.
TAXES, ASSESSMENTS AND LIENS. Grantor will pay when due all taxes, assessments
and liens upon the Collateral, its use or operation, upon this Agreement, upon
any promissory note or notes evidencing the Indebtedness, or upon any of the
other Related Documents. Grantor may withhold any such payment or may elect to
contest any lien if Grantor is in good faith conducting an appropriate
proceeding to contest the obligation to pay and so long as Lender's interest in
the Collateral is not jeopardized in Lender's sole opinion. If the Collateral is
subjected to a lien which is not discharged within fifteen (15) days, Grantor
shall deposit with Lender cash, a sufficient corporate surety bond or other
security satisfactory to Lender in an amount adequate to provide for the
discharge of the lien plus any interest, costs, attorneys' fees or other charges
that could accrue as a result of foreclosure or sale of the Collateral. In any
contest Grantor shall defend itself and Lender and shall satisfy any final
adverse judgment before enforcement against the Collateral. Grantor shall name
Lender as an additional obligee under any surety bond furnished in the contest
proceedings. Grantor further agrees to furnish Lender with evidence that such
taxes, assessments, and governmental and other charges have been paid in full
and in a timely manner. Grantor may withhold any such payment or may elect to
contest any lien if Grantor is in good faith conducting an appropriate
proceeding to contest the obligation to pay and so long as Lender's interest in
the Collateral is not jeopardized.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Grantor shall comply promptly with
all laws, ordinances, rules and regulations of all governmental authorities, now
or hereafter in effect, applicable to the ownership, production, disposition, or
use of the Collateral, including all laws or regulations relating to the undue
erosion of highly-erodible land or relating to the conversion of wetlands for
the production of an agricultural product or commodity. Grantor may contest in
good faith any such law, ordinance or regulation and withhold compliance during
any proceeding, including appropriate appeals, so long as Lender's interest in
the Collateral, in Lender's opinion, is not jeopardized.
HAZARDOUS SUBSTANCES. Grantor represents and warrants that the Collateral never
has been, and never will be so long as this Agreement remains a lien on the
Collateral, used in violation of any Environmental Laws or for the generation,
manufacture, storage, transportation, treatment, disposal, release or threatened
release of any Hazardous Substance. The representations and warranties contained
herein are based on Grantor's due diligence in investigating the Collateral for
Hazardous Substances. Grantor hereby (1) releases and waives any future claims
against Lender for indemnity or contribution in the event Grantor becomes liable
for cleanup or other costs under any Environmental Laws, and (2) agrees to
indemnify and hold harmless Lender against any and all claims and losses
resulting from a breach of this provision of this Agreement. This obligation to
indemnify shall survive the payment of the Indebtedness and the satisfaction of
this Agreement.
MAINTENANCE OF CASUALTY INSURANCE. Grantor shall procure and maintain all risks
insurance, including without limitation fire, theft and liability coverage
together with such other insurance as Lender may require with respect to the
Collateral, in form, amounts, coverages and basis reasonably acceptable to
Lender and issued by a company or companies reasonably acceptable to Lender.
Grantor, upon request of Lender, will deliver to Lender from time to time the
policies or certificates of insurance in form satisfactory to Lender, including
stipulations that coverages will not be cancelled or diminished without at least
thirty (30) days' prior written notice to Lender and not including any
disclaimer of the insurer's liability for failure to give such a notice. Each
insurance policy also shall include an endorsement providing that coverage in
favor of Lender will not be impaired in any way by any act, omission or default
of Grantor or any other person. In connection with all policies covering assets
in which Lender holds or is offered a security interest, Grantor will provide
Lender with such loss payable or other endorsements as Lender may require. If
Grantor at any time fails to obtain or maintain any insurance as required under
this Agreement, Lender may (but shall not be obligated to) obtain such insurance
as Lender deems appropriate, including if Lender so chooses "single interest
insurance," which will cover only Lender's interest in the Collateral.
APPLICATION OF INSURANCE PROCEEDS. Grantor shall promptly notify Lender of any
loss or damage to the Collateral. Lender may make proof of loss if Grantor fails
to do so within fifteen (15) days of the casualty. All proceeds of any insurance
on the Collateral, including accrued proceeds thereon, shall be held by Lender
as part of the Collateral. If Lender consents to repair or replacement of the
damaged or destroyed Collateral, Lender shall, upon satisfactory proof of
expenditure, pay or reimburse Grantor from the proceeds for the reasonable cost
of repair or restoration. If Lender does not consent to repair or replacement of
the Collateral, Lender shall retain a sufficient amount of the proceeds to pay
all of the Indebtedness, and shall pay the balance to Grantor. Any proceeds
which have not been disbursed within six (6) months after their receipt and
which Grantor has not committed to the repair or restoration of the Collateral
shall be used to prepay the Indebtedness.
INSURANCE RESERVES. Lender may require Grantor to maintain with Lender reserves
for payment of insurance premiums, which reserves shall be created by monthly
payments from Grantor of a sum estimated by Lender to be sufficient to produce,
at least fifteen (15) days before the premium due date, amounts at least equal
to the insurance premiums to be paid. If fifteen (15) days before payment is
due, the reserve funds are insufficient, Grantor shall upon demand pay any
deficiency to Lender. The reserve funds shall be held by Lender as a general
deposit and shall constitute a non-interest-bearing account which Lender may
satisfy by payment of the insurance premiums required to be paid by Grantor as
they become due. Lender does not hold the reserve funds in trust for Grantor,
and Lender is not the agent of Grantor for payment of the insurance premiums
required to be paid by Grantor. The responsibility for the payment of premiums
shall remain Grantor's sole responsibility.
INSURANCE REPORTS. Grantor, upon request of Lender, shall furnish to Lender
reports on each existing policy of insurance showing such information as Lender
may reasonably request including the following: (1) the name of the insurer; (2)
the risks insured; (3) the amount of the
COMMERCIAL SECURITY AGREEMENT
(Continued) Page 3
policy; (4) the property insured; (5) the then current value on the basis
of which insurance has been obtained and the manner of determining that
value; and (6) the expiration date of the policy. In addition, Grantor
shall upon request by Lender (however not more often than annually) have an
independent appraiser satisfactory to Lender determine, as applicable, the
cash value or replacement cost of the Collateral.
FINANCING STATEMENTS. Grantor authorizes Lender to file a UCC financing
statement, or alternatively, a copy of this Agreement to perfect Lender's
security interest. At Lender's request, Grantor additionally agrees to sign
all other documents that are necessary to perfect, protect, and continue
Lender's security interest in the Property. Grantor will pay all filing
fees, title transfer fees, and other fees and costs involved unless
prohibited by law or unless Lender is required by law to pay such fees and
costs. Grantor irrevocably appoints Lender to execute documents necessary
to transfer title if there is a default. Lender may file a copy of this
Agreement as a financing statement. If Grantor changes Grantor's name or
address, or the name or address of any person granting a security interest
under this Agreement changes, Grantor will promptly notify the Lender of
such change.
GRANTOR'S RIGHT TO POSSESSION AND TO COLLECT ACCOUNTS. Until default and except
as otherwise provided below with respect to accounts, Grantor may have
possession of the tangible personal property and beneficial use of all the
Collateral and may use it in any lawful manner not inconsistent with this
Agreement or the Related Documents, provided that Grantor's right to possession
and beneficial use shall not apply to any Collateral where possession of the
Collateral by Lender is required by law to perfect Lender's security interest in
such Collateral. Until otherwise notified by Lender, Grantor may collect any of
the Collateral consisting of accounts. At any time and even though no Event of
Default exists, Lender may exercise its rights to collect the accounts and to
notify account debtors to make payments directly to Lender for application to
the Indebtedness. If Lender at any time has possession of any Collateral,
whether before or after en Event of Default, Lender shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral if
Lender takes such action for that purpose as Grantor shall request or as Lender,
in Lender's sole discretion, shall deem appropriate under the circumstances, but
failure to honor any request by Grantor shall not of itself be deemed to be a
failure to exercise reasonable care. Lender shall not be required to take any
steps necessary to preserve any rights in the Collateral against prior parties,
nor to protect, preserve or maintain any security interest given to secure the
Indebtedness.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Grantor fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Grantor's failure to discharge or pay when due any amounts
Grantor is required to discharge or pay under this Agreement or any Related
Documents, Lender on Grantor's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on the Collateral and paying all
costs for insuring, maintaining and preserving the Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Grantor. All such expenses will become a part
of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B)
be added to the balance of the Note and be apportioned among and be payable with
any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity. The Agreement also will secure payment of these amounts. Such right
shall be in addition to all other rights and remedies to which Lender may be
entitled upon Default.
REINSTATEMENT OF SECURITY INTEREST. If payment is made by Grantor, whether
voluntary or otherwise, or by guarantor or by any third party, on the
Indebtedness and thereafter Lender is forced to remit the amount of that payment
(A) to Grantor's trustee in bankruptcy or to any similar person under any
federal or state bankruptcy law or law for the relief of debtors, (B) by reason
of any judgment, decree or order of any court or administrative body having
jurisdiction over Lender or any of Lender's property, or (C) by reason of any
settlement or compromise of any claim made by Lender with any claimant
(including without limitation Grantor), the Indebtedness shall be considered
unpaid for the purpose of enforcement of this Agreement and this Agreement shall
continue to be effective or shall be reinstated, as the case may be,
notwithstanding any cancellation of this Agreement or of any note or other
instrument or agreement evidencing the Indebtedness and the Collateral will
continue to secure the amount repaid or recovered to the same extent as if that
amount never had been originally received by Lender, and Grantor shall be bound
by any judgment, decree, order, settlement or compromise relating to the
Indebtedness or to this Agreement.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
PAYMENT DEFAULT. Grantor fails to make any payment when due under the
Indebtedness.
OTHER DEFAULTS. Grantor fails to comply with or to perform any other term,
obligation, covenant or condition contained in this Agreement or in any of
the Related Documents or to comply with or to perform any term, obligation,
covenant or condition contained in any other agreement between Lender and
Grantor.
DEFAULT IN FAVOR OF THIRD PARTIES. Should Borrower or any Grantor default
under any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or person
that may materially affect any of Grantor's property or Grantor's or any
Grantor's ability to repay the Indebtedness or perform their respective
obligations under this Agreement or any of the Related Documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Grantor or on Grantor's behalf under this Agreement
or the Related Documents is false or misleading in any material respect,
either now or at the time made or furnished or becomes false or misleading
at any time thereafter.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related Documents
ceases to be in full force and effect (including failure of any collateral
document to create a valid and perfected security interest or lien) at any
time and for any reason.
INSOLVENCY. The dissolution or termination of Grantor's existence as a
going business, the insolvency of Grantor, the appointment of a receiver
for any part of Grantor's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Grantor.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Grantor or by any
governmental agency against any collateral securing the Indebtedness. This
includes a garnishment of any of Grantor's accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply if
there is a good faith dispute by Grantor as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Grantor gives Lender written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate reserve
or bond for the dispute.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with respect
to any Guarantor of any of the Indebtedness or Guarantor dies or becomes
incompetent or revokes or disputes the validity of, or liability under, any
Guaranty of the Indebtedness.
ADVERSE CHANGE. A material adverse change occurs in Grantor's financial
condition, or Lender believes the prospect of payment or performance of the
Indebtedness is impaired.
INSECURITY. Lender in good faith believes itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this
Agreement, at any time thereafter, Lender shall have all the rights of a secured
party under the
Illinois Uniform Commercial Code. In addition and without
limitation, Lender may exercise any one or more of the following
COMMERCIAL SECURITY AGREEMENT
(Continued) Page 4
rights and remedies:
ACCELERATE INDEBTEDNESS. Lender may declare the entire Indebtedness,
including any prepayment penalty which Grantor would be required to pay,
immediately due and payable, without notice of any kind to Grantor.
ASSEMBLE COLLATERAL. Lender may require Grantor to deliver to Lender all or
any portion of the Collateral and any and all certificates of title and
other documents relating to the Collateral. Lender may require Grantor to
assemble the Collateral and make it available to Lender at a place to be
designated by Lender. Lender also shall have full power to enter upon the
property of Grantor to take possession of and remove the Collateral. If the
Collateral contains other goods not covered by this Agreement at the time
of repossession, Grantor agrees Lender may take such other goods, provided
that Lender makes reasonable efforts to return them to Grantor after
repossession.
SELL THE COLLATERAL. Lender shall have full power to sell, lease, transfer,
or otherwise deal with the Collateral or proceeds thereof in Lender's own
name or that of Grantor. Lender may sell the Collateral at public auction
or private sale. Unless the Collateral threatens to decline speedily in
value or is of a type customarily sold on a recognized market, Lender will
give Grantor, and other persons as required by law, reasonable notice of
the time and place of any public sale, or the time after which any private
sale or any other disposition of the Collateral is to be made. However, no
notice need be provided to any person who, after Event of Default occurs,
enters into and authenticates an agreement waiving that person's right to
notification of sale. The requirements of reasonable notice shall be met if
such notice is given at least ten (10) days before the time of the sale or
disposition. All expenses relating to the disposition of the Collateral,
including without limitation the expenses of retaking, holding, insuring,
preparing for sale and selling the Collateral, shall become a part of the
Indebtedness secured by this Agreement and shall be payable on demand, with
interest at the Note rate from date of expenditure until repaid.
MORTGAGEE IN POSSESSION. Lender shall have the right to be placed as
mortgagee in possession or to have a receiver appointed to take possession
of all or any part of the Collateral, with the power to protect and
preserve the Collateral, to operate the Collateral preceding foreclosure or
sale, and to collect the Rents from the Collateral and apply the proceeds,
over and above the cost of the receivership, against the Indebtedness. The
mortgagee in possession or receiver may serve without bond if permitted by
law. Lender's right to the appointment of a receiver shall exist whether or
not the apparent value of the Collateral exceeds the Indebtedness by a
substantial amount. Employment by Lender shall not disqualify a person from
serving as a receiver.
COLLECT REVENUES, APPLY ACCOUNTS. Lender, either itself or through a
receiver, may collect the payments, rents, income, and revenues from the
Collateral. Lender may at any time in Lender's discretion transfer any
Collateral into Lender's own name or that of Lender's nominee and receive
the payments, rents, income, and revenues therefrom and hold the same as
security for the Indebtedness or apply it to payment of the Indebtedness in
such order of preference as Lender may determine. Insofar as the Collateral
consists of accounts, general intangibles, insurance policies, instruments,
chattel paper, choses in action, or similar property, Lender may demand,
collect, receipt for, settle, compromise, adjust, xxx for, foreclose, or
realize on the Collateral as Lender may determine, whether or not
Indebtedness or Collateral is then due. For these purposes, Lender may, on
behalf of and in the name of Grantor, receive, open and dispose of mail
addressed to Grantor; change any address to which mail and payments are to
be sent; and endorse notes, checks, drafts, money orders, documents of
title, instruments and items pertaining to payment, shipment, or storage of
any Collateral. To facilitate collection, Lender may notify account debtors
and obligors on any Collateral to make payments directly to Lender.
OBTAIN DEFICIENCY. If Lender chooses to sell any or all of the Collateral,
Lender may obtain a judgment against Grantor for any deficiency remaining
on the Indebtedness due to Lender after application of all amounts received
from the exercise of the rights provided in this Agreement. Grantor shall
be liable for a deficiency even if the transaction described in this
subsection is a sale of accounts or chattel paper.
OTHER RIGHTS AND REMEDIES. Lender shall have all the rights and remedies of
a secured creditor under the provisions of the Uniform Commercial Code, as
may be amended from time to time. In addition, Lender shall have and may
exercise any or all other rights and remedies it may have available at law,
in equity, or otherwise.
ELECTION OF REMEDIES. Except as may be prohibited by applicable law, all of
Lender's rights and remedies, whether evidenced by this Agreement, the
Related Documents, or by any other writing, shall be cumulative and may be
exercised singularly or concurrently. Election by Lender to pursue any
remedy shall not exclude pursuit of any other remedy, and an election to
make expenditures or to take action to perform an obligation of Grantor
under this Agreement, after Grantor's failure to perform, shall not affect
Lender's right to declare a default and exercise its remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Agreement. No alteration of or amendment to this
Agreement shall be effective unless given in writing and signed by the
party or parties sought to be charged or bound by the alteration or
amendment.
ATTORNEYS' FEES; EXPENSES. Grantor agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may hire or pay someone else to help enforce this
Agreement, and Grantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's attorneys' fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and
legal expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. Grantor also shall pay all court costs
and such additional fees as may be directed by the court.
CAPTION HEADINGS. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Agreement.
GOVERNING LAW. This Agreement will be governed by, construed and enforced
in accordance with federal law and the laws of the State of Illinois. This
Agreement has been accepted by Lender in the State of Illinois.
CHOICE OF VENUE. If there is a lawsuit, Grantor agrees upon Lender's
request to submit to the jurisdiction of the courts of DU PAGE County,
State of Illinois.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any rights
under this Agreement unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Agreement shall not prejudice or constitute a
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Agreement. No prior waiver by
Lender, nor any course of dealing between Lender and Grantor, shall
constitute a waiver of any of Lender's rights or of any of Grantor's
obligations as to any future transactions. Whenever the consent of Lender
is required under this Agreement, the granting of such consent by Lender in
any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may
be granted or withheld in the sole discretion of Lender.
NOTICES. Any notice required to be given under this Agreement shall be
given in writing, and shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law), when
deposited with a nationally recognized overnight courier, or, if mailed,
COMMERCIAL SECURITY AGREEMENT
(Continued) Page 5
when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near the
beginning of this Agreement. Any party may change its address for notices
under this Agreement by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party's address.
For notice purposes, Grantor agrees to keep Lender informed at all times of
Grantor's current address. Unless otherwise provided or required by law, if
there is more than one Grantor, any notice given by Lender to any Grantor
is deemed to be notice given to all Grantors.
POWER OF ATTORNEY. Grantor hereby appoints Lender as Grantor's irrevocable
attorney-in-fact for the purpose of executing any documents necessary to
perfect, amend, or to continue the security interest granted in this
Agreement or to demand termination of filings of other secured parties.
Lender may at any time, and without further authorization from Grantor,
file a carbon, photographic or other reproduction of any financing
statement or of this Agreement for use as a financing statement. Grantor
will reimburse Lender for all expenses for the perfection and the
continuation of the perfection of Lender's security interest in the
Collateral.
SEVERABILITY. If a court of competent jurisdiction finds any provision of
this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal,
invalid, or unenforceable as to any other circumstance. If feasible, the
offending provision shall be considered modified so that it becomes legal,
valid and enforceable. If the offending provision cannot be so modified, it
shall be considered deleted from this Agreement. Unless otherwise required
by law, the illegality, invalidity, or unenforceability of any provision of
this Agreement shall not affect the legality, validity or enforceability of
any other provision of this Agreement.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this Agreement
on transfer of Grantor's interest, this Agreement shall be binding upon and
inure to the benefit of the parties, their successors and assigns. If
ownership of the Collateral becomes vested in a person other than Grantor,
Lender, without notice to Grantor, may deal with Grantor's successors with
reference to this Agreement and the Indebtedness by way of forbearance or
extension without releasing Grantor from the obligations of this Agreement
or liability under the Indebtedness.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations,
warranties, and agreements made by Grantor in this Agreement shall survive
the execution and delivery of this Agreement, shall be continuing in
nature, and shall remain in full force and effect until such time as
Grantor's Indebtedness shall be paid in full.
TIME IS OF THE ESSENCE. Time is of the essence in the performance of this
Agreement.
WAIVE JURY. All parties to this Agreement hereby waive the right to any
jury trial in any action, proceeding, or counterclaim brought by any party
against any other party.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code:
AGREEMENT. The word "Agreement" means this Commercial Security Agreement,
as this Commercial Security Agreement may be amended or modified from time
to time, together with all exhibits and schedules attached to this
Commercial Security Agreement from time to time.
BORROWER. The word "Borrower" means Advanced Life Sciences, Inc. and
includes all co-signers and co-makers signing the Note.
COLLATERAL. The word "Collateral" means all of Grantor's right, title and
interest in and to all the Collateral as described in the Collateral
Description section of this Agreement.
DEFAULT. The word "Default" means the Default set forth in this Agreement
in the section titled "Default".
ENVIRONMENTAL LAWS. The words "Environmental Laws" mean any and all state,
federal and local statutes, regulations and ordinances relating to the
protection of human health or the environment, including without
limitation the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq.
("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub.
L. No. 99-499 ("XXXX"), the Hazardous Materials Transportation Act, 49
U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act,
42 U.S.C. Section 6901, et seq., or other applicable state or federal laws,
rules, or regulations adopted pursuant thereto.
EVENT OF DEFAULT. The words "Event of Default" mean any of the events of
default set forth in this Agreement in the default section of this
Agreement.
GRANTOR. The word "Grantor" means Advanced Life Sciences, Inc..
GUARANTOR. The word "Guarantor" means any guarantor, surety, or
accommodation party of any or all of the Indebtedness.
GUARANTY. The word "Guaranty" means the guaranty from Guarantor to Lender,
including without limitation a guaranty of all or part of the Note.
HAZARDOUS SUBSTANCES. The words "Hazardous Substances" mean materials that,
because of their quantity, concentration or physical, chemical or
infectious characteristics, may cause or pose a present or potential hazard
to human health or the environment when improperly used, treated, stored,
disposed of, generated, manufactured, transported or otherwise handled. The
words "Hazardous Substances" are used in their very broadest sense and
include without limitation any and all hazardous or toxic substances,
materials or waste as defined by or listed under the Environmental Laws.
The term "Hazardous Substances" also includes, without limitation,
petroleum and petroleum by-products or any fraction thereof and asbestos.
INDEBTEDNESS. The word "Indebtedness" means the indebtedness evidenced by
the Note or Related Documents, including all principal and interest
together with all other indebtedness and costs and expenses for which
Grantor is responsible under this Agreement or under any of the Related
Documents.
LENDER. The word "Lender" means THE LEADERS BANK, its successors and
assigns.
NOTE. The word "Note" means the Note executed by Advanced Life Sciences,
Inc. in the principal amount of $3,000,000.00 dated December 21, 2004,
together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the note or
credit agreement.
PROPERTY. The word "Property" means all of Grantor's right, title and
interest in and to all the Property as described in the "Collateral
Description" section of this Agreement.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.
RENTS. The word "Rents" means all present and future rents, revenues,
income, issues, royalties, profits, and other benefits derived from the
Property.
GRANTOR HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL SECURITY
AGREEMENT AND AGREES TO ITS
COMMERCIAL SECURITY AGREEMENT
(Continued) Page 6
TERMS. THIS AGREEMENT IS DATED DECEMBER 21, 2004.
GRANTOR:
ADVANCED LIFE SCIENCES, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Xxxx X. Xxxxxx, President of Advanced Life
Sciences, Inc.
LENDER:
THE LEADERS BANK
X /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Authorized Signer
[ILLEGIBLE]
RECORDATION REQUESTED BY:
THE LEADERS BANK
0000 XXXX XXXX, XXXXX 000
XXX XXXXX, XX 00000
WHEN RECORDED MAIL TO:
THE LEADERS BANK
0000 XXXX XXXX, XXXXX 000
XXX XXXXX, XX 00000
FOR RECORDER'S USE ONLY
This Mortgage prepared by:
THE LEADERS BANK
0000 XXXX XXXX, XXXXX 000
XXX XXXXX, XX 00000
MORTGAGE
MAXIMUM LIEN. At no time shall the principal amount of Indebtedness secured by
the Mortgage, not including sums advanced to protect the security of the
Mortgage, exceed $3,000,000.00.
THIS MORTGAGE dated December 21, 2004, is made and executed between BioStart
Property Group, LLC, a Delaware Limited Liability Company (referred to below as
"Grantor") and THE LEADERS BANK, whose address is 0000 XXXX XXXX, XXXXX 000, XXX
XXXXX, XX 00000 (referred to below as "LENDER").
GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages, warrants, and
conveys to Lender all of Grantor's right, title, and interest in and to the
following described real property, together with all existing or subsequently
erected or affixed buildings, improvements and fixtures; all easements, rights
of way, and appurtenances; all water, water rights, watercourses and ditch
rights (including stock in utilities with ditch or irrigation rights); and all
other rights, royalties, and profits relating to the real property, including
without limitation all minerals, oil, gas, geothermal and similar matters, (the
"Real Property") located in DuPage County, State of Illinois:
XXX 0 XX XXXXXXXXXXXXXX XXXXXX XXXX 00, BEING A SUBDIVISION OF PART OF
NORTHEAST 1/4 SECTION 18, TOWNSHIP 37 NORTH, RANGE 11 EAST OF THE THIRD
PRINCIPAL MERIDIAN, SITUATED IN THE VILLAGE OF WOODRIDGE, DUPAGE COUNTY,
STATE OF ILLINOIS, ACCORDING TO THE PLAT THEREOF RCORDED MARCH 5, 2001 AS
DOCUMENT R2001-035706
The Real Property or its address is commonly known as 0000 Xxxxx Xxxxx,
Xxxxxxxxx, XX 00000. The Real Property tax identification number is
00-00-000-000
Grantor presently assigns to Lender all of Grantor's right, title, and interest
in and to all present and future leases of the Property and all Rents from the
Property. In addition, Grantor grants to Lender a Uniform Commercial Code
security interest in the Personal Property and Rents.
THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN
THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE
INDEBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE, THE
RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE IS INTENDED TO AND SHALL BE
VALID AND HAVE PRIORITY OVER ALL SUBSEQUENT LIENS AND ENCUMBRANCES, INCLUDING
STATUTORY LIENS, EXCEPTING SOLELY TAXES AND ASSESSMENTS LEVIED ON THE REAL
PROPERTY, TO THE EXTENT OF THE MAXIMUM
MORTGAGE
(Continued) Page 2
AMOUNT SECURED HEREBY. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING
TERMS:
GRANTOR'S WAIVERS. Grantor waives all rights or defenses arising by reason of
any "one action" or "anti-deficiency" law, or any other law which may prevent
Lender from bringing any action against Grantor, including a claim for
deficiency to the extent Lender is otherwise entitled to a claim for deficiency,
before or after Lender's commencement or completion of any foreclosure action,
either judicially or by exercise of a power of sale.
GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (a) this
Mortgage is executed at Borrower's request and not at the request of Lender; (b)
Grantor has the full power, right, and authority to enter into this Mortgage and
to hypothecate the Property; (c) the provisions of this Mortgage do not conflict
with, or result in a default under any agreement or other instrument binding
upon Grantor and do not result in a violation of any law, regulation, court
decree or order applicable to Grantor; (d) Grantor has established adequate
means of obtaining from Borrower on a continuing basis information about
Borrower's financial condition; and (e) Lender has made no representation to
Grantor about Borrower (including without limitation the creditworthiness of
Borrower).
PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Borrower
shall pay to Lender all Indebtedness secured by this Mortgage as it becomes due,
and Borrower and Grantor shall strictly perform all Borrower's and Grantor's
obligations under this Mortgage.
POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower and Grantor agree that
Borrower's and Grantor's possession and use of the Property shall be governed by
the following provisions:
POSSESSION AND USE. Until the occurrence of an Event of Default, Grantor
may (1) remain in possession and control of the Property; (2) use, operate
or manage the Property; and (3) collect the Rents from the Property.
DUTY TO MAINTAIN. Grantor shall maintain the Property in tenantable
condition and promptly perform all repairs, replacements, and maintenance
necessary to preserve its value.
COMPLIANCE WITH ENVIRONMENTAL LAWS. Grantor represents and warrants to
Lender that: (1) During the period of Grantor's ownership of the Property,
there has been no use, generation, manufacture, storage, treatment,
disposal, release or threatened release of any Hazardous Substance by any
person on, under, about or from the Property; (2) Grantor has no knowledge
of, or reason to believe that there has been, except as previously
disclosed to and acknowledged by Lender in writing, (a) any breach or
violation of any Environmental Laws, (b) any use, generation, manufacture,
storage, treatment, disposal, release or threatened release of any
Hazardous Substance on, under, about or from the Property by any prior
owners or occupants of the Property, or (c) any actual or threatened
litigation or claims of any kind by any person relating to such matters;
and (3) Except as previously disclosed to and acknowledged by Lender in
writing, (a) neither Grantor nor any tenant, contractor, agent or other
authorized user of the Property shall use, generate, manufacture, store,
treat, dispose of or release any Hazardous Substance on, under, about or
from the Property; and (b) any such activity shall be conducted in
compliance with all applicable federal, state, and local laws, regulations
and ordinances, including without limitation all Environmental Laws.
Grantor authorizes Lender and its agents to enter upon the Property to make
such inspections and tests, at Grantor's expense, as Lender may deem
appropriate to determine compliance of the Property with this section of
the Mortgage. Any inspections or tests made by Lender shall be for Lender's
purposes only and shall not be construed to create any responsibility or
liability on the part of Lender to Grantor or to any other person. The
representations and warranties contained herein are based on Grantor's due
diligence in investigating the Property for Hazardous Substances. Grantor
hereby (1) releases and waives any future claims against Lender for
indemnity or contribution in the event Grantor becomes liable for cleanup
or other costs under any such laws; and (2) agrees to indemnify and hold
harmless Lender against any and all claims, losses, liabilities, damages,
penalties, and expenses which Lender may directly or indirectly sustain or
suffer resulting from a breach of this section of the Mortgage or as a
consequence of any use, generation, manufacture, storage, disposal, release
or threatened release occurring prior to Grantor's ownership or interest in
the Property, whether or not the same was or should have been known to
Grantor. The provisions
MORTGAGE
(Continued) Page 3
of this section of the Mortgage, including the obligation to indemnify,
shall survive the payment of the Indebtedness and the satisfaction and
reconveyance of the lien of this Mortgage and shall not be affected by
Lender's acquisition of any interest in the Property, whether by
foreclosure or otherwise.
NUISANCE, WASTE. Grantor shall not cause, conduct or permit any nuisance
nor commit, permit, or suffer any stripping of or waste on or to the
Property or any portion of the Property. Without limiting the generality of
the foregoing, Grantor will not remove, or grant to any other party the
right to remove, any timber, minerals (including oil and gas), coal, clay,
scoria, soil, gravel or rock products without Lender's prior written
consent.
REMOVAL OF IMPROVEMENTS. Grantor shall not demolish or remove any
improvements from the Real Property without Lender's prior written consent.
As a condition to the removal of any Improvements, Lender may require
Grantor to make arrangements satisfactory to Lender to replace such
Improvements with Improvements of at least equal value.
LENDER'S RIGHT TO ENTER. Lender and Lender's agents and representatives may
enter upon the Real Property at all reasonable times to attend to Lender's
interests and to inspect the Real Property for purposes of Grantor's
compliance with the terms and conditions of this Mortgage.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Grantor shall promptly comply
with all laws, ordinances, and regulations, now or hereafter in effect, of
all governmental authorities applicable to the use or occupancy of the
Property, including without limitation, the Americans With Disabilities
Act. Grantor may contest in good faith any such law, ordinance, or
regulation and withhold compliance during any proceeding, including
appropriate appeals, so long as Grantor has notified Lender in writing
prior to doing so and so long as, in Lender's sole opinion, Lender's
interests in the Property are not jeopardized. Lender may require Grantor
to post adequate security or a surety bond, reasonably satisfactory to
Lender, to protect Lender's interest.
DUTY TO PROTECT. Grantor agrees neither to abandon or leave unattended the
Property. Grantor shall do all other acts, in addition to those acts set
forth above in this section, which from the character and use of the
Property are reasonably necessary to protect and preserve the Property.
DUE ON SALE - CONSENT BY LENDER. Lender may, at Lender's option, declare
immediately due and payable all sums secured by this Mortgage upon the sale or
transfer, without Lender's prior written consent, of all or any part of the Real
Property, or any interest in the Real Property. A "sale or transfer" means the
conveyance of Real Property or any right, title or interest in the Real
Property; whether legal, beneficial or equitable; whether voluntary or
involuntary; whether by outright sale, deed, installment sale contract, land
contract, contract for deed, leasehold interest with a term greater than three
(3) years, lease-option contract, or by sale, assignment, or transfer of any
beneficial interest in or to any land trust holding title to the Real Property,
or by any other method of conveyance of an interest in the Real Property. If any
Grantor is a corporation, partnership or limited liability company, transfer
also includes any change in ownership of more than twenty-five percent (25%) of
the voting stock, partnership interests or limited liability company interests,
as the case may be, of such Grantor. However, this option shall not be exercised
by Lender if such exercise is prohibited by federal law or by Illinois law.
TAXES AND LIENS. The following provisions relating to the taxes and liens on the
Property are part of this Mortgage:
PAYMENT. Grantor shall pay when due (and in all events prior to
delinquency) all taxes, payroll taxes, special taxes, assessments, water
charges and sewer service charges levied against or on account of the
Property, and shall pay when due all claims for work done on or for
services rendered or material furnished to the Property. Grantor shall
maintain the Property free of any liens having priority over or equal to
the interest of Lender under this Mortgage, except for the Existing
Indebtedness referred to in this Mortgage or those liens specifically
agreed to in writing by Lender, and except for the lien of taxes and
assessments not due as further specified in the Right to Contest paragraph.
RIGHT TO CONTEST. Grantor may withhold payment of any tax, assessment, or
claim in connection with a good faith dispute over the obligation to pay,
so long as Lender's interest in the Property is not jeopardized. If a lien
arises or is filed as a result of nonpayment, Grantor shall within fifteen
(15) days after the lien arises or, if
MORTGAGE
(Continued) Page 4
a lien is filed, within fifteen (15) days after Grantor has notice of the
filing, secure the discharge of the lien, or if requested by Lender,
deposit with Lender cash or a sufficient corporate surety bond or other
security satisfactory to Lender in an amount sufficient to discharge the
lien plus any costs and attorneys' fees, or other charges that could accrue
as a result of a foreclosure or sale under the lien. In any contest,
Grantor shall defend itself and Lender and shall satisfy any adverse
judgment before enforcement against the Property. Grantor shall name Lender
as an additional obligee under any surety bond furnished in the contest
proceedings.
EVIDENCE OF PAYMENT. Grantor shall upon demand furnish to Lender
satisfactory evidence of payment of the taxes or assessments and shall
authorize the appropriate governmental official to deliver to Lender at any
time a written statement of the taxes and assessments against the Property.
NOTICE OF CONSTRUCTION. Grantor shall notify Lender at least fifteen (15)
days before any work is commenced, any services are furnished, or any
materials are supplied to the Property, if any mechanic's lien,
materialmen's lien, or other lien could be asserted on account of the work,
services, or materials. Grantor will upon request of Lender furnish to
Lender advance assurances satisfactory to Lender that Grantor can and will
pay the cost of such improvements.
PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the
Property are a part of this Mortgage:
MAINTENANCE OF INSURANCE. Grantor shall procure and maintain policies of
fire insurance with standard extended coverage endorsements on a
replacement basis for the full insurable value covering all Improvements on
the Real Property in an amount sufficient to avoid application of any
coinsurance clause, and with a standard mortgagee clause in favor of
Lender. Grantor shall also procure and maintain comprehensive general
liability insurance in such coverage amounts as Lender may request with
Lender being named as additional insureds in such liability insurance
policies. Additionally, Grantor shall maintain such other insurance,
including but not limited to hazard, business interruption and boiler
insurance as Lender may require. Policies shall be written by such
insurance companies and in such form as may be reasonably acceptable to
Lender. Grantor shall deliver to Lender certificates of coverage from each
insurer containing a stipulation that coverage will not be cancelled or
diminished without a minimum of thirty (30) days' prior written notice to
Lender and not containing any disclaimer of the insurer's liability for
failure to give such notice. Each insurance policy also shall include an
endorsement providing that coverage in favor of Lender will not be impaired
in any way by any act, omission or default of Grantor or any other person.
Should the Real Property be located in an area designated by the Director
of the Federal Emergency Management Agency as a special flood hazard area,
Grantor agrees to obtain and maintain Federal Flood Insurance, if
available, within 45 days after notice is given by Lender that the Property
is located in a special flood hazard area, for the full unpaid principal
balance of the loan and any prior liens on the property securing the loan,
up to the maximum policy limits set under the National Flood Insurance
Program, or as otherwise required by Lender, and to maintain such insurance
for the term of the loan.
APPLICATION OF PROCEEDS. Grantor shall promptly notify Lender of any loss
or damage to the Property. Lender may make proof of loss if Grantor fails
to do so within fifteen (15) days of the casualty. Whether or not Lender's
security is impaired, Lender may, at Lender's election, receive and retain
the proceeds of any insurance and apply the proceeds to the reduction of
the Indebtedness, payment of any lien affecting the Property, or the
restoration and repair of the Property. If Lender elects to apply the
proceeds to restoration and repair, Grantor shall repair or replace the
damaged or destroyed Improvements in a manner satisfactory to Lender.
Lender shall, upon satisfactory proof of such expenditure, pay or reimburse
Grantor from the proceeds for the reasonable cost of repair or restoration
if Grantor is not in default under this Mortgage. Any proceeds which have
not been disbursed within 180 days after their receipt and which Lender has
not committed to the repair or restoration of the Property shall be used
first to pay any amount owing to Lender under this Mortgage, then to pay
accrued interest, and the remainder, if any, shall be applied to the
principal balance of the Indebtedness. If Lender holds any proceeds after
payment in full of the Indebtedness, such proceeds shall be paid to Grantor
as Grantor's interests may appear.
COMPLIANCE WITH EXISTING INDEBTEDNESS. During the period in which any
Existing Indebtedness described
MORTGAGE
(Continued) Page 5
below is in effect, compliance with the insurance provisions contained in
the instrument evidencing such Existing Indebtedness shall constitute
compliance with the insurance provisions under this Mortgage, to the extent
compliance with the terms of this Mortgage would constitute a duplication
of insurance requirement. If any proceeds from the insurance become payable
on loss, the provisions in this Mortgage for division of proceeds shall
apply only to that portion of the proceeds not payable to the holder of the
Existing Indebtedness.
GRANTOR'S REPORT ON INSURANCE. Upon request of Lender, however not more
than once a year, Grantor shall furnish to Lender a report on each existing
policy of insurance showing: (1) the name of the insurer; (2) the risks
insured; (3) the amount of the policy; (4) the property insured, the then
current replacement value of such property, and the manner of determining
that value; and (5) the expiration date of the policy. Grantor shall, upon
request of Lender, have an independent appraiser satisfactory to Lender
determine the cash value replacement cost of the Property.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Property or if Grantor fails to
comply with any provision of this Mortgage or any Related Documents, including
but not limited to Grantor's failure to comply with any obligation to maintain
Existing Indebtedness in good standing as required below, or to discharge or pay
when due any amounts Grantor is required to discharge or pay under this Mortgage
or any Related Documents, Lender on Grantor's behalf may (but shall not be
obligated to) take any action that Lender deems appropriate, including but not
limited to discharging or paying all taxes, liens, security interests,
encumbrances and other claims, at any time levied or placed on the Property and
paying all costs for insuring, maintaining and preserving the Property. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Grantor. All such expenses will become a part
of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B)
be added to the balance of the Note and be apportioned among and be payable with
any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity. The Mortgage also will secure payment of these amounts. Such right
shall be in addition to all other rights and remedies to which Lender may be
entitled upon Default.
WARRANT; DEFENSE OF TITLE. The following provisions relating to ownership of the
Property are a part of this Mortgage:
TITLE. Grantor warrants that: (a) Grantor holds good and marketable title
of record to the Property in fee simple, free and clear of all liens and
encumbrances other than those set forth in the Real Property description or
in the Existing Indebtedness section below or in any title insurance
policy, title report, or final title opinion issued in favor of, and
accepted by, Lender in connection with this Mortgage, and (b) Grantor has
the full right, power, and authority to execute and deliver this Mortgage
to Lender.
DEFENSE OF TITLE. Subject to the exception in the paragraph above, Grantor
warrants and will forever defend the title to the Property against the
lawful claims of all persons. In the event any action or proceeding is
commenced that questions Grantor's title or the interest of Lender under
this Mortgage, Grantor shall defend the action at Grantor's expense.
Grantor may be the nominal party in such proceeding, but Lender shall be
entitled to participate in the proceeding and to be represented in the
proceeding by counsel of Lender's own choice, and Grantor will deliver, or
cause to be delivered, to Lender such instruments as Lender may request
from time to time to permit such participation.
COMPLIANCE WITH LAWS. Grantor warrants that the Property and Grantor's use
of the Property complies with all existing applicable laws, ordinances, and
regulations of governmental authorities.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations,
warranties, and agreements made by Grantor in this Mortgage shall survive
the execution and delivery of this Mortgage, shall be continuing in nature,
and shall remain in full force and effect until such time as Borrower's
Indebtedness shall be paid in full.
EXISTING INDEBTEDNESS. The following provisions concerning Existing Indebtedness
are a part of this
MORTGAGE
(Continued) Page 6
Mortgage:
EXISTING LIEN. The lien of this Mortgage securing the Indebtedness may be
secondary and inferior to the lien securing payment of an existing
obligation to The Leaders Bank. The existing obligation has a current
principal balance of approximately $1,670,795.15 and is in the original
principal amount of $1,696,111.09. Grantor expressly covenants and agrees
to pay, or see to the payment of, the Existing Indebtedness and to prevent
any default on such indebtedness, any default under the instruments
evidencing such indebtedness, or any default under any security documents
for such indebtedness.
NO MODIFICATION. Grantor shall not enter into any agreement with the holder
of any mortgage, deed of trust, or other security agreement which has
priority over this Mortgage by which that agreement is modified, amended,
extended, or renewed without the prior written consent of Lender. Grantor
shall neither request nor accept any future advances under any such
security agreement without the prior written consent of Lender.
CONDEMNATION. The following provisions relating to condemnation proceedings are
a part of this Mortgage:
PROCEEDINGS. If any proceeding in condemnation is filed, Grantor shall
promptly notify Lender in writing, and Grantor shall promptly take such
steps as may be necessary to defend the action and obtain the award.
Grantor may be the nominal party in such proceeding, but Lender shall be
entitled to participate in the proceeding and to be represented in the
proceeding by counsel of its own choice, and Grantor will deliver or cause
to be delivered to Lender such instruments and documentation as may be
requested by Lender from time to time to permit such participation.
APPLICATION OF NET PROCEEDS. If all or any part of the Property is
condemned by eminent domain proceedings or by any proceeding or purchase in
lieu of condemnation, Lender may at its election require that all or any
portion of the net proceeds of the award be applied to the Indebtedness or
the repair or restoration of the Property. The net proceeds of the award
shall mean the award after payment of all reasonable costs, expenses, and
attorneys' fees incurred by Lender in connection with the condemnation.
IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following
provisions relating to governmental taxes, fees and charges are a part of this
Mortgage:
CURRENT TAXES, FEES AND CHARGES. Upon request by Lender, Grantor shall
execute such documents in addition to this Mortgage and take whatever other
action is requested by Lender to perfect and continue Lender's lien on the
Real Property. Grantor shall reimburse Lender for all taxes, as described
below, together with all expenses incurred in recording, perfecting or
continuing this Mortgage, including without limitation all taxes, fees,
documentary stamps, and other charges for recording or registering this
Mortgage.
TAXES. The following shall constitute taxes to which this section applies:
(1) a specific tax upon this type of Mortgage or upon all or any part of
the Indebtedness secured by this Mortgage; (2) a specific tax on Borrower
which Borrower is authorized or required to deduct from payments on the
Indebtedness secured by this type of Mortgage; (3) a tax on this type of
Mortgage chargeable against the Lender or the holder of the Note; and (4) a
specific tax on all or any portion of the Indebtedness or on payments of
principal and interest made by Borrower.
SUBSEQUENT TAXES. If any tax to which this section applies is enacted
subsequent to the date of this Mortgage, this event shall have the same
effect as an Event of Default, and Lender may exercise any or all of its
available remedies for an Event of Default as provided below unless Grantor
either (1) pays the tax before it becomes delinquent, or (2) contests the
tax as provided above in the Taxes and Liens section and deposits with
Lender cash or a sufficient corporate surety bond or other security
satisfactory to Lender.
SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to
this Mortgage as a security agreement are a part of this Mortgage:
SECURITY AGREEMENT. This instrument shall constitute a Security Agreement
to the extent any of the Property constitutes fixtures, and Lender shall
have all of the rights of a secured party under the Uniform Commercial Code
as amended from time to time.
MORTGAGE
(Continued) Page 7
SECURITY INTEREST. Upon request by Lender, Grantor shall take whatever
action is requested by Lender to perfect and continue Lender's security
interest in the Rents and Personal Property, in addition to recording this
Mortgage in the real property records, Lender may, at any time and without
further authorization from Grantor, file executed counterparts, copies or
reproductions of this Mortgage as a financing statement. Grantor shall
reimburse Lender for all expenses incurred in perfecting or continuing this
security interest. Upon default, Grantor shall not remove, sever or detach
the Personal Property from the Property. Upon default, Grantor shall
assemble any Personal Property not affixed to the Property in a manner and
at a place reasonably convenient to Grantor and Lender and make it
available to Lender within three (3) days after receipt of written demand
from Lender to the extent permitted by applicable law.
ADDRESSES. The mailing addresses of Grantor (debtor) and Lender (secured
party) from which information concerning the security interest granted by
this Mortgage may be obtained (each as required by the Uniform Commercial
Code) are as stated on the first page of this Mortgage.
FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to
further assurances and attorney-in-fact are a part of this Mortgage:
FURTHER ASSURANCES. At any time, and from time to time, upon request of
Lender, Grantor will make, execute and deliver, or will cause to be made,
executed or delivered, to Lender or to Lender's designee, and when
requested by Lender, cause to be filed, recorded, refiled, or rerecorded,
as the case may be, at such times and in such offices and places as Lender
may deem appropriate, any and all such mortgages, deeds of trust, security
deeds, security agreements, financing statements, continuation statements,
instruments of further assurance, certificates, and other documents as may,
in the sole opinion of Lender, be necessary or desirable in order to
effectuate, complete, perfect, continue, or preserve (1) Borrower's and
Grantor's obligations under the Note, this Mortgage, and the Related
Documents, and (2) the liens and security interests created by this
Mortgage on the Property, whether now owned or hereafter acquired by
Grantor. Unless prohibited by law or Lender agrees to the contrary in
writing, Grantor shall reimburse Lender for all costs and expenses incurred
in connection with the matters referred to in this paragraph.
ATTORNEY-IN-FACT. If Grantor fails to do any of the things referred to in
the preceding paragraph, Lender may do so for and in the name of Grantor
and at Grantor's expense. For such purposes, Grantor hereby irrevocably
appoints Lender as Grantor's attorney-in-fact for the purpose of making,
executing, delivering, filing, recording, and doing all other things as may
be necessary or desirable, in Lender's sole opinion, to accomplish the
matters referred to in the preceding paragraph.
FULL PERFORMANCE. If Borrower pays all the Indebtedness when due, and otherwise
performs all the obligations imposed upon Grantor under this Mortgage, Lender
shall execute and deliver to Grantor a suitable satisfaction of this Mortgage
and suitable statements of termination of any financing statement on file
evidencing Lender's security interest in the Rents and the Personal Property.
Grantor will pay, if permitted by applicable law, any reasonable termination fee
as determined by Lender from time to time.
REINSTATEMENT OF SECURITY INTEREST. If payment is made by Borrower, whether
voluntarily or otherwise, or by guarantor or by any third party, on the
Indebtedness and thereafter Lender is forced to remit the amount of that payment
(A) to Borrower's trustee in bankruptcy or to any similar person under any
federal or state bankruptcy law or law for the relief of debtors, (B) by reason
of any judgment, decree or order of any court or administrative body having
jurisdiction over Lender or any of Lender's property, or (C) by reason of any
settlement or compromise of any claim made by Lender with any claimant
(including without limitation Borrower), the Indebtedness shall be considered
unpaid for the purpose of enforcement of this Mortgage and this Mortgage shall
continue to be effective or shall be reinstated, as the case may be,
notwithstanding any cancellation of this Mortgage or of any note or other
instrument or agreement evidencing the Indebtedness and the Property will
continue to secure the amount repaid or recovered to the same extent as if that
amount never had been originally received by Lender, and Grantor shall be bound
by any judgment, decree, order, settlement or compromise relating to the
Indebtedness or to this Mortgage.
EVENTS OF DEFAULT. Each of the following, at Lender's option, shall constitute
an Event of Default under this Mortgage:
MORTGAGE
(Continued) Page 8
PAYMENT DEFAULT. Borrower fails to make any payment when due under the
Indebtedness.
DEFAULT ON OTHER PAYMENTS. Failure of Grantor within the time required by this
Mortgage to make any payment for taxes or insurance, or any other payment
necessary to prevent filing of or to effect discharge of any lien.
OTHER DEFAULTS. Borrower or Grantor fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Mortgage or in any of
the Related Documents or to comply with or to perform any term, obligation,
covenant or condition contained in any other agreement between Lender and
Borrower or Grantor.
DEFAULT IN FAVOR OF THIRD PARTIES. Should Borrower or any Grantor default under
any loan, extension of credit, security agreement, purchase or sales agreement,
or any other agreement, in favor of any other creditor or person that may
materially affect any of Borrower's or any Grantor's property or Borrower's
ability to repay the Indebtedness or Borrower's or Grantor's ability to perform
their respective obligations under this Mortgage or any related document.
FALSE STATEMENTS. Any warranty, representation or statement made or furnished to
Lender by Borrower or Grantor or on Borrower's or Grantor's behalf under this
Mortgage or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes false or
misleading at any time thereafter.
DEFECTIVE COLLATERALIZATION. This Mortgage or any of the Related Documents
ceases to be in full force and effect (including failure of any collateral
document to create a valid and perfected security interest or lien) at any time
and for any reason.
DEATH OR INSOLVENCY. The dissolution or termination of Borrower's or Grantor's
existence as a going business, the insolvency of Borrower or Grantor, the
appointment of a receiver for any part of Borrower's or Grantor's property, any
assignment for the benefit of creditors, any type of creditor workout, or the
commencement of any proceeding under any bankruptcy or insolvency laws by or
against Borrower or Grantor.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or any
other method, by any creditor of Borrower or Grantor or by any governmental
agency against any property securing the Indebtedness. This includes a
garnishment of any of Borrower's or Grantor's accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply if there
is a good faith dispute by Borrower or Grantor as to the validity or
reasonableness of the claim which is the basis of the creditor or forfeiture
proceeding and if Borrower or Grantor gives Lender written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or a surety
bond for the creditor or forfeiture proceeding, in an amount determined by
Lender, in its sole discretion, as being an adequate reserve or bond for the
dispute.
EXISTING INDEBTEDNESS. The payment of any installment of principal or any
interest on the Existing Indebtedness is not made within the time required by
the promissory note evidencing such indebtedness, or a default occurs under the
instrument securing such indebtedness and is not cured during any applicable
grace period in such instrument, or any suit or other action is commenced to
foreclose any existing lien on the Property.
BREACH OF OTHER AGREEMENT. Any breach by Borrower or Grantor under the terms of
any other agreement between Borrower or Grantor and Lender that is not remedied
within any grace period provided therein, including without limitation any
agreement concerning any indebtedness or other obligation of Borrower or Grantor
to Lender, whether existing now or later.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with respect to
any Guarantor of any of the Indebtedness or any Guarantor dies or becomes
incompetent, or revokes or disputes the validity of, or liability under, any
Guaranty of the Indebtedness.
ADVERSE CHANGE. A material adverse change occurs in Grantor's financial
condition, or Lender believes the
MORTGAGE
(Continued) Page 9
prospect of payment or performance of the indebtedness is impaired.
INSECURITY. Lender in good faith believes itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default and
at any time thereafter, Lender, at Lender's option, may exercise any one or more
of the following rights and remedies, in addition to any other rights or
remedies provided by law:
ACCELERATE INDEBTEDNESS. Lender shall have the right at its option without
notice to Grantor to declare the entire Indebtedness immediately due and
payable, including any prepayment penalty which Grantor would be required
to pay.
UCC REMEDIES. With respect to all or any part of the Personal Property,
Lender shall have all the rights and remedies of a secured party under the
Uniform Commercial Code.
COLLECT RENTS. Lender shall have the right, without notice to Borrower or
Grantor, to take possession of the Property and collect the Rents,
including amounts past due and unpaid, and apply the net proceeds, over and
above Lender's costs, against the Indebtedness. In furtherance of this
right, Lender may require any tenant or other user of the Property to make
payments of rent or use fees directly to Lender. If the Rents are collected
by Lender, then Grantor irrevocably designates Lender as Grantor's
attorney-in-fact to endorse instruments received in payment thereof in the
name of Grantor and to negotiate the same and collect the proceeds.
Payments by tenants or other users to Lender in response to Lender's demand
shall satisfy the obligations for which the payments are made, whether or
not any proper grounds for the demand existed. Lender may exercise its
rights under this subparagraph either in person, by agent, or through a
receiver.
MORTGAGEE IN POSSESSION. Lender shall have the right to be placed as
mortgagee in possession or to have a receiver appointed to take possession
of all or any part of the Property, with the power to protect and
preserve the Property, to operate the Property preceding foreclosure or
sale, and to collect the Rents from the Property and apply the proceeds,
over and above the cost of the receivership, against the Indebtedness. The
mortgagee in possession or receiver may serve without bond if permitted by
law. Lender's right to the appointment of a receiver shall exist whether or
not the apparent value of the Property exceeds the Indebtedness by a
substantial amount. Employment by Lender shall not disqualify a person from
serving as a receiver.
JUDICIAL FORECLOSURE. Lender may obtain a judicial decree foreclosing
Grantor's interest in all or any part of the Property.
DEFICIENCY JUDGMENT. If permitted by applicable law, Lender may obtain a
judgment for any deficiency remaining in the Indebtedness due to Lender
after application of all amounts received from the exercise of the rights
provided in this section.
OTHER REMEDIES. Lender shall have all other rights and remedies provided in
this Mortgage or the Note or available at law or in equity.
SALE OF THE PROPERTY. To the extent permitted by applicable law, Borrower
and Grantor hereby waives any and all right to have the Property
marshalled. In exercising its rights and remedies, Lender shall be free to
sell all or any part of the Property together or separately, in one sale or
by separate sales. Lender shall be entitled to bid at any public sale on
all or any portion of the Property.
NOTICE OF SALE. Lender shall give Grantor reasonable notice of the time and
place of any public sale of the Personal Property or of the time after
which any private sale or other intended disposition of the Personal
Property is to be made. Reasonable notice shall mean notice given at least
ten (10) days before the time of the sale or disposition. Any sale of the
Personal Property may be made in conjunction with any sale of the Real
Property.
ELECTION OF REMEDIES. Election by Lender to pursue any remedy shall not
exclude pursuit of any other remedy, and an election to make expenditures
or to take action to perform an obligation of Grantor under this Mortgage,
after Grantor's failure to perform, shall not affect Lender's right to
declare a default and exercise its remedies. Nothing under this Mortgage or
otherwise shall be construed so as to limit or restrict the rights
MORTGAGE
(Continued) Page 10
and remedies available to Lender following an Event of Default, or in any
way to limit or restrict the rights and ability of Lender to proceed
directly against Grantor and/or Borrower and/or against any other co-maker,
guarantor, surety or endorser and/or to proceed against any other
collateral directly or indirectly securing the Indebtedness.
ATTORNEYS' FEES; EXPENSES. If Lender institutes any suit or action to
enforce any of the terms of this Mortgage, Lender shall be entitled to
recover such sum as the court may adjudge reasonable as attorneys' fees at
trial and upon any appeal. Whether or not any court action is involved, and
to the extent not prohibited by law, all reasonable expenses Lender incurs
that in Lender's opinion are necessary at any time for the protection of
its interest or the enforcement of its rights shall become a part of the
Indebtedness payable on demand and shall bear interest at the Note rate
from the date of the expenditure until repaid. Expenses covered by this
paragraph include, without limitation, however subject to any limits under
applicable law, Lender's attorneys' fees and Lender's legal expenses,
whether or not there is a lawsuit, including attorneys' fees and expenses
for bankruptcy proceedings (including efforts to modify or vacate any
automatic stay or injunction), appeals, and any anticipated post-judgment
collection services, the cost of searching records, obtaining title reports
(including foreclosure reports), surveyors' reports, and appraisal fees and
title insurance, to the extent permitted by applicable law. Grantor also
will pay any court costs, in addition to all other sums provided by law.
NOTICES. Any notice required to be given under this Mortgage, including without
limitation any notice of default and any notice of sale shall be given in
writing, and shall be effective when actually delivered, when actually received
by telefacsimile (unless otherwise required by law), when deposited with a
nationally recognized overnight courier, or, if mailed, when deposited in the
United States mail, as first class, certified or registered mail postage
prepaid, directed to the addresses shown near the beginning of this Mortgage.
All copies of notices of foreclosure from the holder of any lien which has
priority over this Mortgage shall be sent to Lender's address, as shown near the
beginning of this Mortgage. Any party may change its address for notices under
this Mortgage by giving formal written notice to the other parties, specifying
that the purpose of the notice is to change the party's address. For notice
purposes, Grantor agrees to keep Lender informed at all times of Grantor's
current address. Unless otherwise provided or required by law, if there is more
than one Grantor, any notice given by Lender to any Grantor is deemed to be
notice given to all Grantors.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Mortgage:
AMENDMENTS. This Mortgage, together with any Related Documents, constitutes
the entire understanding and agreement of the parties as to the matters set
forth in this Mortgage. No alteration of or amendment to this Mortgage
shall be effective unless given in writing and signed by the party or
parties sought to be charged or bound by the alteration or amendment.
ANNUAL REPORTS. If the Property is used for purposes other than Grantor's
residence, Grantor shall furnish to Lender, upon request, a certified
statement of net operating income received from the Property during
Grantor's previous fiscal year in such form and detail as Lender shall
require. "Net operating income" shall mean all cash receipts from the
Property less all cash expenditures made in connection with the operation
of the Property.
CAPTION HEADINGS. Caption headings in this Mortgage are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Mortgage.
GOVERNING LAW. THIS MORTGAGE WILL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF ILLINOIS. THIS
MORTGAGE HAS BEEN ACCEPTED BY LENDER IN THE STATE OF ILLINOIS.
CHOICE OF VENUE. If there is a lawsuit, Grantor agrees upon Lender's
request to submit to the jurisdiction of the courts of DU PAGE County,
State of Illinois.
JOINT AND SEVERAL LIABILITY. All obligations of Borrower and Grantor under
this Mortgage shall be joint and several, and all references to Grantor
shall mean each and every Grantor, and all references to Borrower shall
mean each and every Borrower. This means that each Borrower and Grantor
signing below is
MORTGAGE
(Continued) Page 11
responsible for all obligations in this Mortgage. Where any one or more of
the parties is a corporation, partnership, limited liability company or
similar entity, it is not necessary for Lender to inquire into the powers
of any of the officers, directors, partners, members, or other agents
acting or purporting to act on the entity's behalf, and any obligations
made or created in reliance upon the professed exercise of such powers
shall be guaranteed under this Mortgage.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any rights
under this Mortgage unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Mortgage shall not prejudice or constitute a
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Mortgage. No prior waiver by
Lender, nor any course of dealing between Lender and Grantor, shall
constitute a waiver of any of Lender's rights or of any of Grantor's
obligations as to any future transactions. Whenever the consent of Lender
is required under this Mortgage, the granting of such consent by Lender in
any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may
be granted or withheld in the sole discretion of Lender.
SEVERABILITY. If a court of competent jurisdiction finds any provision of
this Mortgage to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal,
invalid, or unenforceable as to any other circumstance. If feasible, the
offending provision shall be considered modified so that it becomes legal,
valid and enforceable. If the offending provision cannot be so modified, it
shall be considered deleted from this Mortgage. Unless otherwise required
by law, the illegality, invalidity, or unenforceability of any provision of
this Mortgage shall not affect the legality, validity or enforceability of
any other provision of this Mortgage.
MERGER. There shall be no merger of the interest or estate created by this
Mortgage with any other interest or estate in the Property at any time held
by or for the benefit of Lender in any capacity, without the written
consent of Lender.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this Mortgage
on transfer of Grantor's interest, this Mortgage shall be binding upon and
inure to the benefit of the parties, their successors and assigns. If
ownership of the Property becomes vested in a person other than Grantor,
Lender, without notice to Grantor, may deal with Grantor's successors with
reference to this Mortgage and the Indebtedness by way of forbearance or
extension without releasing Grantor from the obligations of this Mortgage
or liability under the Indebtedness.
TIME IS OF THE ESSENCE. Time is of the essence in the performance of this
Mortgage.
WAIVE JURY. ALL PARTIES TO THIS MORTGAGE HEREBY WAIVE THE RIGHT TO ANY JURY
TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY ANY PARTY
AGAINST ANY OTHER PARTY.
WAIVER OF HOMESTEAD EXEMPTION. Grantor hereby releases and waives all
rights and benefits of the homestead exemption laws of the State of
Illinois as to all Indebtedness secured by this Mortgage.
WAIVER OF RIGHT OF REDEMPTION. NOTWITHSTANDING ANY OF THE PROVISIONS TO THE
CONTRARY CONTAINED IN THIS MORTGAGE, GRANTOR HEREBY WAIVES, TO THE EXTENT
PERMITTED UNDER 735 ILCS 5/15-1601(b) OR ANY SIMILAR LAW EXISTING AFTER
THE DATE OF THIS MORTGAGE, ANY AND ALL RIGHTS OF REDEMPTION ON GRANTOR'S
BEHALF AND ON BEHALF OF ANY OTHER PERSONS PERMITTED TO REDEEM THE PROPERTY.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Mortgage. Unless specifically stated to the contrary,
all references to dollar amounts shall mean amounts in lawful money of the
United States of America. Words and terms used in the singular shall include the
plural, and the plural shall include the singular, as the context may require.
Words and terms not otherwise defined in this Mortgage shall have the meanings
attributed to such terms in the Uniform Commercial Code:
BORROWER. The word "Borrower" means Advanced Life Sciences, Inc. and
includes all co-signers and co-makers signing the Note.
MORTGAGE
(Continued) Page 12
DEFAULT. The word "Default" means the Default set forth in this Mortgage in
the section titled "Default".
ENVIRONMENTAL LAWS. The words "Environmental Laws" mean any and all state,
federal and local statutes, regulations and ordinances relating to the
protection of human health or the environment, including without limitation
the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499
("XXXX"), the Hazardous Materials Transportation Act, 49 U.S.C. Section
1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq., or other applicable state or federal laws, rules, or
regulations adopted pursuant thereto.
EVENT OF DEFAULT. The words "Event of Default" mean any of the events of
default set forth in this Mortgage in the events of default section of this
Mortgage.
EXISTING INDEBTEDNESS. The words "Existing Indebtedness" mean the
indebtedness described in the Existing Liens provision of this Mortgage.
GRANTOR. The word "Grantor" means BioStart Property Group, LLC.
GUARANTOR. The word "Guarantor" means any guarantor, surety, or
accommodation party of any or all of the Indebtedness.
GUARANTY. The word "Guaranty" means the guaranty from Guarantor to Lender,
including without limitation a guaranty of all or part of the Note.
HAZARDOUS SUBSTANCES. The words "Hazardous Substances" mean materials that,
because of their quantity, concentration or physical, chemical or
infectious characteristics, may cause or pose a present or potential hazard
to human health or the environment when improperly used, treated, stored,
disposed of, generated, manufactured, transported or otherwise handled. The
words "Hazardous Substances" are used in their very broadest sense and
include without limitation any and all hazardous or toxic substances,
materials or waste as defined by or listed under the Environmental Laws.
The term "Hazardous Substances" also includes, without limitation,
petroleum and petroleum by-products or any fraction thereof and asbestos.
IMPROVEMENTS. The word "Improvements" means all existing and future
improvements, buildings, structures, mobile homes affixed on the Real
Property, facilities, additions, replacements and other construction on the
Real Property.
INDEBTEDNESS. The word "Indebtedness" means all principal, interest, and
other amounts, costs and expenses payable under the Note or Related
Documents, together with all renewals of, extensions of, modifications of,
consolidations of and substitutions for the Note or Related Documents and
any amounts expended or advanced by Lender to discharge Grantor's
obligations or expenses incurred by Lender to enforce Grantor's obligations
under this Mortgage, together with interest on such amounts as provided in
this Mortgage.
LENDER. The word "Lender" means THE LEADERS BANK, its successors and
assigns.
MORTGAGE. The word "Mortgage" means this Mortgage between Grantor and
Lender.
NOTE. The word "Note" means the promissory note dated December 21, 2004, IN
THE ORIGINAL PRINCIPAL AMOUNT OF $3,000,000.00 from Borrower to Lender,
together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the promissory
note or agreement. The interest rate on the Note is a variable interest
rate based upon an index. The index currently is 5.250% per annum. Payments
on the Note are to be made in accordance with the following payment
schedule: in one payment of all outstanding principal plus all accrued
unpaid interest on December 21, 2006. In addition, Borrower will pay
regular monthly payments of all accrued unpaid interest due as of each
payment date, beginning January 21, 2005, with all subsequent interest
payments to be due on the same day of each month after that. If the index
increases, the payments tied to the index, and therefore the total amount
secured hereunder, will increase. Any variable interest rate tied to the
index shall be calculated as of, and shall begin on, the commencement date
indicated for the applicable payment stream. NOTICE: Under no circumstances
shall the interest rate on this Mortgage be more than the maximum rate
allowed by applicable law. NOTICE TO
MORTGAGE
(Continued) Page 13
GRANTOR: THE NOTE CONTAINS A VARIABLE INTEREST RATE.
PERSONAL PROPERTY. The words "Personal Property" mean all equipment,
fixtures, and other articles of personal property now or hereafter owned by
Grantor, and now or hereafter attached or affixed to the Real Property;
together with all accessions, parts, and additions to, all replacements of,
and all substitutions for, any of such property; and together with all
proceeds (including without limitation all insurance proceeds and refunds
of premiums) from any sale or other disposition of the Property.
PROPERTY. The word "Property" means collectively the Real Property and the
Personal Property.
REAL PROPERTY. The words "Real Property" mean the real property, interests
and rights, as further described in this Mortgage.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.
RENTS. The word "Rents" means all present and future rents, revenues,
income, issues, royalties, profits, and other benefits derived from the
Property.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND
GRANTOR AGREES TO ITS TERMS.
GRANTOR:
BIOSTART PROPERTY GROUP, LLC
XXXXXX VENTURES LLC, Manager of Biostart Property Group, LLC
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx, Member of Xxxxxx Ventures LLC
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx, Member of Xxxxxx Ventures LLC
MORTGAGE
(Continued) Page 14
LIMITED LIABILITY COMPANY ACKNOWLEDGMENT
STATE OF ___________________________ )
) SS
COUNTY OF ___________________________ )
On this ____________ day of _______________________________,___________ before
me, the undersigned Notary Public, personally appeared XXXXXXX X. XXXXXX,
MEMBER; XXXX X. XXXXXX, MEMBER OF XXXXXX VENTURES LLC, and known to me to be
members or designated agents of the limited liability company that executed the
Mortgage and acknowledged the Mortgage to be the free and voluntary act and deed
of the limited liability company, by authority of statute, its articles of
organization or its operating agreement, for the uses and purposes therein
mentioned, and on oath stated that they are authorized to execute this Mortgage
and in fact executed the Mortgage on behalf of the limited liability company.
BY___________________________________ RESIDING AT _________________________
NOTARY PUBLIC IN AND FOR THE STATE OF _______________________
MY COMMISSION EXPIRES ____________________________________
[ILLEGIBLE]
COMMERCIAL PLEDGE AGREEMENT
Borrower: Advanced Life Sciences, Inc. Lender: THE LEADERS BANK
0000 Xxxxx Xxxxx 0000 XXXX XXXX, XXXXX 000
Xxxxxxxxx, XX 00000 XXX XXXXX, XX 00000
Grantor: Xxxxxx Ventures LLC
0000 Xxxxx Xxxx (Xxxxxxxxxxxxx Xxxxxx)
Xxxxxxxxx, XX 00000
THIS
COMMERCIAL PLEDGE AGREEMENT dated December 21, 2004, is made and executed
among Xxxxxx Ventures LLC ("Grantor"); Advanced Life Sciences, Inc.
("Borrower"); and THE LEADERS BANK ("Lender").
GRANT OF SECURITY INTEREST. For valuable consideration, Grantor grants to Lender
a security interest in the Collateral to secure the Indebtedness and agrees that
Lender shall have the rights stated in this Agreement with respect to the
Collateral, in addition to all other rights which Lender may have by law.
COLLATERAL DESCRIPTION. The word "Collateral" as used in this Agreement means
all of Grantor's property (however owned if more than one), in the possession of
Lender (or in the possession of a third party subject to the control of Lender),
whether existing now or later and whether tangible or intangible in character,
including without limitation each and all of the following:
1,800,000 Shares of
Advanced Life Sciences Holdings, Inc. Stock
In addition, the word "Collateral" includes all of Grantor's property (however
owned), in the possession of Lender (or in the possession of a third party
subject to the control of Lender), whether now or hereafter existing and whether
tangible or intangible in character, including without limitation each of the
following:
(A) All property to which Lender acquires title or documents of title.
(B) All property assigned to Lender.
(C) All promissory notes, bills of exchange, stock certificates, bonds,
savings passbooks, time certificates of deposit, Insurance policies, and
all other instruments and evidences of an obligation.
(D) All records relating to any of the property described in this
Collateral section, whether in the form of a writing, microfilm,
microfiche, or electronic media.
(E) All Income and Proceeds from the Collateral as defined herein.
BORROWER'S WAIVERS AND RESPONSIBILITIES. Except as otherwise required under this
Agreement or by applicable law, (A) Borrower agrees that Lender need not tell
Borrower about any action or inaction Lender takes in connection with this
Agreement; (B) Borrower assumes the responsibility for being and keeping
informed about the Collateral; and (C) Borrower waives any defenses that may
arise because of any action or inaction of Lender, including without limitation
any failure of Lender to realize upon the Collateral or any delay by Lender in
realizing upon the Collateral; and Borrower agrees to remain liable under the
Note no matter what action Lender takes or fails to take under this Agreement.
GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (A) this
Agreement is executed at Borrower's request and not at the request of Lender;
(B) Grantor has the full right, power and authority to enter into this Agreement
and to pledge the Collateral to Lender; (C) Grantor has established adequate
means of obtaining from Borrower on a continuing basis information about
Borrower's financial condition; and (D) Lender has made no representation to
Grantor about Borrower or Borrower's creditworthiness.
GRANTOR'S WAIVERS. Grantor waives all requirements of presentment, protest,
demand, and notice of dishonor or non-payment to Borrower or Grantor, or any
other party to the Indebtedness or the Collateral. Lender may do any of the
following with respect to any obligation of any Borrower, without first
obtaining the consent of Grantor: (A) grant any extension of time for any
payment, (B) grant any renewal, (C) permit any modification of payment terms or
other terms, or (D) exchange or release any Collateral or other security. No
such act or failure to act shall affect Lender's rights against Grantor or the
Collateral.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Grantor's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Grantor holds
jointly with someone else and all accounts Grantor may open in the future.
However, this does not include any XXX or Xxxxx accounts, or any trust accounts
for which setoff would be prohibited by law. Grantor authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
Indebtedness against any and all such accounts, and, at Lender's option, to
administratively freeze all such accounts to allow Lender to protect Lender's
charge and setoff rights provided in this paragraph.
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL. Grantor
represents and warrants to Lender that:
OWNERSHIP. Grantor is the lawful owner of the Collateral free and clear of
all security interests, liens, encumbrances and claims of others except as
disclosed to and accepted by Lender in writing prior to execution of this
Agreement.
RIGHT TO PLEDGE. Grantor has the full right, power and authority to enter
into this Agreement and to pledge the Collateral.
AUTHORITY; BINDING EFFECT. Grantor has the full right, power and authority
to enter into this Agreement and to grant a security interest in the
Collateral to Lender. This Agreement is binding upon Grantor as well as
Grantor's successors and assigns, and is legally enforceable in accordance
with its terms. The foregoing representations and warranties, and all other
representations and warranties contained in this Agreement are and shall be
continuing in nature and shall remain in full force and effect until such
time as this Agreement is terminated or cancelled as provided herein.
NO FURTHER ASSIGNMENT. Grantor has not, and shall not, sell, assign,
transfer, encumber or otherwise dispose of any of Grantor's rights in the
Collateral except as provided in this Agreement.
NO DEFAULTS. There are no defaults existing under the Collateral, and there
are no offsets or counterclaims to the same. Grantor will strictly and
promptly perform each of the terms, conditions, covenants and agreements,
if any, contained in the Collateral which are to be performed by Grantor.
NO VIOLATION. The execution and delivery of this Agreement will not violate
any law or agreement governing Grantor or to which Grantor is a party, and
its membership agreement does not prohibit any term or condition of this
Agreement.
FINANCING STATEMENTS. Grantor authorizes Lender to file a UCC financing
statement, or alternatively, a copy of this Agreement to perfect Lender's
security interest. At Lender's request, Grantor additionally agrees to sign
all other documents that are necessary to perfect, protect, and continue
Lender's security interest in the Property. Grantor will pay all filing
fees, title transfer fees, and other fees and costs involved unless
prohibited by
COMMERCIAL PLEDGE AGREEMENT
(Continued) Page 2
law or unless Lender is required by law to pay such fees and costs. Grantor
irrevocably appoints Lender to execute documents necessary to transfer
title if there is a default. Lender may file a copy of this Agreement as a
financing statement. If Grantor changes Grantor's name or address, or the
name or address of any person granting a security interest under this
Agreement changes, Grantor will promptly notify the Lender of such change.
LENDER'S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE COLLATERAL. Lender may hold
the Collateral until all Indebtedness has been paid and satisfied. Thereafter
Lender may deliver the Collateral to Grantor or to any other owner of the
Collateral. Lender shall have the following rights in addition to all other
rights Lender may have by law:
MAINTENANCE AND PROTECTION OF COLLATERAL. Lender may, but shall not be
obligated to, take such steps as it deems necessary or desirable to
protect, maintain, insure, store, or care for the Collateral, including
paying of any liens or claims against the Collateral. This may include such
things as hiring other people, such as attorneys, appraisers or other
experts. Lender may charge Grantor for any cost incurred in so doing. When
applicable law provides more than one method of perfection of Lender's
security interest, Lender may choose the method(s) to be used. If the
Collateral consists of stock, bonds or other investment property for which
no certificate has been issued, Grantor agrees, at Lender's request, either
to request issuance of an appropriate certificate or to give instructions
on Lender's forms to the issuer, transfer agent, mutual fund company, or
broker, as the case may be, to record on its books or records Lender's
security interest in the Collateral.
INCOME AND PROCEEDS FROM THE COLLATERAL. Lender may receive all Income and
Proceeds and add it to the Collateral. Grantor agrees to deliver to Lender
immediately upon receipt, in the exact form received and without
commingling with other property, all Income and Proceeds from the
Collateral which may be received by, paid, or delivered to Grantor or for
Grantor's account, whether as an addition to, in discharge of, in
substitution of, or in exchange for any of the Collateral.
APPLICATION OF CASH. At Lender's option, Lender may apply any cash, whether
included in the Collateral or received as Income and Proceeds or through
liquidation, sale, or retirement, of the Collateral, to the satisfaction of
the Indebtedness or such portion thereof as Lender shall choose, whether or
not matured.
TRANSACTIONS WITH OTHERS. Lender may (1) extend time for payment or other
performance, (2) grant a renewal or change in terms or conditions, or (3)
compromise, compound or release any obligation, with any one or more
Obligors, endorsers, or Guarantors of the Indebtedness as Lender deems
advisable, without obtaining the prior written consent of Grantor, and no
such act or failure to act shall affect Lender's rights against Grantor or
the Collateral.
ALL COLLATERAL SECURES INDEBTEDNESS. All Collateral shall be security for
the Indebtedness, whether the Collateral is located at one or more offices
or branches of Lender. This will be the case whether or not the office or
branch where Grantor obtained Grantor's loan knows about the Collateral or
relies upon the Collateral as security.
COLLECTION OF COLLATERAL. Lender at Lender's option may, but need not,
collect the Income and Proceeds directly from the Obligors. Grantor
authorizes and directs the Obligors, if Lender decides to collect the
Income and Proceeds, to pay and deliver to Lender all Income and Proceeds
from the Collateral and to accept Lender's receipt for the payments.
POWER OF ATTORNEY. Grantor irrevocably appoints Lender as Grantor's
attorney-in-fact, with full power of substitution, (a) to demand, collect,
receive, receipt for, xxx and recover all Income and Proceeds and other
sums of money and other property which may now or hereafter become due,
owing or payable from the Obligors in accordance with the terms of the
Collateral; (b) to execute, sign and endorse any and all instruments,
receipts, checks, drafts and warrants issued in payment for the Collateral;
(c) to settle or compromise any and all claims arising under the
Collateral, and in the place and stead of Grantor, execute and deliver
Grantor's release and acquittance for Grantor; (d) to file any claim or
claims or to take any action or institute or take part in any proceedings,
either in Lender's own name or in the name of Grantor, or otherwise, which
in the discretion of Lender may seem to be necessary or advisable; and (e)
to execute in Grantor's name and to deliver to the Obligors on Grantor's
behalf, at the time and in the manner specified by the Collateral, any
necessary instruments or documents.
PERFECTION OF SECURITY INTEREST. Upon Lender's request, Grantor will
deliver to Lender any and all of the documents evidencing or constituting
the Collateral. When applicable law provides more than one method of
perfection of Lender's security interest, Lender may choose the method(s)
to be used. Upon Lender's request, Grantor will sign and deliver any
writings necessary to perfect Lender's security interest. If any of the
Collateral consists of securities for which no certificate has been issued,
Grantor agrees, at Lender's option, either to request issuance of an
appropriate certificate or to execute appropriate instructions on Lender's
forms instructing the issuer, transfer agent, mutual fund company, or
broker, as the case may be, to record on its books or records, by
book-entry or otherwise, Lender's security interest in the Collateral.
Grantor hereby appoints Lender as Grantor's irrevocable attorney-ln-fact
for the purpose of executing any documents necessary to perfect, amend, or
to continue the security interest granted in this Agreement or to demand
termination of filings of other secured parties. This is a continuing
Security Agreement and will continue in effect even though all or any part
of the Indebtedness is paid in full and even though for a period of time
Borrower may not be Indebted to Lender.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Grantor fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Grantor's failure to discharge or pay when due any amounts
Grantor is required to discharge or pay under this Agreement or any Related
Documents, Lender on Grantor's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on the Collateral and paying all
costs for insuring, maintaining and preserving the Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Grantor. All such expenses will become a part
of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B)
be added to the balance of the Note and be apportioned among and be payable with
any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity. The Agreement also will secure payment of these amounts. Such right
shall be in addition to all other rights and remedies to which Lender may be
entitled upon Default.
LIMITATIONS ON OBLIGATIONS OF LENDER. Lender shall use ordinary reasonable care
in the physical preservation and custody of the Collateral in Lender's
possession, but shall have no other obligation to protect the Collateral or its
value. In particular, but without limitation, Lender shall have no
responsibility for (A) any depreciation in value of the Collateral or for the
collection or protection of any Income and Proceeds from the Collateral, (B)
preservation of rights against parties to the Collateral or against third
persons, (C) ascertaining any maturities, calls, conversions, exchanges, offers,
tenders, or similar matters relating to any of the Collateral, or (D) informing
Grantor about any of the above, whether or not Lender has or is deemed to have
knowledge of such matters. Except as provided above, Lender shall have no
liability for depreciation or deterioration of the Collateral.
REINSTATEMENT OF SECURITY INTEREST. If payment is made by Borrower, whether
voluntarily or otherwise, or by guarantor or by any third party, on the
Indebtedness and thereafter Lender is forced to remit the amount of that payment
(A) to Borrower's trustee in bankruptcy or to any similar person under any
federal or state bankruptcy law or law for the relief of debtors, (B) by reason
of any judgment, decree or order of any court or
COMMERCIAL PLEDGE AGREEMENT
(Continued) Page 3
administrative body having jurisdiction over Lender or any of Lender's property,
or (C) by reason of any settlement or compromise of any claim made by Lender
with any claimant (including without limitation Borrower), the indebtedness
shall be considered unpaid for the purpose of enforcement of this Agreement and
this Agreement shall continue to be effective or shall be reinstated, as the
case may be, notwithstanding any cancellation of this Agreement or of any note
or other instrument or agreement evidencing the Indebtedness and the Collateral
will continue to secure the amount repaid or recovered to the same extent as if
that amount never had been originally received by Lender, and Grantor shall be
bound by any judgment, decree, order, settlement or compromise relating to the
Indebtedness or to this Agreement.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
PAYMENT DEFAULT. Borrower fails to make any payment when due under the
Indebtedness.
OTHER DEFAULTS. Borrower or Grantor fails to comply with or to perform any
other term, obligation, covenant or condition contained in this Agreement
or in any of the Related Documents or to comply with or to perform any
term, obligation, covenant or condition contained in any other agreement
between Lender and Borrower or Grantor.
DEFAULT IN FAVOR OF THIRD PARTIES. Should Borrower or any Grantor default
under any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or person
that may materially affect any of Borrower's property or Borrower's or any
Grantor's ability to repay the Indebtedness or perform their respective
obligations under this Agreement or any of the Related Documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or Grantor or on Borrower's or Grantor's
behalf under this Agreement or the Related Documents is false or misleading
in any material respect, either now or at the time made or furnished or
becomes false or misleading at any time thereafter.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related Documents
ceases to be in full force and effect (including failure of any collateral
document to create a valid and perfected security interest or lien) at any
time and for any reason.
INSOLVENCY. The dissolution or termination of Borrower's or Grantor's
existence as a going business, the insolvency of Borrower or Grantor, the
appointment of a receiver for any part of Borrower's or Grantor's property,
any assignment for the benefit of creditors, any type of creditor workout,
or the commencement of any proceeding under any bankruptcy or insolvency
laws by or against Borrower or Grantor.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or Grantor or
by any governmental agency against any collateral securing the
Indebtedness. This includes a garnishment of any of Borrower's or Grantor's
accounts, including deposit accounts, with Lender. However, this Event of
Default shall not apply if there is a good faith dispute by Borrower or
Grantor as to the validity or reasonableness of the claim which is the
basis of the creditor or forfeiture proceeding and if Borrower or Grantor
gives Lender written notice of the creditor or forfeiture proceeding and
deposits with Lender monies or a surety bond for the creditor or forfeiture
proceeding, in an amount determined by Lender, in its sole discretion, as
being an adequate reserve or bond for the dispute.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with respect
to any Guarantor of any of the Indebtedness or Guarantor dies or becomes
incompetent or revokes or disputes the validity of, or liability under, any
Guaranty of the Indebtedness.
ADVERSE CHANGE. A material adverse change occurs in Borrower's or Grantor's
financial condition, or Lender believes the prospect of payment or
performance of the Indebtedness is impaired.
INSECURITY. Lender in good faith believes itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this
Agreement, at any time thereafter, Lender may exercise any one or more of the
following rights and remedies:
ACCELERATE INDEBTEDNESS. Declare all Indebtedness, including any prepayment
penalty which Borrower would be required to pay, immediately due and
payable, without notice of any kind to Borrower or Grantor.
COLLECT THE COLLATERAL. Collect any of the Collateral and, at Lender's
option and to the extent permitted by applicable law, retain possession of
the Collateral while suing on the Indebtedness.
SELL THE COLLATERAL. Sell the Collateral, at Lender's discretion, as a unit
or in parcels, at one or more public or private sales. Unless the
Collateral is perishable or threatens to decline speedily in value or is of
a type customarily sold on a recognized market, Lender shall give or mail
to Grantor, and other persons as required by law, notice at least ten (10)
days in advance of the time and place of any public sale, or of the time
after which any private sale may be made. However, no notice need be
provided to any person who, after an Event of Default occurs, enters into
and authenticates an agreement waiving that person's right to notification
of sale. Grantor agrees that any requirement of reasonable notice as to
Grantor is satisfied if Lender mails notice by ordinary mail addressed to
Grantor at the last address Grantor has given Lender in writing. If a
public sale is held, there shall be sufficient compliance with all
requirements of notice to the public by a single publication in any
newspaper of general circulation in the county where the Collateral is
located, setting forth the time and place of sale and a brief description
of the property to be sold. Lender may be a purchaser at any public sale.
SELL SECURITIES. Sell any securities included in the Collateral in a manner
consistent with applicable federal and state securities laws. If, because
of restrictions under such laws, Lender is unable, or believes Lender is
unable, to sell the securities in an open market transaction, Grantor
agrees that Lender will have no obligation to delay sale until the
securities can be registered. Then Lender may make a private sale to one or
more persons or to a restricted group of persons, even though such sale may
result in a price that is less favorable than might be obtained in an open
market transaction. Such a sale will be considered commercially reasonable.
If any securities held as Collateral are "restricted securities" as defined
in the Rules of the Securities and Exchange Commission (such as Regulation
D or Rule 144) or the rules of state securities departments under state
"Blue Sky" laws, or if Grantor or any other owner of the Collateral is an
affiliate of the issuer of the securities, Grantor agrees that neither
Grantor, nor any member of Grantor's family, nor any other person signing
this Agreement will sell or dispose of any securities of such issuer
without obtaining Lender's prior written consent.
RIGHTS AND REMEDIES WITH RESPECT TO INVESTMENT PROPERTY, FINANCIAL ASSETS
AND RELATED COLLATERAL. In addition to other rights and remedies granted
under this Agreement and under applicable law, Lender may exercise any or
all of the following rights and remedies: (1) register with any issuer or
broker or other securities intermediary any of the Collateral consisting of
investment property or financial assets (collectively herein, "investment
property") in Lender's sole name or in the name of Lender's broker, agent
or nominee; (2) cause any issuer, broker or other securities intermediary
to deliver to Lender any of the Collateral consisting of securities, or
investment property capable of being delivered; (3) enter into a control
agreement or power of attorney with any issuer or securities intermediary
with respect to any Collateral consisting of investment property, on such
terms as Lender may deem appropriate, in its sole discretion, including
without limitation, an agreement granting to Lender any
COMMERCIAL PLEDGE AGREEMENT
(Continued) Page 4
of the rights provided hereunder without further notice to or consent by
Grantor; (4) execute any such control agreement on Grantor's behalf and in
Grantor's name, and hereby irrevocably appoints Lender as agent and
attorney-in-fact, coupled with an interest, for the purpose of executing
such control agreement on Grantor's behalf; (5) exercise any and all rights
of Lender under any such control agreement or power of attorney; (6)
exercise any voting, conversion, registration, purchase, option, or other
rights with respect to any Collateral; (7) collect, with or without legal
action, and issue receipts concerning any notes, checks, drafts,
remittances or distributions that are paid or payable with respect to any
Collateral consisting of investment property. Any control agreement entered
with respect to any investment property shall contain the following
provisions, at Lender's discretion. Lender shall be authorized to instruct
the issuer, broker or other securities intermediary to take or to refrain
from taking such actions with respect to the investment property as Lender
may instruct, without further notice to or consent by Grantor. Such actions
may include without limitation the issuance of entitlement orders, account
instructions, general trading or buy or sell orders, transfer and
redemption orders, and stop loss orders. Lender shall be further entitled
to instruct the issuer, broker or securities intermediary to sell or to
liquidate any investment property, or to pay the cash surrender or account
termination value with respect to any and all investment property, and to
deliver all such payments and liquidation proceeds to Lender. Any such
control agreement shall contain such authorizations as are necessary to
place Lender in "control" of such investment collateral, as contemplated
under the provisions of the Uniform Commercial Code, and shall fully
authorize Lender to issue "entitlement orders" concerning the transfer,
redemption, liquidation or disposition of investment collateral, in
conformance with the provisions of the Uniform Commercial Code.
FORECLOSURE. Maintain a judicial suit for foreclosure and sale of the
Collateral.
TRANSFER TITLE. Effect transfer of title upon sale of all or part of the
Collateral. For this purpose, Grantor irrevocably appoints Lender as
Grantor's attorney-in-fact to execute endorsements, assignments and
instruments in the name of Grantor and each of them (if more than one) as
shall be necessary or reasonable.
OTHER RIGHTS AND REMEDIES. Have and exercise any or all of the rights and
remedies of a secured creditor under the provisions of the Uniform
Commercial Code, at law, in equity, or otherwise.
APPLICATION OF PROCEEDS. Apply any cash which is part of the Collateral, or
which is received from the collection or sale of the Collateral, to
reimbursement of any expenses, including any costs for registration of
securities, commissions incurred in connection with a sale, attorneys' fees
and court costs, whether or not there is a lawsuit and including any fees
on appeal, incurred by Lender in connection with the collection and sale of
such Collateral and to the payment of the Indebtedness of Borrower to
Lender, with any excess funds to be paid to Grantor as the interests of
Grantor may appear. Borrower agrees, to the extent permitted by law, to pay
any deficiency after application of the proceeds of the Collateral to the
Indebtedness.
ELECTION OF REMEDIES. Except as may be prohibited by applicable law, all of
Lender's rights and remedies, whether evidenced by this Agreement, the
Related Documents, or by any other writing, shall be cumulative and may be
exercised singularly or concurrently. Election by Lender to pursue any
remedy shall not exclude pursuit of any other remedy, and an election to
make expenditures or to take action to perform an obligation of Grantor
under this Agreement, after Grantor's failure to perform, shall not affect
Lender's right to declare a default and exercise its remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Agreement. No alteration of or amendment to this
Agreement shall be effective unless given in writing and signed by the
party or parties sought to be charged or bound by the alteration or
amendment.
ATTORNEYS' FEES; EXPENSES. Grantor agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Agreement Lender may hire or pay someone else to help enforce this
Agreement, and Grantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's attorneys' fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and
legal expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. Grantor also shall pay all court costs
and such additional fees as may be directed by the court.
CAPTION HEADINGS. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Agreement.
GOVERNING LAW. This Agreement will be governed by, construed and enforced
in accordance with federal law and the laws of the State of Illinois. This
Agreement has been accepted by Lender in the State of Illinois.
CHOICE OF VENUE. If there is a lawsuit, Grantor agrees upon Lender's
request to submit to the jurisdiction of the courts of DU PAGE County,
State of Illinois.
JOINT AND SEVERAL LIABILITY. All obligations of Borrower and Grantor under
this Agreement shall be joint and several, and all references to Grantor
shall mean each and every Grantor, and all references to Borrower shall
mean each and every Borrower. This means that each Borrower and Grantor
signing below is responsible for all obligations in this Agreement. Where
any one or more of the parties is a corporation, partnership, limited
liability company or similar entity, it is not necessary for Lender to
inquire into the powers of any of the officers, directors, partners,
members, or other agents acting or purporting to act on the entity's
behalf, and any obligations made or created in reliance upon the professed
exercise of such powers shall be guaranteed under this Agreement.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any rights
under this Agreement unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Agreement shall not prejudice or constitute a
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Agreement. No prior waiver by
Lender, nor any course of dealing between Lender and Grantor, shall
constitute a waiver of any of Lender's rights or of any of Grantor's
obligations as to any future transactions. Whenever the consent of Lender
is required under this Agreement, the granting of such consent by Lender in
any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may
be granted or withheld in the sole discretion of Lender.
NOTICES. Any notice required to be given under this Agreement shall be
given in writing, and shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law), when
deposited with a nationally recognized overnight courier, or, if mailed,
when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near the
beginning of this Agreement. Any party may change its address for notices
under this Agreement by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party's address.
For notice purposes, Grantor agrees to keep Lender informed at all times of
Grantor's current address. Unless otherwise provided or required by law, if
there is more than one Grantor, any notice given by
COMMERCIAL PLEDGE AGREEMENT
(Continued) Page 5
Lender to any Grantor is deemed to be notice given to all Grantors.
SEVERABILITY. If a court of competent jurisdiction finds any provision of
this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal,
invalid, or unenforceable as to any other circumstance. If feasible, the
offending provision shall be considered modified so that it becomes legal,
valid and enforceable. If the offending provision cannot be so modified, it
shall be considered deleted from this Agreement. Unless otherwise required
by law, the illegality, invalidity, or unenforceability of any provision of
this Agreement shall not affect the legality, validity or enforceability of
any other provision of this Agreement.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this Agreement
on transfer of Grantor's interest, this Agreement shall be binding upon and
inure to the benefit of the parties, their successors and assigns. If
ownership of the Collateral becomes vested in a person other than Grantor,
Lender, without notice to Grantor, may deal with Grantor's successors with
reference to this Agreement and the Indebtedness by way of forbearance or
extension without releasing Grantor from the obligations of this Agreement
or liability under the Indebtedness.
TIME IS OF THE ESSENCE. Time is of the essence in the performance of this
Agreement.
WAIVE JURY. All parties to this Agreement hereby waive the right to any
jury trial in any action, proceeding, or counterclaim brought by any party
against any other party.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code:
AGREEMENT. The word "Agreement" means this
Commercial Pledge Agreement, as
this
Commercial Pledge Agreement may be amended or modified from time to
time, together with all exhibits and schedules attached to this
Commercial
Pledge Agreement from time to time.
BORROWER. The word "Borrower" means Advanced Life Sciences, Inc. and
includes all co-signers and co-makers signing the Note.
COLLATERAL. The word "Collateral" means all of Grantor's right, title and
interest in and to all the Collateral as described in the Collateral
Description section of this Agreement.
DEFAULT. The word "Default" means the Default set forth in this Agreement
in the section titled "Default".
EVENT OF DEFAULT. The words "Event of Default" mean any of the events of
default set forth in this Agreement in the default
section of this Agreement.
GRANTOR. The word "Grantor" means Xxxxxx Ventures LLC.
GUARANTOR. The word "Guarantor" means any guarantor, surety, or
accommodation party of any or all of the Indebtedness.
GUARANTY. The word "Guaranty" means the guaranty from Guarantor to Lender,
including without limitation a guaranty of all or part of the Note.
INCOME AND PROCEEDS. The words "Income and Proceeds" mean all present and
future income, proceeds, earnings, increases, and substitutions from or for
the Collateral of every kind and nature, including without limitation all
payments, interest, profits, distributions, benefits, rights, options,
warrants, dividends, stock dividends, stock splits, stock rights,
regulatory dividends, subscriptions, monies, claims for money due and to
become due, proceeds of any insurance on the Collateral, shares of stock
of different par value or no par value issued in substitution or exchange
for shares included in the Collateral, and all other property Grantor is
entitled to receive on account of such Collateral, including accounts,
documents, instruments, chattel paper, and general intangibles.
INDEBTEDNESS. The word "Indebtedness" means the indebtedness evidenced by
the Note or Related Documents, including all principal and interest
together with all other indebtedness and costs and expenses for which
Borrower is responsible under this Agreement or under any of the Related
Documents.
LENDER. The word "Lender" means THE LEADERS BANK, its successors and
assigns.
NOTE. The word "Note" means the Note executed by Advanced Life Sciences,
Inc. in the principal amount of $3,000,000.00 dated December 21, 2004,
together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the note or
credit agreement.
OBLIGOR. The word "Obligor" means without limitation any and all persons
obligated to pay money or to perform some other act under the Collateral.
PROPERTY. The word "Property" means all of Grantor's right, title and
interest in and to all the Property as described in the "Collateral
Description" section of this Agreement.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.
BORROWER AND GRANTOR HAVE READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS
COMMERCIAL PLEDGE AGREEMENT AND AGREE TO ITS TERMS. THIS AGREEMENT IS DATED
DECEMBER 21, 2004.
GRANTOR:
XXXXXX VENTURES LLC
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------- -------------------------------------------------
Xxxxxxx X. Xxxxxx, Member of Xxxxxx Ventures LLC Xxxx X. Xxxxxx, Member of Xxxxxx Ventures LLC
COMMERCIAL PLEDGE AGREEMENT
(Continued) Page 6
BORROWER:
ADVANCED LIFE SCIENCES, INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X Xxxxxx, President of Advanced Life
Sciences, Inc.
LENDER
THE LEADERS BANK
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Authorized Signer
[ILLEGIBLE]
IRREVOCABLE STOCK OR BOND POWER OR ENTITLEMENT ORDER
FOR VALUE RECEIVED, the undersigned hereby sell, assign and transfer to ________
________________________________________________________________________________
Please insert Social Security
or Taxpayer I.D. Number ___________________
FOR STOCKS, COMPLETE THIS PORTION: ______________ share(s) of the ___________
stock of _______________________________________________________________________
represented by Certificate No. __________________________, standing in the name
of the undersigned on the books of the Company.
FOR BONDS, COMPLETE THIS PORTION: ______________ bond(s) of_____________________
on the principal amount of $_________________, No.______________________,
standing in the name of the undersigned on the books of said Company.
FOR OTHER INVESTMENT COLLATERAL, COMPLETE THIS PORTION:
Account No. __________________, of _____________________________________________
(Name and address of intermediary or issuer)
______________________________, including all investment Collateral in the
account and free credit balances.
The undersigned hereby irrevocably constitute and appoint ______________________
attorney to transfer the above stock or bond or other investment Collateral, as
the case may be, on the books of said Company, with full power of substitution
in the premises.
Dated _________________
SIGNATURE(S) GUARANTEED BY:
Signature /s/ Xxxx X. Xxxxxx Signature /s/ Xxxxxxx X. Xxxxxx
---------------------- --------------------------
IMPORTANT - READ CAREFULLY
The signature(s) must correspond with the name(s) as written upon the face of
the certificate or bond in every particular without alteration or enlargement or
any change whatever, and must be guaranteed by a bank or registered securities
dealer.
[ILLEGIBLE]
COMMERCIAL PLEDGE AGREEMENT
Borrower: Advanced Life Sciences, Inc. Lender: THE LEADERS BANK
0000 Xxxxx Xxxxx 0000 XXXX XXXX, XXXXX 000
Xxxxxxxxx, XX 00000 XXX XXXXX, XX 00000
Grantor:
Advanced Life Sciences Holdings, Inc.
0000 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
THIS COMMERCIAL PLEDGE AGREEMENT dated December 21, 2004, is made and executed
among
Advanced Life Sciences Holdings, Inc. ("Grantor"); Advanced Life Sciences,
Inc. ("Borrower"); and THE LEADERS BANK ("Lender").
GRANT OF SECURITY INTEREST. For valuable consideration, Grantor grants to Lender
a security interest in the Collateral to secure the Indebtedness and agrees that
Lender shall have the rights stated in this Agreement with respect to the
Collateral, in addition to all other rights which Lender may have by law.
COLLATERAL DESCRIPTION. The word "Collateral" as used in this Agreement means
Grantor's present and future rights, title and interest in and to, together with
any and all present and future additions thereto, substitutions therefore, and
replacements thereof, and further together with all Income and Proceeds as
described herein:
A Sub-License of a Certain License Agreement entered into by
Advanced Life
Sciences Holdings, Inc., a Delaware corporation and by Xxxxxx Laboratories,
an Illinois corporation dated December 13, 2004 (See Exhibit "A")
BORROWER'S WAIVERS AND RESPONSIBILITIES. Except as otherwise required under this
Agreement or by applicable law, (A) Borrower agrees that Lender need not tell
Borrower about any action or inaction Lender takes in connection with this
Agreement; (B) Borrower assumes the responsibility for being and keeping
informed about the Collateral; and (C) Borrower waives any defenses that may
arise because of any action or inaction of Lender, including without limitation
any failure of Lender to realize upon the Collateral or any delay by Lender in
realizing upon the Collateral; and Borrower agrees to remain liable under the
Note no matter what action Lender takes or fails to take under this Agreement.
GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (A) this
Agreement is executed at Borrower's request and not at the request of Lender;
(B) Grantor has the full right, power and authority to enter into this Agreement
and to pledge the Collateral to Lender; (C) Grantor has established adequate
means of obtaining from Borrower on a continuing basis information about
Borrower's financial condition; and (D) Lender has made no representation to
Grantor about Borrower or Borrower's creditworthiness.
GRANTOR'S WAIVERS. Grantor waives all requirements of presentment, protest,
demand, and notice of dishonor or non-payment to Borrower or Grantor, or any
other party to the Indebtedness or the Collateral. Lender may do any of the
following with respect to any obligation of any Borrower, without first
obtaining the consent of Grantor: (A) grant any extension of time for any
payment, (B) grant any renewal, (C) permit any modification of payment terms or
other terms, or (D) exchange or release any Collateral or other security. No
such act or failure to act shall affect Lender's rights against Grantor or the
Collateral.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Grantor's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Grantor holds
jointly with someone else and all accounts Grantor may open in the future.
However, this does not include any XXX or Xxxxx accounts, or any trust accounts
for which setoff would be prohibited by law. Grantor authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
Indebtedness against any and all such accounts, and, at Lender's option, to
administratively freeze all such accounts to allow Lender to protect Lender's
charge and setoff rights provided in this paragraph.
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL. Grantor
represents and warrants to Lender that:
OWNERSHIP. Grantor is the lawful owner of the Collateral free and clear of
all security interests, liens, encumbrances and claims of others except as
disclosed to and accepted by Lender in writing prior to execution of this
Agreement.
RIGHT TO PLEDGE. Grantor has the full right, power and authority to enter
into this Agreement and to pledge the Collateral.
AUTHORITY; BINDING EFFECT. Grantor has the full right, power and authority
to enter into this Agreement and to grant a security interest in the
Collateral to Lender. This Agreement is binding upon Grantor as well as
Grantor's successors and assigns, and is legally enforceable in accordance
with its terms. The foregoing representations and warranties, and all other
representations and warranties contained in this Agreement are and shall be
continuing in nature and shall remain in full force and effect until such
time as this Agreement is terminated or cancelled as provided herein.
NO FURTHER ASSIGNMENT. Grantor has not, and shall not, sell, assign,
transfer, encumber or otherwise dispose of any of Grantor's rights in the
Collateral except as provided in this Agreement.
ENFORCEABILITY OF COLLATERAL. To the extent the Collateral consists of
promissory notes or other instruments, as defined by the Uniform Commercial
Code, the Collateral is enforceable in accordance with its terms, is
genuine, and fully complies with all applicable laws and regulations
concerning form, content and manner of preparation and execution, and all
persons appearing to be obligated on the Collateral have authority and
capacity to contract and are in fact obligated as they appear to be on the
Collateral. There shall be no setoffs or counterclaims against any of the
Collateral, and no agreement shall have been made under which any
deductions or discounts may be claimed concerning the Collateral except
those disclosed to Lender in writing.
NO DEFAULTS. There are no defaults existing under the Collateral, and there
are no offsets or counterclaims to the same. Grantor will strictly and
promptly perform each of the terms, conditions, covenants and agreements,
if any, contained in the Collateral which are to be performed by Grantor.
NO VIOLATION. The execution and delivery of this Agreement will not violate
any law or agreement governing Grantor or to which Grantor is a party, and
its certificate or articles of incorporation and bylaws do not prohibit any
term or condition of this Agreement.
FINANCING STATEMENTS. Grantor authorizes Lender to file a UCC financing
statement, or alternatively, a copy of this Agreement to perfect Lender's
security interest. At Lender's request, Grantor additionally agrees to sign
all other documents that are necessary to perfect, protect, and continue
Lenders security interest in the Property. Grantor will pay all filing
fees, title transfer fees, and other fees and costs involved unless
prohibited by law or unless Lender is required by law to pay such fees and
costs. Grantor irrevocably appoints Lender to execute documents necessary
to transfer title if there is a default. Lender may file a copy of this
Agreement as a financing statement. If Grantor changes Grantor's name or
address, or the name or address of any person granting a security interest
under this Agreement changes, Grantor will promptly notify the Lender of
such change.
LENDER'S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE COLLATERAL. Lender may hold
the Collateral until all Indebtedness has been
COMMERCIAL PLEDGE AGREEMENT
(Continued) Page 2
paid and satisfied. Thereafter Lender may deliver the Collateral to Grantor or
to any other owner of the Collateral. Lender shall have the following rights in
addition to all other rights Lender may have by law:
MAINTENANCE AND PROTECTION OF COLLATERAL. Lender may, but shall not be
obligated to, take such steps as it deems necessary or desirable to
protect, maintain, insure, store, or care for the Collateral, including
paying of any liens or claims against the Collateral. This may include such
things as hiring other people, such as attorneys, appraisers or other
experts. Lender may charge Grantor for any cost incurred in so doing. When
applicable law provides more than one method of perfection of Lender's
security interest, Lender may choose the method(s) to be used.
INCOME AND PROCEEDS FROM THE COLLATERAL. Lender may receive all Income and
Proceeds and add it to the Collateral. Grantor agrees to deliver to Lender
immediately upon receipt, in the exact form received and without
commingling with other property, all Income and Proceeds from the
Collateral which may be received by, paid, or delivered to Grantor or for
Grantor's account, whether as an addition to, in discharge of, in
substitution of, or in exchange for any of the Collateral.
APPLICATION OF CASH. At Lender's option, Lender may apply any cash, whether
included in the Collateral or received as Income and Proceeds or through
liquidation, sale, or retirement, of the Collateral, to the satisfaction of
the Indebtedness or such portion thereof as Lender shall choose, whether or
not matured.
TRANSACTIONS WITH OTHERS. Lender may (1) extend time for payment or other
performance, (2) grant a renewal or change in terms or conditions, or (3)
compromise, compound or release any obligation, with any one or more
Obligors, endorsers, or Guarantors of the Indebtedness as Lender deems
advisable, without obtaining the prior written consent of Grantor, and no
such act or failure to act shall affect Lender's rights against Grantor or
the Collateral.
ALL COLLATERAL SECURES INDEBTEDNESS. All Collateral shall be security for
the Indebtedness, whether the Collateral is located at one or more offices
or branches of Lender. This will be the case whether or not the office or
branch where Grantor obtained Grantor's loan knows about the Collateral or
relies upon the Collateral as security.
COLLECTION OF COLLATERAL. Lender at Lender's option may, but need not,
collect the Income and Proceeds directly from the Obligors. Grantor
authorizes and directs the Obligors, if Lender decides to collect the
Income and Proceeds, to pay and deliver to Lender all Income and Proceeds
from the Collateral and to accept Lender's receipt for the payments.
POWER OF ATTORNEY. Grantor irrevocably appoints Lender as Grantor's
attorney-in-fact, with full power of substitution, (a) to demand, collect,
receive, receipt for, xxx and recover all Income and Proceeds and other
sums of money and other property which may now or hereafter become due,
owing or payable from the Obligors in accordance with the terms of the
Collateral; (b) to execute, sign and endorse any and all instruments,
receipts, checks, drafts and warrants issued in payment for the Collateral;
(c) to settle or compromise any and all claims arising under the
Collateral, and in the place and stead of Grantor, execute and deliver
Grantor's release and acquittance for Grantor; (d) to file any claim or
claims or to take any action or institute or take part in any proceedings,
either in Lender's own name or in the name of Grantor, or otherwise, which
in the discretion of Lender may seem to be necessary or advisable; and (e)
to execute in Grantor's name and to deliver to the Obligors on Grantor's
behalf, at the time and in the manner specified by the Collateral, any
necessary instruments or documents.
PERFECTION OF SECURITY INTEREST. Upon Lender's request, Grantor will
deliver to Lender any and all of the documents evidencing or constituting
the Collateral. When applicable law provides more than one method of
perfection of Lender's security interest, Lender may choose the method(s)
to be used. Upon Lender's request, Grantor will sign and deliver any
writings necessary to perfect Lender's security interest. Grantor hereby
appoints Lender as Grantor's irrevocable attorney-in-fact for the purpose
of executing any documents necessary to perfect, amend, or to continue the
security interest granted in this Agreement or to demand termination of
filings of other secured parties. This is a continuing Security Agreement
and will continue in effect even though all or any part of the Indebtedness
is paid in full and even though for a period of time Borrower may not be
indebted to Lender.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Grantor fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Grantor's failure to discharge or pay when due any amounts
Grantor is required to discharge or pay under this Agreement or any Related
Documents, Lender on Grantor's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on the Collateral and paying all
costs for insuring, maintaining and preserving the Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Grantor. All such expenses will become a part
of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B)
be added to the balance of the Note and be apportioned among and be payable with
any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity. The Agreement also will secure payment of these amounts. Such right
shall be in addition to all other rights and remedies to which Lender may be
entitled upon Default.
LIMITATIONS ON OBLIGATIONS OF LENDER. Lender shall use ordinary reasonable care
in the physical preservation and custody of the Collateral in Lender's
possession, but shall have no other obligation to protect the Collateral or its
value. In particular, but without limitation, Lender shall have no
responsibility for (A) any depreciation in value of the Collateral or for the
collection or protection of any Income and Proceeds from the Collateral, (B)
preservation of rights against parties to the Collateral or against third
persons, (C) ascertaining any maturities, calls, conversions, exchanges, offers,
tenders, or similar matters relating to any of the Collateral, or (D) informing
Grantor about any of the above, whether or not Lender has or is deemed to have
knowledge of such matters. Except as provided above, Lender shall have no
liability for depreciation or deterioration of the Collateral.
REINSTATEMENT OF SECURITY INTEREST. If payment is made by Borrower, whether
voluntarily or otherwise, or by guarantor or by any third party, on the
Indebtedness and thereafter Lender is forced to remit the amount of that payment
(A) to Borrower's trustee in bankruptcy or to any similar person under any
federal or state bankruptcy law or law for the relief of debtors, (B) by reason
of any judgment, decree or order of any court or administrative body having
jurisdiction over Lender or any of Lender's property, or (C) by reason of any
settlement or compromise of any claim made by Lender with any claimant
(including without limitation Borrower), the Indebtedness shall be considered
unpaid for the purpose of enforcement of this Agreement and this Agreement shall
continue to be effective or shall be reinstated, as the case may be,
notwithstanding any cancellation of this Agreement or of any note or other
instrument or agreement evidencing the Indebtedness and the Collateral will
continue to secure the amount repaid or recovered to the same extent as if that
amount never had been originally received by Lender, and Grantor shall be bound
by any judgment, decree, order, settlement or compromise relating to the
Indebtedness or to this Agreement.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
PAYMENT DEFAULT. Borrower fails to make any payment when due under the
Indebtedness.
OTHER DEFAULTS. Borrower or Grantor fails to comply with or to perform any
other term, obligation, covenant or condition contained in this Agreement
or in any of the Related Documents or to comply with or to perform any
term, obligation, covenant or condition contained in any other
COMMERCIAL PLEDGE AGREEMENT
(Continued) Page 3
agreement between Lender and Borrower or Grantor.
DEFAULT IN FAVOR OF THIRD PARTIES. Should Borrower or any Grantor default
under any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or person
that may materially affect any of Borrower's property or Borrower's or any
Grantor's ability to repay the Indebtedness or perform their respective
obligations under this Agreement or any of the Related Documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or Grantor or on Borrower's or Grantor's
behalf under this Agreement or the Related Documents is false or
misleading in any material respect, either now or at the time made or
furnished or becomes false or misleading at any time thereafter.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related Documents
ceases to be in full force and effect (including failure of any collateral
document to create a valid and perfected security interest or lien) at any
time and for any reason.
INSOLVENCY. The dissolution or termination of Borrower's or Grantor's
existence as a going business, the insolvency of Borrower or Grantor, the
appointment of a receiver for any part of Borrower's or Grantors property,
any assignment for the benefit of creditors, any type of creditor workout,
or the commencement of any proceeding under any bankruptcy or insolvency
laws by or against Borrower or Grantor.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or Grantor or
by any governmental agency against any collateral securing the
Indebtedness. This includes a garnishment of any of Borrower's or Grantor's
accounts, including deposit accounts, with Lender. However, this Event of
Default shall not apply if there is a good faith dispute by Borrower or
Grantor as to the validity or reasonableness of the claim which is the
basis of the creditor or forfeiture proceeding and if Borrower or Grantor
gives Lender written notice of the creditor or forfeiture proceeding and
deposits with Lender monies or a surety bond for the creditor or forfeiture
proceeding, in an amount determined by Lender, in its sole discretion, as
being an adequate reserve or bond for the dispute.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with respect
to any Guarantor of any of the Indebtedness or Guarantor dies or becomes
incompetent or revokes or disputes the validity of, or liability under, any
Guaranty of the Indebtedness.
ADVERSE CHANGE. A material adverse change occurs in Borrower's or Grantor's
financial condition, or Lender believes the prospect of payment or
performance of the Indebtedness is impaired.
INSECURITY. Lender in good faith believes itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this
Agreement, at any time thereafter, Lender may exercise any one or more of the
following rights and remedies:
ACCELERATE INDEBTEDNESS. Declare all Indebtedness, including any prepayment
penalty which Borrower would be required to pay, immediately due and
payable, without notice of any kind to Borrower or Grantor.
COLLECT THE COLLATERAL. Collect any of the Collateral and, at Lender's
option and to the extent permitted by applicable law, retain possession of
the Collateral while suing on the Indebtedness.
SELL THE COLLATERAL. Sell the Collateral, at Lender's discretion, as a unit
or in parcels, at one or more public or private sales. Unless the
Collateral is perishable or threatens to decline speedily in value or is of
a type customarily sold on a recognized market, Lender shall give or mail
to Grantor, and other persons as required by law, notice at least ten (10)
days in advance of the time and place of any public sale, or of the time
after which any private sale may be made. However, no notice need be
provided to any person who, after an Event of Default occurs, enters into
and authenticates an agreement waiving that person's right to notification
of sale. Grantor agrees that any requirement of reasonable notice as to
Grantor is satisfied if Lender mails notice by ordinary mail addressed to
Grantor at the last address Grantor has given Lender in writing. If a
public sale is held, there shall be sufficient compliance with all
requirements of notice to the public by a single publication in any
newspaper of general circulation in the county where the Collateral is
located, setting forth the time and place of sale and a brief description
of the property to be sold. Lender may be a purchaser at any public sale.
SELL SECURITIES. Sell any securities included in the Collateral in a manner
consistent with applicable federal and state securities laws. If, because
of restrictions under such laws, Lender is unable, or believes Lender is
unable, to sell the securities in an open market transaction, Grantor
agrees that Lender will have no obligation to delay sale until the
securities can be registered. Then Lender may make a private sale to one or
more persons or to a restricted group of persons, even though such sale may
result in a price that is less favorable than might be obtained in an open
market transaction. Such a sale will be considered commercially reasonable.
If any securities held as Collateral are "restricted securities" as defined
in the Rules of the Securities and Exchange Commission (such as
Regulation D or Rule 144) or the rules of state securities departments
under state "Blue Sky" laws, or if Grantor or any other owner of the
Collateral is an affiliate of the issuer of the securities, Grantor agrees
that neither Grantor, nor any member of Grantor's family, nor any other
person signing this Agreement will sell or dispose of any securities of
such issuer without obtaining Lender's prior written consent.
FORECLOSURE. Maintain a judicial suit for foreclosure and sale of the
Collateral.
TRANSFER TITLE. Effect transfer of title upon sale of all or part of the
Collateral. For this purpose, Grantor irrevocably appoints Lender as
Grantor's attorney-in-fact to execute endorsements, assignments and
instruments in the name of Grantor and each of them (if more than one) as
shall be necessary or reasonable.
OTHER RIGHTS AND REMEDIES. Have and exercise any or all of the rights and
remedies of a secured creditor under the provisions of the Uniform
Commercial Code, at law, in equity, or otherwise.
APPLICATION OF PROCEEDS. Apply any cash which is part of the Collateral, or
which is received from the collection or sale of the Collateral, to
reimbursement of any expenses, including any costs for registration of
securities, commissions incurred in connection with a sale, attorneys' fees
and court costs, whether or not there is a lawsuit and including any fees
on appeal, incurred by Lender in connection with the collection and sale of
such Collateral and to the payment of the Indebtedness of Borrower to
Lender, with any excess funds to be paid to Grantor as the interests of
Grantor may appear. Borrower agrees, to the extent permitted by law, to pay
any deficiency after application of the proceeds of the Collateral to the
Indebtedness.
ELECTION OF REMEDIES. Except as may be prohibited by applicable law, all of
Lender's rights and remedies, whether evidenced by this Agreement, the
Related Documents, or by any other writing, shall be cumulative and may be
exercised singularly or concurrently. Election by Lender to pursue any
remedy shall not exclude pursuit of any other remedy, and an election to
make expenditures or to take action to perform an obligation of Grantor
under this Agreement, after Grantor's failure to perform, shall not affect
Lender's right to declare a default and exercise its remedies.
COMMERCIAL PLEDGE AGREEMENT
(Continued) Page 4
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Agreement. No alteration of or amendment to this
Agreement shall be effective unless given in writing and signed by the
party or parties sought to be charged or bound by the alteration or
amendment.
ATTORNEYS' FEES; EXPENSES. Grantor agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may hire or pay someone else to help enforce this
Agreement, and Grantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's attorneys' fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and
legal expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. Grantor also shall pay all court costs
and such additional fees as may be directed by the court.
CAPTION HEADINGS. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Agreement.
GOVERNING LAW. This Agreement will be governed by, construed and enforced
in accordance with federal law and the laws of the State of Illinois. This
Agreement has been accepted by Lender in the State of Illinois.
CHOICE OF VENUE. If there is a lawsuit, Grantor agrees upon Lender's
request to submit to the jurisdiction of the courts of DU PAGE County,
State of Illinois.
JOINT AND SEVERAL LIABILITY. All obligations of Borrower and Grantor under
this Agreement shall be joint and several, and all references to Grantor
shall mean each and every Grantor, and all references to Borrower shall
mean each and every Borrower. This means that each Borrower and Grantor
signing below is responsible for all obligations in this Agreement. Where
any one or more of the parties is a corporation, partnership, limited
liability company or similar entity, it is not necessary for Lender to
inquire into the powers of any of the officers, directors, partners,
members, or other agents acting or purporting to act on the entity's
behalf, and any obligations made or created in reliance upon the professed
exercise of such powers shall be guaranteed under this Agreement.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any rights
under this Agreement unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Agreement shall not prejudice or constitute a
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Agreement. No prior waiver by
Lender, nor any course of dealing between Lender and Grantor, shall
constitute a waiver of any of Lender's rights or of any of Grantor's
obligations as to any future transactions. Whenever the consent of Lender
is required under this Agreement, the granting of such consent by Lender in
any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may
be granted or withheld in the sole discretion of Lender.
NOTICES. Any notice required to be given under this Agreement shall be
given in writing, and shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law), when
deposited with a nationally recognized overnight courier, or, if mailed,
when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near the
beginning of this Agreement. Any party may change its address for notices
under this Agreement by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party's address.
For notice purposes, Grantor agrees to keep Lender informed at all times of
Grantor's current address. Unless otherwise provided or required by law, if
there is more than one Grantor, any notice given by Lender to any Grantor
is deemed to be notice given to all Grantors.
SEVERABILITY. If a court of competent jurisdiction finds any provision of
this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal,
invalid, or unenforceable as to any other circumstance. If feasible, the
offending provision shall be considered modified so that it becomes legal,
valid and enforceable. If the offending provision cannot be so modified, it
shall be considered deleted from this Agreement. Unless otherwise required
by law, the illegality, invalidity, or unenforceability of any provision of
this Agreement shall not affect the legality, validity or enforceability of
any other provision of this Agreement.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this Agreement
on transfer of Grantor's interest, this Agreement shall be binding upon and
inure to the benefit of the parties, their successors and assigns. If
ownership of the Collateral becomes vested in a person other than Grantor,
Lender, without notice to Grantor, may deal with Grantor's successors with
reference to this Agreement and the Indebtedness by way of forbearance or
extension without releasing Grantor from the obligations of this Agreement
or liability under the Indebtedness.
TIME IS OF THE ESSENCE. Time is of the essence in the performance of this
Agreement.
WAIVE JURY. All parties to this Agreement hereby waive the right to any
jury trial in any action, proceeding, or counterclaim brought by any party
against any other party.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code:
AGREEMENT. The word "Agreement" means this Commercial Pledge Agreement, as
this Commercial Pledge Agreement may be amended or modified from time to
time, together with all exhibits and schedules attached to this Commercial
Pledge Agreement from time to time.
BORROWER. The word "Borrower" means Advanced Life Sciences, Inc. and
includes all co-signers and co-makers signing the Note.
COLLATERAL. The word "Collateral" means all of Grantor's right, title and
interest in and to all the Collateral as described in the Collateral
Description section of this Agreement.
DEFAULT. The word "Default" means the Default set forth in this Agreement
in the section titled "Default".
EVENT OF DEFAULT. The words "Event of Default" mean any of the events of
default set forth in this Agreement in the default section of this
Agreement.
GRANTOR. The word "Grantor" means
Advanced Life Sciences Holdings, Inc..
GUARANTOR. The word "Guarantor" means any guarantor, surety, or
accommodation party of any or all of the Indebtedness.
GUARANTY. The word "Guaranty" means the guaranty from Guarantor to Lender,
including without limitation a guaranty of all or part of the Note.
COMMERCIAL PLEDGE AGREEMENT
(Continued) Page 5
INCOME AND PROCEEDS. The words "Income and Proceeds" mean all present and
future income, proceeds, earnings, increases, and substitutions from or for
the Collateral of every kind and nature, including without limitation all
payments, interest, profits, distributions, benefits, rights, options,
warrants, dividends, stock dividends, stock splits, stock rights,
regulatory dividends, subscriptions, monies, claims for money due and to
become due, proceeds of any insurance on the Collateral, shares of stock of
different par value or no par value issued in substitution or exchange for
shares included in the Collateral, and all other property Grantor is
entitled to receive on account of such Collateral, including accounts,
documents, instruments, chattel paper, and general intangibles.
INDEBTEDNESS. The word "Indebtedness" means the indebtedness evidenced by
the Note or Related Documents, including all principal and interest
together with all other indebtedness and costs and expenses for which
Borrower is responsible under this Agreement or under any of the Related
Documents.
LENDER. The word "Lender" means THE LEADERS BANK, its successors and
assigns.
NOTE. The word "Note" means the Note executed by Advanced Life Sciences,
Inc. in the principal amount of $3,000,000.00 dated December 21, 2004,
together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the note or
credit agreement.
OBLIGOR. The word "Obligor" means without limitation any and all persons
obligated to pay money or to perform some other act under the Collateral.
PROPERTY. The word "Property" means all of Grantor's right, title and
interest in and to all the Property as described in the
"Collateral Description" section of this Agreement.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.
BORROWER AND GRANTOR HAVE READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS
COMMERCIAL PLEDGE AGREEMENT AND AGREE TO ITS TERMS. THIS AGREEMENT IS DATED
DECEMBER 21, 2004.
GRANTOR:
ADVANCED LIFE SCIENCES HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------- --------------------------
Xxxx X. Xxxxxx Xxxxxxx X. Xxxxxx
BORROWER:
ADVANCED LIFE SCIENCES, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx, President of Advanced Life
Sciences, Inc.
LEADER:
THE LEADERS BANK
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Authorized Signer
[ILLEGIBLE]
AGREEMENT TO PROVIDE INSURANCE
Borrower: Advanced Life Sciences, Inc. Lender: THE LEADERS BANK
0000 Xxxxx Xxxxx 0000 XXXX XXXX, XXXXX 000
Xxxxxxxxx, XX 00000 XXX XXXXX, XX 00000
Grantor: BioStart Property Group, LLC
0000 Xxxxx Xxxx (Xxxxxxxxxxxxx Xxxxxx)
Xxxxxxxxx, XX 00000
INSURANCE REQUIREMENTS. Grantor, BioStart Property Group, LLC ("Grantor"),
understands that insurance coverage is required in connection with the extending
of a loan or the providing of other financial accommodations to Advanced Life
Sciences, inc. ("Borrower") by Lender. These requirements are set forth in the
security documents for the loan. The following minimum insurance coverages must
be provided on the following described collateral (the "Collateral"):
COLLATERAL: 0000 Xxxxx Xxxxx, Xxxxxxxxx, XX 00000.
TYPE: Fire and extended coverage.
AMOUNT: Full Insurable Value.
BASIS: Replacement value.
ENDORSEMENTS: The Leaders Bank, its successors and/or assigns,;
and further stipulating that coverage will not be cancelled or
diminished without a minimum of 30 days prior written notice to
Lender, and without disclaimer of the insurer's liability for
failure to give such notice.
LATEST DELIVERY DATE: By the loan closing date.
INSURANCE COMPANY. Grantor may obtain insurance from any insurance company
Grantor may choose that is reasonably acceptable to Lender. Grantor understands
that credit may not be denied solely because insurance was not purchased through
Lender.
FLOOD INSURANCE. Flood Insurance for the Collateral securing this loan is
described as follows;
REAL ESTATE AT 0000 XXXXX XXXXX, XXXXXXXXX, XX 00000.
The Collateral securing this loan is not currently located in an area
identified as having special flood hazards. Therefore, no special flood
hazard insurance is necessary at this time. Should the Collateral at any
time be deemed to be located in an area designated by the Director of the
Federal Emergency Management Agency as a special flood hazard area, Grantor
agrees to obtain and maintain Federal Flood Insurance, if available, within
45 days after notice is given by Lender that the Collateral is located in a
special flood hazard area, for the full unpaid balance of the loan and any
prior liens on the property securing the loan, up to the maximum policy
limits set under the National Flood Insurance Program, or as otherwise
required by Lender, and to maintain such insurance for the term of the
loan. Flood insurance may be purchased under the National Flood Insurance
Program or from private insurers.
INSURANCE MAILING ADDRESS. All documents and other materials relating to
insurance for this loan should be mailed, delivered or directed to the following
address:
THE LEADERS XXXX
XXXX XXXXXX XXX 0000
XXX XXXXX, XX 00000-0000
FAILURE TO PROVIDE INSURANCE. Grantor agrees to deliver to Lender, on the latest
delivery date stated above, evidence of the required insurance as provided
above, with an effective date of December 21, 2004, or earlier. UNLESS GRANTOR
PROVIDES LENDER WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY GRANTOR'S
AGREEMENT WITH LENDER, LENDER MAY PURCHASE INSURANCE AT GRANTOR'S EXPENSE TO
PROTECT LENDER'S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT,
PROTECT GRANTOR'S INTERESTS. THE COVERAGE THAT LENDER PURCHASES MAY NOT PAY ANY
CLAIM THAT GRANTOR MAKES, OR ANY CLAIM THAT IS MADE AGAINST GRANTOR IN
CONNECTION WITH THE COLLATERAL. GRANTOR MAY LATER CANCEL ANY INSURANCE PURCHASED
BY LENDER, BUT ONLY AFTER PROVIDING LENDER WITH EVIDENCE THAT GRANTOR HAS
OBTAINED INSURANCE AS REQUIRED BY THEIR AGREEMENT. IF LENDER PURCHASES INSURANCE
FOR THE COLLATERAL, GRANTOR WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE,
INCLUDING INTEREST AND ANY OTHER CHARGES LENDER MAY IMPOSE IN CONNECTION WITH
THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR
EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO
GRANTOR'S TOTAL OUTSTANDING BALANCE OR OBLIGATION. THE COSTS OF THE INSURANCE
MAY BE MORE THAN THE COST OF INSURANCE GRANTOR MAY BE ABLE TO OBTAIN ON
GRANTOR'S OWN.
IN ADDITION, THE INSURANCE MAY NOT PROVIDE ANY PUBLIC LIABILITY OR PROPERTY
DAMAGE INDEMNIFICATION AND MAY NOT MEET THE REQUIREMENTS OF ANY FINANCIAL
RESPONSIBILITY LAWS.
AUTHORIZATION. For purposes of insurance coverage on the Collateral, Grantor
authorizes Lender to provide to any person (including any insurance agent or
company) all information Lender deems appropriate, whether regarding the
Collateral, the loan or other financial accommodations, or both.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS AGREEMENT TO PROVIDE
INSURANCE AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED DECEMBER 21, 2004.
GRANTOR:
BIOSTART PROPERTY GROUP, LLC
XXXXXX VENTURES LLC, MANAGER OF BIOSTART PROPERTY GROUP, LLC
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------- -----------------------------------------------
Xxxxxxx X. Xxxxxx, Member of Xxxxxx Ventures LLC Xxxx X. Xxxxxx, Member of Xxxxxx Ventures LLC
AGREEMENT TO PROVIDE INSURANCE
(Continued) Page 2
FOR LENDER USE ONLY
INSURANCE VERIFICATION
DATE: ___________________ PHONE: _______________
___________________________
AGENTS NAME: ___________________
AGENCY: _____________________________
INSURANCE COMPANY: ___________________________
POLICY NUMBER:
EFFECTIVE DATES: ____________________________________________________________
_____________________________________________________________________________
COMMENTS: ___________________________________________________________________
_____________________________________________________________________________
[ILLEGIBLE]
AGREEMENT TO PROVIDE INSURANCE
Grantor: Advanced Life Sciences, Inc. Lender: THE LEADERS BANK
0000 Xxxxx Xxxxx 0000 XXXX XXXX, XXXXX 000
Xxxxxxxxx, XX 00000 XXX XXXXX, XX 00000
INSURANCE REQUIREMENTS. Grantor, Advanced Life Sciences, Inc. ("Grantor"),
understands that insurance coverage is required in connection with the extending
of a loan or the providing of other financial accommodations to Grantor by
Lender. These requirements are set forth in the security documents for the loan.
The following minimum insurance coverages must be provided on the following
described collateral (the "Collateral"):
COLLATERAL: All Inventory and EquipmentAll.
TYPE: All risks, including fire, theft and liability.
AMOUNT: Full Insurable Value.
BASIS: Replacement value.
ENDORSEMENTS: The Leaders Bank, as loss payee; and further
stipulating that coverage will not be cancelled or diminished
without a minimum of 30 days prior written notice to Lender.
LATEST DELIVERY DATE: By the loan closing date.
INSURANCE COMPANY. Grantor may obtain insurance from any insurance company
Grantor may choose that is reasonably acceptable to Lender. Grantor understands
that credit may not be denied solely because insurance was not purchased through
Lender.
INSURANCE MAILING ADDRESS. All documents and other materials relating to
insurance for this loan should be mailed, delivered or directed to the following
address:
THE LEADERS XXXX
XXXX XXXXXX XXX 0000
XXX XXXXX, XX 00000-0000
FAILURE TO PROVIDE INSURANCE. Grantor agrees to deliver to Lender, on the latest
delivery date stated above, proof of the required insurance as provided above,
with an effective date of December 21, 2004, or earlier. UNLESS GRANTOR PROVIDES
LENDER WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY GRANTOR'S AGREEMENT
WITH LENDER, LENDER MAY PURCHASE INSURANCE AT GRANTOR'S EXPENSE TO PROTECT
LENDER'S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT
GRANTOR'S INTERESTS. THE COVERAGE THAT LENDER PURCHASES MAY NOT PAY ANY CLAIM
THAT GRANTOR MAKES, OR ANY CLAIM THAT IS MADE AGAINST GRANTOR IN CONNECTION WITH
THE COLLATERAL. GRANTOR MAY LATER CANCEL ANY INSURANCE PURCHASED BY LENDER, BUT
ONLY AFTER PROVIDING LENDER WITH EVIDENCE THAT GRANTOR HAS OBTAINED INSURANCE AS
REQUIRED BY THEIR AGREEMENT. IF LENDER PURCHASES INSURANCE FOR THE COLLATERAL,
GRANTOR WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST
AND ANY OTHER CHARGES LENDER MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE
INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE
INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO GRANTOR'S TOTAL
OUTSTANDING BALANCE OR OBLIGATION. THE COSTS OF THE INSURANCE MAY BE MORE THAN
THE COST OF INSURANCE GRANTOR MAY BE ABLE TO OBTAIN ON GRANTOR'S OWN.
IN ADDITION, THE INSURANCE MAY NOT PROVIDE ANY PUBLIC LIABILITY OR PROPERTY
DAMAGE INDEMNIFICATION AND MAY NOT MEET THE REQUIREMENTS OF ANY FINANCIAL
RESPONSIBILITY LAWS.
AUTHORIZATION. For purposes of insurance coverage on the Collateral, Grantor
authorizes Lender to provide to any person (including any insurance agent or
company) all information Lender deems appropriate, whether regarding the
Collateral, the loan or other financial accommodations, or both.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS AGREEMENT TO PROVIDE
INSURANCE AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED DECEMBER 21, 2004.
GRANTOR:
ADVANCED LIFE SCIENCES, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Xxxx X. Xxxxxx, President of Advanced Life
Sciences, Inc.
FOR LENDER USE ONLY
INSURANCE VERIFICATION
DATE: ______________ PHONE _____________
______________________
AGENT'S NAME:___________________
AGENCY: _____________________________
INSURANCE COMPANY: ___________________________
POLICY NUMBER:
EFFECTIVE DATES: __________________________________________________________
___________________________________________________________________________
COMMENTS: _________________________________________________________________
___________________________________________________________________________
[ILLEGIBLE]
COMMERCIAL GUARANTY
Borrower: Advanced Life Sciences, Inc. Lender: THE LEADERS BANK
0000 Xxxxx Xxxxx 0000 XXXX XXXX, XXXXX 000
Xxxxxxxxx, XX 00000 XXX XXXXX, XX 00000
Guarantor: Xxxxxxx X. Xxxxxx
0000 Xxxxx Xxxx Xxxx
Xxxxxx, XX 00000
AMOUNT OF GUARANTY. This is a guaranty of payment of the Note, including without
limitation the principal Note amount of Three Million & 00/100 Dollars
($3,000,000.00).
GUARANTY. For good and valuable consideration, Xxxxxxx X. Xxxxxx ("Guarantor")
absolutely and unconditionally guarantees and promises to pay to THE LEADERS
BANK ("Lender") or its order, on demand, in legal tender of the United States of
America, the Indebtedness (as that term is defined below) of Advanced Life
Sciences, Inc. ("Borrower") to Lender on the terms and conditions set forth in
this Guaranty.
MAXIMUM LIABILITY. The maximum liability of Guarantor under this Guaranty shall
not exceed at any one time the amount of the Indebtedness described herein, plus
all costs and expenses of (A) enforcement of this Guaranty and (B) collection
and sale of any collateral securing this Guaranty.
The above limitation on liability is not a restriction on the amount of the
Indebtedness of Borrower to Lender either in the aggregate or at any one time.
If Lender presently holds one or more guaranties, or hereafter receives
additional guaranties from Guarantor, Lender's rights under all guaranties shall
be cumulative. This Guaranty shall not (unless specifically provided below to
the contrary) affect or invalidate any such other guaranties. Guarantor's
liability will be Guarantor's aggregate liability under the terms of this
Guaranty and any such other unterminated guaranties.
INDEBTEDNESS GUARANTEED. The Indebtedness guaranteed by this Guaranty includes
the Note, including (a) all principal, (b) all interest, (c) all late charges,
(d) all loan fees and loan charges, and (e) all collection costs and expenses
relating to the Note or to any collateral for the Note. Collection costs and
expenses include without limitation all of Lender's attorneys' fees.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender
without the necessity of any acceptance by Lender, or any notice to Guarantor or
to Borrower, and will continue in full force until all Indebtedness shall have
been fully and finally paid and satisfied and all of Guarantor's other
obligations under this Guaranty shall have been performed in full. Release of
any other guarantor or termination of any other guaranty of the Indebtedness
shall not affect the liability of Guarantor under this Guaranty. A revocation
Lender receives from any one or more Guarantors shall not affect the liability
of any remaining Guarantors under this Guaranty. THIS GUARANTY COVERS A
REVOLVING LINE OF CREDIT AND IT IS SPECIFICALLY ANTICIPATED THAT FLUCTUATIONS
WILL OCCUR IN THE AGGREGATE AMOUNT OF INDEBTEDNESS OWING FROM BORROWER TO
LENDER. GUARANTOR SPECIFICALLY ACKNOWLEDGES AND AGREES THAT FLUCTUATIONS IN THE
AMOUNT OF INDEBTEDNESS, EVEN TO ZERO DOLLARS ($ 0.00), SHALL NOT CONSTITUTE A
TERMINATION OF THIS GUARANTY. GUARANTOR'S LIABILITY UNDER THIS GUARANTY SHALL
TERMINATE ONLY UPON (A) TERMINATION IN WRITING BY BORROWER AND LENDER OF THE
LINE OF CREDIT, (B) PAYMENT OF THE INDEBTEDNESS IN FULL IN LEGAL TENDER, AND (C)
PAYMENT IN FULL IN LEGAL TENDER OF ALL OF GUARANTOR'S OTHER OBLIGATIONS UNDER
THIS GUARANTY.
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, without notice
or demand and without lessening Guarantor's liability under this Guaranty, from
time to time: (A) to make one or more additional secured or unsecured loans to
Borrower, to lease equipment or other goods to Borrower, or otherwise to extend
additional credit to Borrower; (B) to alter, compromise, renew, extend,
accelerate, or otherwise change one or more times the time for payment or other
terms of the Indebtedness or any part of the Indebtedness, including increases
and decreases of the rate of interest on the Indebtedness; extensions may be
repeated and may be for longer than the original loan term; (C) to take and hold
security for the payment of this Guaranty or the Indebtedness, and exchange,
enforce, waive, subordinate, fail or decide not to perfect, and release any such
security, with or without the substitution of new collateral; (D) to release,
substitute, agree not to xxx, or deal with any one or more of Borrower's
sureties, endorsers, or other guarantors on any terms or in any manner Lender
may choose; (E) to determine how, when and what application of payments and
credits shall be made on the Indebtedness (F) to apply such security and direct
the order or manner of sale thereof, including without limitation, any
nonjudicial sale permitted by the terms of the controlling security agreement or
deed of trust, as Lender in its discretion may determine; (G) to sell, transfer,
assign or grant participations in all or any part of the Indebtedness; and (H)
to assign or transfer this Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lender that (A) no representations or agreements of any kind have been made to
Guarantor which would limit or qualify in any way the terms of this Guaranty;
(B) this Guaranty is executed at Borrower's request and not at the request of
Lender; (C) Guarantor has full power, right and authority to enter into this
Guaranty; (D) the provisions of this Guaranty do not conflict with or result in
a default under any agreement or other instrument binding upon Guarantor and do
not result in a violation of any law, regulation, court decree or order
applicable to Guarantor; (E) Guarantor has not and will not, without the prior
written consent of Lender, sell, lease, assign, encumber, hypothecate, transfer,
or otherwise dispose of all or substantially all of Guarantor's assets, or any
interest therein; (F) upon Lender's request, Guarantor will provide to Lender
financial and credit information in form acceptable to Lender, and all such
financial information which currently has been, and all future financial
information which will be provided to Lender is and will be true and correct in
all material respects and fairly present Guarantor's financial condition as of
the dates the financial information is provided; (G) no material adverse change
has occurred in Guarantor's financial condition since the date of the most
recent financial statements provided to Lender and no event has occurred which
may materially adversely affect Guarantor's financial condition; (H) no
litigation, claim, investigation, administrative proceeding or similar action
(including those for unpaid taxes) against Guarantor is pending or threatened;
(I) Lender has made no representation to Guarantor as to the creditworthiness of
Borrower; and (J) Guarantor has established adequate means of obtaining from
Borrower on a continuing basis information regarding Borrower's financial
condition. Guarantor agrees to keep adequately informed from such means of any
facts, events, or circumstances which might in any way affect Guarantor's risks
under this Guaranty, and Guarantor further agrees that, absent a request for
information, Lender shall have no obligation to disclose to Guarantor any
information or documents acquired by Lender in the course of its relationship
with Borrower.
GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the
following:
ADDITIONAL REQUIREMENTS. a Personal Financial Statement on Lenders form
provided annually.
All financial reports required to be provided under this Guaranty shall be
prepared in accordance with GAAP, applied on a consistent basis, and certified
by Guarantor as being true and correct.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives
any right to require Lender (A) to continue lending money or to extend other
credit to Borrower; (B) to make any presentment, protest, demand, or notice of
any kind, including notice of any nonpayment of the Indebtedness or of any
nonpayment related to any collateral, or notice of any action or nonaction on
the part of Borrower, Lender, any surety, endorser, or other guarantor in
connection with the Indebtedness or in connection with the creation of new or
additional loans or obligations; (C) to resort for payment or to proceed
directly or at once against any person, including Borrower or any other
guarantor; (D) to proceed directly against or exhaust any collateral held by
Lender from Borrower, any other guarantor, or any other person; (E) to give
notice of the terms, time, and place of any public or private sale of personal
property security held by Lender from Borrower or to comply with any other
applicable provisions of the Uniform Commercial Code; (F) to pursue any other
remedy within Lender's power; or (G) to commit any act or omission of any kind,
or at any time, with respect to any matter whatsoever.
COMMERCIAL GUARANTY
(Continued) Page 2
In addition to the waivers set forth herein, if now or hereafter Borrower is or
shall become insolvent and the Indebtedness shall not at all times until paid be
fully secured by collateral pledged by Borrower, Guarantor hereby forever waives
and gives up in favor of Lender and Borrower, and Lender's and Borrower's
respective successors, any claim or right to payment Guarantor may now have or
hereafter have or acquire against Borrower, by subrogation or otherwise, so that
at no time shall Guarantor be or become a "creditor" of Borrower within the
meaning of 11 U.S.C. section 547(b), or any successor provision of the Federal
bankruptcy laws.
Guarantor also waives any and all rights or defenses arising by reason of (A)
any "one action" or "anti-deficiency" law or any other law which may prevent
Lender from bringing any action, including a claim for deficiency, against
Guarantor, before or after Lender's commencement or completion of any
foreclosure action, either judicially or by exercise of a power of sale; (B) any
election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower
for reimbursement, including without limitation, any loss of rights Guarantor
may suffer by reason of any law limiting, qualifying, or discharging the
Indebtedness; (C) any disability or other defense of Borrower, of any other
guarantor, or of any other person, or by reason of the cessation of Borrower's
liability from any cause whatsoever, other than payment in full in legal tender,
of the Indebtedness; (D) any right to claim discharge of the Indebtedness on the
basis of unjustified impairment of any collateral for the Indebtedness; (E) any
statute of limitations, if at any time any action or suit brought by Lender
against Guarantor is commenced, there is outstanding Indebtedness of Borrower to
Lender which is not barred by any applicable statute of limitations; or (F) any
defenses given to guarantors at law or in equity other than actual payment and
performance of the Indebtedness. If payment is made by Borrower, whether
voluntarily or otherwise, or by any third party, on the Indebtedness and
thereafter Lender is forced to remit the amount of that payment to Borrower's
trustee in bankruptcy or to any similar person under any federal or state
bankruptcy law or law for the relief of debtors, the Indebtedness shall be
considered unpaid for the purpose of the enforcement of this Guaranty.
Guarantor further waives and agrees not to assert or claim at any time any
deductions to the amount guaranteed under this Guaranty for any claim of setoff,
counterclaim, counter demand, recoupment or similar right, whether such claim,
demand or right may be asserted by the Borrower, the Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees
that each of the waivers set forth above is made with Guarantor's full knowledge
of its significance and consequences and that, under the circumstances, the
waivers are reasonable and not contrary to public policy or law. If any such
waiver is determined to be contrary to any applicable law or public policy, such
waiver shall be effective only to the extent permitted by law or public policy.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the
Indebtedness of Borrower to Lender, whether now existing or hereafter created,
shall be superior to any claim that Guarantor may now have or hereafter acquire
against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby
expressly subordinates any claim Guarantor may have against Borrower, upon any
account whatsoever, to any claim that Lender may now or hereafter have against
Borrower. In the event of insolvency and consequent liquidation of the assets of
Borrower, through bankruptcy, by an assignment for the benefit of creditors, by
voluntary liquidation, or otherwise, the assets of Borrower applicable to the
payment of the claims of both Lender and Guarantor shall be paid to Lender and
shall be first applied by Lender to the Indebtedness of Borrower to Lender.
Guarantor does hereby assign to Lender all claims which it may have or acquire
against Borrower or against any assignee or trustee in bankruptcy of Borrower;
provided however, that such assignment shall be effective only for the purpose
of assuring to Lender full payment in legal tender of the Indebtedness. If
Lender so requests, any notes or credit agreements now or hereafter evidencing
any debts or obligations of Borrower to Guarantor shall be marked with a legend
that the same are subject to this Guaranty and shall be delivered to Lender.
Guarantor agrees, and Lender is hereby authorized, in the name of Guarantor,
from time to time to file financing statements and continuation statements and
to execute documents and to take such other actions as Lender deems necessary or
appropriate to perfect, preserve and enforce its rights under this Guaranty.
CONFESSION OF JUDGMENT. Guarantor hereby irrevocably authorizes and empowers any
attorney-at-law to appear in any court of record and to confess judgment against
Guarantor for the unpaid amount of this Guaranty as evidenced by an affidavit
signed by an officer of Lender setting forth the amount then due, attorneys'
fees plus costs of suit, and to release all errors, and waive all rights of
appeal. If a copy of this Guaranty, verified by an affidavit, shall have been
filed in the proceeding, it will not be necessary to file the original as a
warrant of attorney. Guarantor waives the right to any stay of execution and the
benefit of all exemption laws now or hereafter in effect. No single exercise of
the foregoing warrant and power to confess judgment will be deemed to exhaust
the power, whether or not any such exercise shall be held by any court to be
invalid, voidable, or void; but the power will continue undiminished and may be
exercised from time to time as Lender may elect until all amounts owing on this
Guaranty have been paid in full. Guarantor hereby waives and releases any and
all claims or causes of action which Guarantor might have against any attorney
acting under the terms of authority which Guarantor has granted herein arising
out of or connected with the confession of judgement hereunder.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Guaranty:
AMENDMENTS. This Guaranty, together with any Related Documents, constitutes
the entire understanding and agreement of the parties as to the matters set
forth in this Guaranty. No alteration of or amendment to this Guaranty
shall be effective unless given in writing and signed by the party or
parties sought to be charged or bound by the alteration or amendment.
ATTORNEYS' FEES; EXPENSES. Guarantor agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Guaranty. Lender may hire or pay someone else to help enforce this
Guaranty, and Guarantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's attorneys' fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and
legal expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. Guarantor also shall pay all court costs
and such additional fees as may be directed by the court.
CAPTION HEADINGS. Caption headings in this Guaranty are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Guaranty.
GOVERNING LAW. THIS GUARANTY WILL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF ILLINOIS. THIS
GUARANTY HAS BEEN ACCEPTED BY LENDER IN THE STATE OF ILLINOIS.
CHOICE OF VENUE. If there is a lawsuit, Guarantor agrees upon Lender's
request to submit to the jurisdiction of the courts of DU PAGE County,
State of Illinois.
INTEGRATION. Guarantor further agrees that Guarantor has read and fully
understands the terms of this Guaranty; Guarantor has had the opportunity
to be advised by Guarantor's attorney with respect to this Guaranty; the
Guaranty fully reflects Guarantor's intentions and parol evidence is not
required to interpret the terms of this Guaranty. Guarantor hereby
indemnifies and holds Lender harmless from all losses, claims, damages, and
costs (including Lender's attorneys' fees) suffered or incurred by Lender
as a result of any breach by Guarantor of the warranties, representations
and agreements of this paragraph.
INTERPRETATION. In all cases where there is more than one Borrower or
Guarantor, then all words used in this Guaranty in the singular shall be
deemed to have been used in the plural where the context and construction
so require; and where there is more than one Borrower named in this
Guaranty or when this Guaranty is executed by more than one Guarantor, the
words "Borrower" and "Guarantor" respectively shall mean all and any one or
more of them. The words "Guarantor," "Borrower," and "Lender" include the
heirs, successors, assigns, and transferees of each of them. If a court
finds that any provision of this Guaranty is not valid or should not be
enforced, that fact by itself will not mean that the rest of this
COMMERCIAL GUARANTY
(Continued) Page 3
Guaranty will not be valid or enforced. Therefore, a court will enforce the
rest of the provisions of this Guaranty even if a provision of this
Guaranty may be found to be invalid or unenforceable. If any one or more of
Borrower or Guarantor are corporations, partnerships, limited liability
companies, or similar entities, it is not necessary for Lender to inquire
into the powers of Borrower or Guarantor or of the officers, directors,
partners, managers, or other agents acting or purporting to act on their
behalf, and any indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed under this Guaranty.
NOTICES. Any notice required to be given under this Guaranty shall be given
in writing, and shall be effective when actually delivered, when actually
received by telefacsimile (unless otherwise required by law), when
deposited with a nationally recognized overnight courier, or, if mailed,
when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near the
beginning of this Guaranty. Any party may change its address for notices
under this Guaranty by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party's address.
For notice purposes, Guarantor agrees to keep Lender informed at all times
of Guarantor's current address. Unless otherwise provided or required by
law, if there is more than one Guarantor, any notice given by Lender to any
Guarantor is deemed to be notice given to all Guarantors.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any rights
under this Guaranty unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Guaranty shall not prejudice or constitute a
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Guaranty. No prior waiver by
Lender, nor any course of dealing between Lender and Guarantor, shall
constitute a waiver of any of Lender's rights or of any of Guarantor's
obligations as to any future transactions. Whenever the consent of Lender
is required under this Guaranty, the granting of such consent by Lender in
any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may
be granted or withheld in the sole discretion of Lender.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this Guaranty
on transfer of Guarantor's interest, this Guaranty shall be binding upon
and inure to the benefit of the parties, their successors and assigns.
WAIVE JURY. LENDER AND GUARANTOR HEREBY WAIVE THE RIGHT TO ANY JURY TRIAL
IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER LENDER OR
BORROWER AGAINST THE OTHER.
THE FOLLOWING NOTICE IS REQUIRED BY ILLINOIS LAW: UNLESS GUARANTOR PROVIDES
LENDER WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY GUARANTOR'S AGREEMENT
WITH LENDER, LENDER MAY PURCHASE INSURANCE AT GUARANTOR'S EXPENSE TO PROTECT
LENDER'S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT
GUARANTOR'S INTERESTS. THE COVERAGE THAT LENDER PURCHASES MAY NOT PAY ANY CLAIM
THAT GUARANTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST GUARANTOR IN CONNECTION
WITH THE COLLATERAL. GUARANTOR MAY LATER CANCEL ANY INSURANCE PURCHASED BY
LENDER, BUT ONLY AFTER PROVIDING LENDER WITH EVIDENCE THAT GUARANTOR HAS
OBTAINED INSURANCE AS REQUIRED BY THEIR AGREEMENT. IF LENDER PURCHASES INSURANCE
FOR THE COLLATERAL, GUARANTOR WILL BE RESPONSIBLE FOR THE COSTS OF THAT
INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES LENDER MAY IMPOSE IN
CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE
CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE
ADDED TO GUARANTOR'S TOTAL OUTSTANDING BALANCE OR OBLIGATION. THE COSTS OF THE
INSURANCE MAY BE MORE THAN THE COST OF INSURANCE GUARANTOR MAY BE ABLE TO OBTAIN
ON GUARANTOR'S OWN.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Guaranty. Unless specifically stated to the contrary,
all references to dollar amounts shall mean amounts in lawful money of the
United States of America. Words and terms used in the singular shall include the
plural, and the plural shall include the singular, as the context may require.
Words and terms not otherwise defined in this Guaranty shall have the meanings
attributed to such terms in the Uniform Commercial Code:
BORROWER. The word "Borrower" means Advanced Life Sciences, Inc. and
includes all co-signers and co-makers signing the Note.
GAAP. The word "GAAP" means generally accepted accounting principles.
GUARANTOR. The word "Guarantor" means each and every person or entity
signing this Guaranty, including without limitation Xxxxxxx X. Xxxxxx.
GUARANTY. The word "Guaranty" means the guaranty from Guarantor to Lender,
including without limitation a guaranty of all or part of the Note.
INDEBTEDNESS. The word "Indebtedness" means Borrower's indebtedness to
Lender as more particularly described in this Guaranty.
LENDER. The word "Lender" means THE LEADERS BANK, its successors and
assigns.
NOTE. The word "Note" means the promissory note dated December 21, 2004, in
the original principal amount of $3,000,000.00 from Borrower to Lender,
together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the promissory
note or agreement.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT
THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS
GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE
MANNER SET FORTH IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAL
ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY
IS DATED DECEMBER 21, 2004.
GUARANTOR:
X /s/ Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx
COMMERCIAL GUARANTY
(Continued) Page 4
INDIVIDUAL ACKNOWLEDGMENT
STATE OF _______________________ )
)SS
COUNTY OF ______________________ )
On this day before me, the undersigned Notary Public, personally appeared
Xxxxxxx X. Xxxxxx, to me known to be the individual described in and who
executed the Commercial Guaranty, and acknowledged that he or she signed the
Guaranty as his or her free and voluntary act and deed, for the uses and
purposes therein mentioned.
GIVEN UNDER MY HAND AND OFFICIAL SEAL THIS _________________ DAY OF ____________
________________, 20______.
BY ______________________________________ RESIDING AT __________________________
NOTARY PUBLIC IN AND FOR THE STATE OF _____________________
MY COMMISSION EXPIRES _____________________________________
[ILLEGIBLE]
COMMERCIAL GUARANTY
Borrower: Advanced Life Sciences, Inc. Lender: THE LEADERS BANK
0000 Xxxxx Xxxxx 0000 XXXX XXXX, XXXXX 000
Xxxxxxxxx, XX 00000 XXX XXXXX, XX 00000
Guarantor: XXXXXX VENTURES LLC
0000 Xxxxx Xxxx (Xxxxxxxxxxxxx Xxxxxx)
Xxxxxxxxx, XX 00000
AMOUNT OF GUARANTY. This is a guaranty of payment of the Note, including without
limitation the principal Note amount of Three Million & 00/100 Dollars
($3,000,000.00).
GUARANTY. For good and valuable consideration, Xxxxxx Ventures LLC ("Guarantor")
absolutely and unconditionally guarantees and promises to pay to THE LEADERS
BANK ("Lender") or its order, on demand, in legal tender of the United States of
America, the Indebtedness (as that term is defined below) of Advanced Life
Sciences, Inc. ("Borrower") to Lender on the terms and conditions set forth in
this Guaranty.
MAXIMUM LIABILITY. The maximum liability of Guarantor under this Guaranty shall
not exceed at any one time the amount of the Indebtedness described herein, plus
all costs and expenses of (A) enforcement of this Guaranty and (B) collection
and sale of any collateral securing this Guaranty.
The above limitation on liability is not a restriction on the amount of the
Indebtedness of Borrower to Lender either in the aggregate or at any one time.
If Lender presently holds one or more guaranties, or hereafter receives
additional guaranties from Guarantor, Lender's rights under all guaranties shall
be cumulative. This Guaranty shall not (unless specifically provided below to
the contrary) affect or invalidate any such other guaranties. Guarantor's
liability will be Guarantor's aggregate liability under the terms of this
Guaranty and any such other unterminated guaranties.
INDEBTEDNESS GUARANTEED. The Indebtedness guaranteed by this Guaranty includes
the Note, including (a) all principal, (b) all interest, (c) all late charges,
(d) all loan fees and loan charges, and (e) all collection costs and expenses
relating to the Note or to any collateral for the Note. Collection costs and
expenses include without limitation all of Lender's attorneys' fees.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender
without the necessity of any acceptance by Lender, or any notice to Guarantor or
to Borrower, and will continue in full force until all Indebtedness shall have
been fully and finally paid and satisfied and all of Guarantor's other
obligations under this Guaranty shall have been performed in full. Release of
any other guarantor or termination of any other guaranty of the Indebtedness
shall not affect the liability of Guarantor under this Guaranty. A revocation
Lender receives from any one or more Guarantors shall not affect the liability
of any remaining Guarantors under this Guaranty. This Guaranty covers a
revolving line of credit and it is specifically anticipated that fluctuations
will occur in the aggregate amount of Indebtedness owing from Borrower to
Lender. Guarantor specifically acknowledges and agrees that fluctuations in the
amount of Indebtedness, even to zero dollars ($ 0.00), shall not constitute a
termination of this Guaranty. Guarantor's liability under this Guaranty shall
terminate only upon (A) termination in writing by Borrower and Lender of the
line of credit, (B) payment of the Indebtedness in full in legal tender, and (C)
payment in full in legal tender of all of Guarantor's other obligations under
this Guaranty.
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, without notice
or demand and without lessening Guarantor's liability under this Guaranty, from
time to time: (A) to make one or more additional secured or unsecured loans to
Borrower, to lease equipment or other goods to Borrower, or otherwise to extend
additional credit to Borrower; (B) to alter, compromise, renew, extend,
accelerate, or otherwise change one or more times the time for payment or other
terms of the Indebtedness or any part of the Indebtedness, including increases
and decreases of the rate of interest on the Indebtedness; extensions may be
repeated and may be for longer than the original loan term; (C) to take and hold
security for the payment of this Guaranty or the Indebtedness, and exchange,
enforce, waive, subordinate, fail or decide not to perfect, and release any such
security, with or without the substitution of new collateral; (D) to release,
substitute, agree not to xxx, or deal with any one or more of Borrower's
sureties, endorsers, or other guarantors on any terms or in any manner Lender
may choose; (E) to determine how, when and what application of payments and
credits shall be made on the Indebtedness (F) to apply such security and direct
the order or manner of sale thereof, including without limitation, any
nonjudicial sale permitted by the terms of the controlling security agreement or
deed of trust, as Lender in its discretion may determine; (G) to sell, transfer,
assign or grant participations in all or any part of the Indebtedness; and (H)
to assign or transfer this Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lender that (A) no representations or agreements of any kind have been made to
Guarantor which would limit or qualify in any way the terms of this Guaranty;
(B) this Guaranty is executed at Borrower's request and not at the request of
Lender; (C) Guarantor has full power, right and authority to enter into this
Guaranty; (D) the provisions of this Guaranty do not conflict with or result in
a default under any agreement or other instrument binding upon Guarantor and do
not result in a violation of any law, regulation, court decree or order
applicable to Guarantor; (E) Guarantor has not and will not, without the prior
written consent of Lender, sell, lease, assign, encumber, hypothecate, transfer,
or otherwise dispose of all or substantially all of Guarantor's assets, or any
interest therein; (F) upon Lender's request, Guarantor will provide to Lender
financial and credit information in form acceptable to Lender, and all such
financial information which currently has been, and all future financial
information which will be provided to Lender is and will be true and correct in
all material respects and fairly present Guarantor's financial condition as of
the dates the financial information is provided; (G) no material adverse change
has occurred in Guarantor's financial condition since the date of the most
recent financial statements provided to Lender and no event has occurred which
may materially adversely affect Guarantor's financial condition; (H) no
litigation, claim, investigation, administrative proceeding or similar action
(including those for unpaid taxes) against Guarantor is pending or threatened;
(I) Lender has made no representation to Guarantor as to the creditworthiness of
Borrower; and (J) Guarantor has established adequate means of obtaining from
Borrower on a continuing basis information regarding Borrower's financial
condition. Guarantor agrees to keep adequately informed from such means of any
facts, events, or circumstances which might in any way affect Guarantor's risks
under this Guaranty, and Guarantor further agrees that, absent a request for
information, Lender shall have no obligation to disclose to Guarantor any
information or documents acquired by Lender in the course of its relationship
with Borrower.
GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the
following:
ANNUAL STATEMENTS. As soon as available after the end of each fiscal year,
Guarantor's balance sheet and income statement for the year ended, prepared
by Guarantor in form satisfactory to Lender.
All financial reports required to be provided under this Guaranty shall be
prepared in accordance with GAAP, applied on a consistent basis, and certified
by Guarantor as being true and correct.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives
any right to require Lender (A) to continue lending money or to extend other
credit to Borrower; (B) to make any presentment, protest, demand, or notice of
any kind, including notice of any nonpayment of the Indebtedness or of any
nonpayment related to any collateral, or notice of any action or nonaction on
the part of Borrower, Lender, any surety, endorser, or other guarantor in
connection with the Indebtedness or in connection with the creation of new or
additional loans or obligations; (C) to resort for payment or to proceed
directly or at once against any person, including Borrower or any other
guarantor; (D) to proceed directly against or exhaust any collateral held by
Lender from Borrower, any other guarantor, or any other person; (E) to give
notice of the terms, time, and place of any public or private sale of personal
property security held by Lender from Borrower or to comply with any other
applicable provisions of the Uniform Commercial Code; (F) to pursue any other
remedy within Lender's power; or (G) to commit any act or omission of any kind,
or at any time, with respect to any matter whatsoever.
COMMERCIAL GUARANTY
(Continued) Page 2
In addition to the waivers set forth herein, if now or hereafter Borrower is or
shall become insolvent and the Indebtedness shall not at all times until paid be
fully secured by collateral pledged by Borrower, Guarantor hereby forever waives
and gives up in favor of Lender and Borrower, and Lender's and Borrower's
respective successors, any claim or right to payment Guarantor may now have or
hereafter have or acquire against Borrower, by subrogation or otherwise, so that
at no time shall Guarantor be or become a "creditor" of Borrower within the
meaning of 11 U.S.C. section 547(b), or any successor provision of the Federal
bankruptcy laws.
Guarantor also waives any and all rights or defenses arising by reason of (A)
any "one action" or "anti-deficiency" law or any other law which may prevent
Lender from bringing any action, including a claim for deficiency, against
Guarantor, before or after Lender's commencement or completion of any
foreclosure action, either judicially or by exercise of a power of sale; (B) any
election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower
for reimbursement, including without limitation, any loss of rights Guarantor
may suffer by reason of any law limiting, qualifying, or discharging the
Indebtedness; (C) any disability or other defense of Borrower, of any other
guarantor, or of any other person, or by reason of the cessation of Borrower's
liability from any cause whatsoever, other than payment in full in legal tender,
of the Indebtedness; (D) any right to claim discharge of the Indebtedness on the
basis of unjustified impairment of any collateral for the Indebtedness; (E) any
statute of limitations, if at any time any action or suit brought by Lender
against Guarantor is commenced, there is outstanding Indebtedness of Borrower to
Lender which is not barred by any applicable statute of limitations; or (F) any
defenses given to guarantors at law or in equity other than actual payment and
performance of the Indebtedness. If payment is made by Borrower, whether
voluntarily or otherwise, or by any third party, on the Indebtedness and
thereafter Lender is forced to remit the amount of that payment to Borrower's
trustee in bankruptcy or to any similar person under any federal or state
bankruptcy law or law for the relief of debtors, the Indebtedness shall be
considered unpaid for the purpose of the enforcement of this Guaranty.
Guarantor further waives and agrees not to assert or claim at any time any
deductions to the amount guaranteed under this Guaranty for any claim of setoff,
counterclaim, counter demand, recoupment or similar right, whether such claim,
demand or right may be asserted by the Borrower, the Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees
that each of the waivers set forth above is made with Guarantor's full knowledge
of its significance and consequences and that, under the circumstances, the
waivers are reasonable and not contrary to public policy or law. If any such
waiver is determined to be contrary to any applicable law or public policy, such
waiver shall be effective only to the extent permitted by law or public policy.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the
Indebtedness of Borrower to Lender, whether now existing or hereafter created,
shall be superior to any claim that Guarantor may now have or hereafter acquire
against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby
expressly subordinates any claim Guarantor may have against Borrower, upon any
account whatsoever, to any claim that Lender may now or hereafter have against
Borrower. In the event of insolvency and consequent liquidation of the assets of
Borrower, through bankruptcy, by an assignment for the benefit of creditors, by
voluntary liquidation, or otherwise, the assets of Borrower applicable to the
payment of the claims of both Lender and Guarantor shall be paid to Lender and
shall be first applied by Lender to the Indebtedness of Borrower to Lender.
Guarantor does hereby assign to Lender all claims which it may have or acquire
against Borrower or against any assignee or trustee in bankruptcy of Borrower;
provided however, that such assignment shall be effective only for the purpose
of assuring to Lender full payment in legal tender of the Indebtedness. If
Lender so requests, any notes or credit agreements now or hereafter evidencing
any debts or obligations of Borrower to Guarantor shall be marked with a legend
that the same are subject to this Guaranty and shall be delivered to Lender.
Guarantor agrees, and Lender is hereby authorized, in the name of Guarantor,
from time to time to file financing statements and continuation statements and
to execute documents and to take such other actions as Lender deems necessary or
appropriate to perfect, preserve and enforce its rights under this Guaranty.
CONFESSION OF JUDGMENT. Guarantor hereby irrevocably authorizes and empowers any
attorney-at-law to appear in any court of record and to confess judgment against
Guarantor for the unpaid amount of this Guaranty as evidenced by an affidavit
signed by an officer of Lender setting forth the amount then due, attorneys'
fees plus costs of suit, and to release all errors, and waive all rights of
appeal. If a copy of this Guaranty, verified by an affidavit, shall have been
filed in the proceeding, it will not be necessary to file the original as a
warrant of attorney. Guarantor waives the right to any stay of execution and the
benefit of all exemption laws now or hereafter in effect. No single exercise of
the foregoing warrant and power to confess judgment will be deemed to exhaust
the power, whether or not any such exercise shall be held by any court to be
invalid, voidable, or void; but the power will continue undiminished and may be
exercised from time to time as Lender may elect until all amounts owing on this
Guaranty have been paid in full. Guarantor hereby waives and releases any and
all claims or causes of action which Guarantor might have against any attorney
acting under the terms of authority which Guarantor has granted herein arising
out of or connected with the confession of judgement hereunder.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Guaranty:
AMENDMENTS. This Guaranty, together with any Related Documents, constitutes
the entire understanding and agreement of the parties as to the matters set
forth in this Guaranty. No alteration of or amendment to this Guaranty
shall be effective unless given in writing and signed by the party or
parties sought to be charged or bound by the alteration or amendment.
ATTORNEYS' FEES; EXPENSES. Guarantor agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Guaranty. Lender may hire or pay someone else to help enforce this
Guaranty, and Guarantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's attorneys' fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and
legal expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. Guarantor also shall pay all court costs
and such additional fees as may be directed by the court.
CAPTION HEADINGS. Caption headings in this Guaranty are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Guaranty.
GOVERNING LAW. This Guaranty will be governed by, construed and enforced in
accordance with federal law and the laws of the State of Illinois. This
Guaranty has been accepted by Lender in the State of Illinois.
CHOICE OF VENUE. If there is a lawsuit, Guarantor agrees upon Lender's
request to submit to the jurisdiction of the courts of DU PAGE County,
State of Illinois.
INTEGRATION. Guarantor further agrees that Guarantor has read and fully
understands the terms of this Guaranty; Guarantor has had the opportunity
to be advised by Guarantor's attorney with respect to this Guaranty; the
Guaranty fully reflects Guarantor's intentions and parol evidence is not
required to interpret the terms of this Guaranty. Guarantor hereby
indemnifies and holds Lender harmless from all losses, claims, damages, and
costs (including Lender's attorneys' fees) suffered or incurred by Lender
as a result of any breach by Guarantor of the warranties, representations
and agreements of this paragraph.
INTERPRETATION. In all cases where there is more than one Borrower or
Guarantor, then all words used in this Guaranty in the singular shall be
deemed to have been used in the plural where the context and construction
so require; and where there is more than one Borrower named in this
Guaranty or when this Guaranty is executed by more than one Guarantor, the
words "Borrower" and "Guarantor" respectively shall mean all and any one or
more of them. The words "Guarantor," "Borrower," and "Lender" include the
heirs, successors, assigns, and transferees of each of them. If a court
finds that any provision of this Guaranty is not valid or should not be
enforced, that fact by itself will not mean that the rest of this
COMMERCIAL GUARANTY
(Continued) Page 3
Guaranty will not be valid or enforced. Therefore, a court will enforce the
rest of the provisions of this Guaranty even if a provision of this
Guaranty may be found to be invalid or unenforceable. If any one or more of
Borrower or Guarantor are corporations, partnerships, limited liability
companies, or similar entities, it is not necessary for Lender to inquire
into the powers of Borrower or Guarantor or of the officers, directors,
partners, managers, or other agents acting or purporting to act on their
behalf, and any indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed under this Guaranty.
NOTICES. Any notice required to be given under this Guaranty shall be given
in writing, and shall be effective when actually delivered, when actually
received by telefacsimile (unless otherwise required by law), when
deposited with a nationally recognized overnight courier, or, if mailed,
when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near the
beginning of this Guaranty. Any party may change its address for notices
under this Guaranty by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party's address.
For notice purposes, Guarantor agrees to keep Lender informed at all times
of Guarantor's current address. Unless otherwise provided or required by
law, if there is more than one Guarantor, any notice given by Lender to any
Guarantor is deemed to be notice given to all Guarantors.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any rights
under this Guaranty unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Guaranty shall not prejudice or constitute a
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Guaranty. No prior waiver by
Lender, nor any course of dealing between Lender and Guarantor, shall
constitute a waiver of any of Lender's rights or of any of Guarantor's
obligations as to any future transactions. Whenever the consent of Lender
is required under this Guaranty, the granting of such consent by Lender in
any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may
be granted or withheld in the sole discretion of Lender.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this Guaranty
on transfer of Guarantor's interest, this Guaranty shall be binding upon
and inure to the benefit of the parties, their successors and assigns.
WAIVE JURY. Lender and Guarantor hereby waive the right to any jury trial
in any action, proceeding, or counterclaim brought by either Lender or
Borrower against the other.
THE FOLLOWING NOTICE IS REQUIRED BY ILLINOIS LAW: UNLESS GUARANTOR PROVIDES
LENDER WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY GUARANTOR'S AGREEMENT
WITH LENDER, LENDER MAY PURCHASE INSURANCE AT GUARANTOR'S EXPENSE TO PROTECT
LENDER'S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT
GUARANTOR'S INTERESTS. THE COVERAGE THAT LENDER PURCHASES MAY NOT PAY ANY CLAIM
THAT GUARANTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST GUARANTOR IN CONNECTION
WITH THE COLLATERAL. GUARANTOR MAY LATER CANCEL ANY INSURANCE PURCHASED BY
LENDER, BUT ONLY AFTER PROVIDING LENDER WITH EVIDENCE THAT GUARANTOR HAS
OBTAINED INSURANCE AS REQUIRED BY THEIR AGREEMENT. IF LENDER PURCHASES INSURANCE
FOR THE COLLATERAL, GUARANTOR WILL BE RESPONSIBLE FOR THE COSTS OF THAT
INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES LENDER MAY IMPOSE IN
CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE
CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE
ADDED TO GUARANTOR'S TOTAL OUTSTANDING BALANCE OR OBLIGATION. THE COSTS OF THE
INSURANCE MAY BE MORE THAN THE COST OF INSURANCE GUARANTOR MAY BE ABLE TO OBTAIN
ON GUARANTOR'S OWN.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Guaranty. Unless specifically stated to the contrary,
all references to dollar amounts shall mean amounts in lawful money of the
United States of America. Words and terms used in the singular shall include the
plural, and the plural shall include the singular, as the context may require.
Words and terms not otherwise defined in this Guaranty shall have the meanings
attributed to such terms in the Uniform Commercial Code:
BORROWER. The word "Borrower" means Advanced Life Sciences, Inc. and
includes all co-signers and co-makers signing the Note.
GAAP. The word "GAAP" means generally accepted accounting principles.
GUARANTOR. The word "Guarantor" means each and every person or entity
signing this Guaranty, including without limitation Xxxxxx Ventures LLC.
GUARANTY. The word "Guaranty" means the guaranty from Guarantor to Lender,
including without limitation a guaranty of all or part of the Note.
INDEBTEDNESS. The word "Indebtedness" means Borrower's indebtedness to
Lender as more particularly described in this Guaranty.
LENDER. The word "Lender" means THE LEADERS BANK, its successors and
assigns.
NOTE. The word "Note" means the promissory note dated December 21, 2004, in
the original principal amount of $3,000,000.00 from Borrower to Lender,
together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the promissory
note or agreement.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT
THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS
GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE
MANNER SET FORTH IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAL
ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY
IS DATED DECEMBER 21, 2004.
GUARANTOR:
XXXXXX VENTURES LLC
By: /s/ Xxxxxxx X. Xxxxxx By:/s/ Xxxx X. Xxxxxx
---------------------------------------------------- ------------------------------------------------
Xxxxxxx X. Xxxxxx, Memeber of Xxxxxx Ventures LLC Xxxx X. Xxxxxx, Member of Xxxxxx Ventures LLC
COMMERCIAL GUARANTY
(Continued) Page 4
LIMITED LIABILITY COMPANY ACKNOWLEDGMENT
STATE OF ______________________ )
)SS
COUNTY OF _____________________ )
On this_____________________day of______________________________,___________
before me, the undersigned Notary Public, personally appeared Xxxxxxx X. Xxxxxx,
Member; Xxxx X. Xxxxxx, Member of Xxxxxx Ventures LLC, and known to me to be
members or designated agents of the limited liability company that executed the
Commercial Guaranty and acknowledged the Guaranty to be the free and voluntary
act and deed of the limited liability company, by authority of statute, its
articles of organization or its operating agreement, for the uses and purposes
therein mentioned, and on oath stated that they are authorized to execute this
Guaranty and in fact executed the Guaranty on behalf of the limited liability
company.
BY _________________________________________________________ RESIDING AT ____________________
NOTARY PUBLIC IN AND FOR THE STATE OF ______________________
MY COMMISSION EXPIRES ______________________________________
[ILLEGIBLE]
COMMERCIAL GUARANTY
Borrower: Advanced Life Sciences, Inc. Lender: THE XXXXXXX BANK
0000 Xxxxx Xxxxx 2001 YORK ROAD, SUITE 150
Woodridge, 1L 00000 XXX XXXXX, XX 00000
Guarantor: Xxxx X. Xxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000-0000
AMOUNT OF GUARANTY. This is a guaranty of payment of the Note, including without
limitation the principal Note amount of Three Million & 00/100 Dollars
($3,000,000.00).
GUARANTY. For good and valuable consideration, Xxxx X. Xxxxxx ("Guarantor")
absolutely and unconditionally guarantees and promises to pay to THE LEADERS
BANK ("Lender") or its order, on demand, in legal tender of the United States of
America, the Indebtedness (as that term is defined below) of Advanced Life
Sciences, Inc. ("Borrower") to Lender on the terms and conditions set forth in
this Guaranty.
MAXIMUM LIABILITY. The maximum liability of Guarantor under this Guaranty shall
not exceed at any one time the amount of the Indebtedness described herein, plus
all costs and expenses of (A) enforcement of this Guaranty and (B) collection
and sale of any collateral securing this Guaranty.
The above limitation on liability is not a restriction on the amount of the
Indebtedness of Borrower to Lender either in the aggregate or at any one time.
If Lender presently holds one or more guaranties, or hereafter receives
additional guaranties from Guarantor, Lender's rights under all guaranties shall
be cumulative. This Guaranty shall not (unless specifically provided below to
the contrary) affect or invalidate any such other guaranties. Guarantor's
liability will be Guarantor's aggregate liability under the terms of this
Guaranty and any such other unterminated guaranties.
INDEBTEDNESS GUARANTEED. The Indebtedness guaranteed by this Guaranty includes
the Note, including (a) all principal, (b) all interest, (c) all late charges,
(d) all loan fees and loan charges, and (e) all collection costs and expenses
relating to the Note or to any collateral for the Note. Collection costs and
expenses include without limitation all of Lender's attorneys' fees.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender
without the necessity of any acceptance by Lender, or any notice to Guarantor or
to Borrower, and will continue in full force until all Indebtedness shall have
been fully and finally paid and satisfied and all of Guarantor's other
obligations under this Guaranty shall have been performed in full. Release of
any other guarantor or termination of any other guaranty of the Indebtedness
shall not affect the liability of Guarantor under this Guaranty. A revocation
Lender receives from any one or more Guarantors shall not affect the liability
of any remaining Guarantors under this Guaranty. This Guaranty covers a
revolving line of credit and it is specifically anticipated that fluctuations
will occur in the aggregate amount of Indebtedness owing from Borrower to
Lender. Guarantor specifically acknowledges and agrees that fluctuations in the
amount of Indebtedness, even to zero dollars ($ 0.00), shall not constitute a
termination of this Guaranty. Guarantor's liability under this Guaranty shall
terminate only upon (A) termination in writing by Borrower and Lender of the
line of credit, (B) payment of the Indebtedness in full in legal tender, and (C)
payment in full in legal tender of all of Guarantor's other obligations under
this Guaranty.
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, without notice
or demand and without lessening Guarantor's liability under this Guaranty, from
time to time: (A) to make one or more additional secured or unsecured loans to
Borrower, to lease equipment or other goods to Borrower, or otherwise to extend
additional credit to Borrower; (B) to alter, compromise, renew, extend,
accelerate, or otherwise change one or more times the time for payment or other
terms of the Indebtedness or any part of the Indebtedness, including increases
and decreases of the rate of interest on the Indebtedness; extensions may be
repeated and may be for longer than the original loan term; (C) to take and hold
security for the payment of this Guaranty or the Indebtedness, and exchange,
enforce, waive, subordinate, fail or decide not to perfect, and release any such
security, with or without the substitution of new collateral; (D) to release,
substitute, agree not to xxx, or deal with any one or more of Borrower's
sureties, endorsers, or other guarantors on any terms or in any manner Lender
may choose; (E) to determine how, when and what application of payments and
credits shall be made on the Indebtedness (F) to apply such security and direct
the order or manner of sale thereof, including without limitation, any
nonjudicial sale permitted by the terms of the controlling security agreement or
deed of trust, as Lender in its discretion may determine; (G) to sell, transfer,
assign or grant participations in all or any part of the Indebtedness; and (H)
to assign or transfer this Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lender that (A) no representations or agreements of any kind have been made to
Guarantor which would limit or qualify in any way the terms of this Guaranty;
(B) this Guaranty is executed at Borrower's request and not at the request of
Lender; (C) Guarantor has full power, right and authority to enter into this
Guaranty; (D) the provisions of this Guaranty do not conflict with or result in
a default under any agreement or other instrument binding upon Guarantor and do
not result in a violation of any law, regulation, court decree or order
applicable to Guarantor; (E) Guarantor has not and will not, without the prior
written consent of Lender, sell, lease, assign, encumber, hypothecate, transfer,
or otherwise dispose of all or substantially all of Guarantor's assets, or any
interest therein; (F) upon Lender's request, Guarantor will provide to Lender
financial and credit information in form acceptable to Lender, and all such
financial information which currently has been, and all future financial
information which will be provided to Lender is and will be true and correct in
all material respects and fairly present Guarantor's financial condition as of
the dates the financial information is provided; (G) no material adverse change
has occurred in Guarantor's financial condition since the date of the most
recent financial statements provided to Lender and no event has occurred which
may materially adversely affect Guarantor's financial condition; (H) no
litigation, claim, investigation, administrative proceeding or similar action
(including those for unpaid taxes) against Guarantor is pending or threatened;
(I) Lender has made no representation to Guarantor as to the creditworthiness of
Borrower; and (J) Guarantor has established adequate means of obtaining from
Borrower on a continuing basis information regarding Borrower's financial
condition. Guarantor agrees to keep adequately informed from such means of any
facts, events, or circumstances which might in any way affect Guarantor's risks
under this Guaranty, and Guarantor further agrees that, absent a request for
information, Lender shall have no obligation to disclose to Guarantor any
information or documents acquired by Lender in the course of its relationship
with Borrower.
GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the
following:
ADDITIONAL REQUIREMENTS. a Personal Financial Statement on Lenders form
provided annually.
All financial reports required to be provided under this Guaranty shall be
prepared in accordance with GAAP, applied on a consistent basis, and certified
by Guarantor as being true and correct.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives
any right to require Lender (A) to continue lending money or to extend other
credit to Borrower; (B) to make any presentment, protest, demand, or notice of
any kind, including notice of any nonpayment of the Indebtedness or of any
nonpayment related to any collateral, or notice of any action or nonaction on
the part of Borrower, Lender, any surety, endorser, or other guarantor in
connection with the Indebtedness or in connection with the creation of new or
additional loans or obligations; (C) to resort for payment or to proceed
directly or at once against any person, including Borrower or any other
guarantor; (D) to proceed directly against or exhaust any collateral held by
Lender from Borrower, any other guarantor, or any other person; (E) to give
notice of the terms, time, and place of any public or private sale of personal
property security held by Lender from Borrower or to comply with any other
applicable provisions of the Uniform Commercial Code; (F) to pursue any other
remedy within Lender's power; or (G) to commit any act or omission of any kind,
or at any time, with respect to any matter whatsoever.
COMMERCIAL GUARANTY
(Continued) Page 2
In addition to the waivers set forth herein, if now or hereafter Borrower is or
shall become insolvent and the Indebtedness shall not at all times until paid be
fully secured by collateral pledged by Borrower, Guarantor hereby forever waives
and gives up in favor of Lender and Borrower, and Lender's and Borrower's
respective successors, any claim or right to payment Guarantor may now have or
hereafter have or acquire against Borrower, by subrogation or otherwise, so that
at no time shall Guarantor be or become a "creditor" of Borrower within the
meaning of 11 U.S.C. section 547(b), or any successor provision of the Federal
bankruptcy laws.
Guarantor also waives any and all rights or defenses arising by reason of (A)
any "one action" or "anti-deficiency" law or any other law which may prevent
Lender from bringing any action, including a claim for deficiency, against
Guarantor, before or after Lender's commencement or completion of any
foreclosure action, either judicially or by exercise of a power of sale; (B) any
election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower
for reimbursement, including without limitation, any loss of rights Guarantor
may suffer by reason of any law limiting, qualifying, or discharging the
Indebtedness; (C) any disability or other defense of Borrower, of any other
guarantor, or of any other person, or by reason of the cessation of Borrower's
liability from any cause whatsoever, other than payment in full in legal tender,
of the Indebtedness; (D) any right to claim discharge of the Indebtedness on the
basis of unjustified impairment of any collateral for the Indebtedness; (E) any
statute of limitations, if at any time any action or suit brought by Lender
against Guarantor is commenced, there is outstanding Indebtedness of Borrower to
Lender which is not barred by any applicable statute of limitations; or (F) any
defenses given to guarantors at law or in equity other than actual payment and
performance of the Indebtedness. If payment is made by Borrower, whether
voluntarily or otherwise, or by any third party, on the Indebtedness and
thereafter Lender is forced to remit the amount of that payment to Borrower's
trustee in bankruptcy or to any similar person under any federal or state
bankruptcy law or law for the relief of debtors, the Indebtedness shall be
considered unpaid for the purpose of the enforcement of this Guaranty.
Guarantor further waives and agrees not to assert or claim at any time any
deductions to the amount guaranteed under this Guaranty for any claim of setoff,
counterclaim, counter demand, recoupment or similar right, whether such claim,
demand or right may be asserted by the Borrower, the Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees
that each of the waivers set forth above is made with Guarantor's full knowledge
of its significance and consequences and that, under the circumstances, the
waivers are reasonable and not contrary to public policy or law. If any such
waiver is determined to be contrary to any applicable law or public policy, such
waiver shall be effective only to the extent permitted by law or public policy.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the
Indebtedness of Borrower to Lender, whether now existing or hereafter created,
shall be superior to any claim that Guarantor may now have or hereafter acquire
against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby
expressly subordinates any claim Guarantor may have against Borrower, upon any
account whatsoever, to any claim that Lender may now or hereafter have against
Borrower. In the event of insolvency and consequent liquidation of the assets of
Borrower, through bankruptcy, by an assignment for the benefit of creditors, by
voluntary liquidation, or otherwise, the assets of Borrower applicable to the
payment of the claims of both Lender and Guarantor shall be paid to Lender and
shall be first applied by Lender to the Indebtedness of Borrower to Lender.
Guarantor does hereby assign to Lender all claims which it may have or acquire
against Borrower or against any assignee or trustee in bankruptcy of Borrower;
provided however, that such assignment shall be effective only for the purpose
of assuring to Lender full payment in legal tender of the Indebtedness. If
Lender so requests, any notes or credit agreements now or hereafter evidencing
any debts or obligations of Borrower to Guarantor shall be marked with a legend
that the same are subject to this Guaranty and shall be delivered to Lender.
Guarantor agrees, and Lender is hereby authorized, in the name of Guarantor,
from time to time to file financing statements and continuation statements and
to execute documents and to take such other actions as Lender deems necessary or
appropriate to perfect, preserve and enforce its rights under this Guaranty.
CONFESSION OF JUDGMENT. Guarantor hereby irrevocably authorizes and empowers any
attorney-at-law to appear in any court of record and to confess judgment against
Guarantor for the unpaid amount of this Guaranty as evidenced by an affidavit
signed by an officer of Lender setting forth the amount then due, attorneys'
fees plus costs of suit, and to release all errors, and waive all rights of
appeal. If a copy of this Guaranty, verified by an affidavit, shall have been
filed in the proceeding, it will not be necessary to file the original as a
warrant of attorney. Guarantor waives the right to any stay of execution and the
benefit of all exemption laws now or hereafter in effect. No single exercise of
the foregoing warrant and power to confess judgment will be deemed to exhaust
the power, whether or not any such exercise shall be held by any court to be
invalid, voidable, or void; but the power will continue undiminished and may be
exercised from time to time as Lender may elect until all amounts owing on this
Guaranty have been paid in full. Guarantor hereby waives and releases any and
all claims or causes of action which Guarantor might have against any attorney
acting under the terms of authority which Guarantor has granted herein arising
out of or connected with the confession of judgement hereunder.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Guaranty:
AMENDMENTS. This Guaranty, together with any Related Documents, constitutes
the entire understanding and agreement of the parties as to the matters set
forth in this Guaranty. No alteration of or amendment to this Guaranty
shall be effective unless given in writing and signed by the party or
parties sought to be charged or bound by the alteration or amendment.
ATTORNEYS' FEES; EXPENSES. Guarantor agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Guaranty. Lender may hire or pay someone else to help enforce this
Guaranty, and Guarantor shall pay the costs and expenses of such
enforcement Costs and expenses include Lender's attorneys' fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and
legal expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. Guarantor also shall pay all court costs
and such additional fees as may be directed by the court.
CAPTION HEADINGS. Caption headings in this Guaranty are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Guaranty.
GOVERNING LAW. This Guaranty will be governed by, construed and enforced in
accordance with federal law and the laws of the State of Illinois. This
Guaranty has been accepted by Lender in the State of Illinois.
CHOICE OF VENUE. If there is a lawsuit, Guarantor agrees upon Lender's
request to submit to the jurisdiction of the courts of DU PAGE County,
State of Illinois.
INTEGRATION. Guarantor further agrees that Guarantor has read and fully
understands the terms of this Guaranty; Guarantor has had the opportunity
to be advised by Guarantor's attorney with respect to this Guaranty; the
Guaranty fully reflects Guarantor's intentions and parol evidence is not
required to interpret the terms of this Guaranty. Guarantor hereby
indemnifies and holds Lender harmless from all losses, claims, damages, and
costs (including Lender's attorneys' fees) suffered or incurred by Lender
as a result of any breach by Guarantor of the warranties, representations
and agreements of this paragraph.
INTERPRETATION. In all cases where there is more than one Borrower or
Guarantor, then all words used in this Guaranty in the singular shall be
deemed to have been used in the plural where the context and construction
so require; and where there is more than one Borrower named in this
Guaranty or when this Guaranty is executed by more than one Guarantor, the
words "Borrower" and "Guarantor" respectively shall mean all and any one or
more of them. The words "Guarantor," "Borrower," and "Lender" include the
heirs, successors, assigns, and transferees of each of them. If a court
finds that any provision of this Guaranty is not valid or should not be
enforced, that fact by itself will not mean that the rest of this
COMMERCIAL GUARANTY
(Continued) Page 3
Guaranty will not be valid or enforced. Therefore, a court will enforce the
rest of the provisions of this Guaranty even if a provision of this
Guaranty may be found to be invalid or unenforceable. if any one or more of
Borrower or Guarantor are corporations, partnerships, limited liability
companies, or similar entities, it is not necessary for Lender to inquire
into the powers of Borrower or Guarantor or of the officers, directors,
partners, managers, or other agents acting or purporting to act on their
behalf, and any indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed under this Guaranty.
NOTICES. Any notice required to be given under this Guaranty shall be given
in writing, and shall be effective when actually delivered, when actually
received by telefacsimile (unless otherwise required by law), when
deposited with a nationally recognized overnight courier, or, if mailed,
when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near the
beginning of this Guaranty. Any party may change its address for notices
under this Guaranty by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party's address.
For notice purposes, Guarantor agrees to keep Lender informed at all times
of Guarantor's current address. Unless otherwise provided or required by
law, if there is more than one Guarantor, any notice given by Lender to any
Guarantor is deemed to be notice given to all Guarantors.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any rights
under this Guaranty unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Guaranty shall not prejudice or constitute a
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Guaranty. No prior waiver by
Lender, nor any course of dealing between Lender and Guarantor, shall
constitute a waiver of any of Lender's rights or of any of Guarantor's
obligations as to any future transactions. Whenever the consent of Lender
is required under this Guaranty, the granting of such consent by Lender in
any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may
be granted or withheld in the sole discretion of Lender.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this Guaranty
on transfer of Guarantor's interest, this Guaranty shall be binding upon
and inure to the benefit of the parties, their successors and assigns.
WAIVE JURY. Lender and Guarantor hereby waive the right to any jury trial
in any action, proceeding, or counterclaim brought by either Lender or
Borrower against the other.
THE FOLLOWING NOTICE IS REQUIRED BY ILLINOIS LAW: UNLESS GUARANTOR PROVIDES
LENDER WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY GUARANTOR'S AGREEMENT
WITH LENDER, LENDER MAY PURCHASE INSURANCE AT GUARANTOR'S EXPENSE TO PROTECT
LENDER'S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT
GUARANTOR'S INTERESTS. THE COVERAGE THAT LENDER PURCHASES MAY NOT PAY ANY CLAIM
THAT GUARANTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST GUARANTOR IN CONNECTION
WITH THE COLLATERAL. GUARANTOR MAY LATER CANCEL ANY INSURANCE PURCHASED BY
LENDER, BUT ONLY AFTER PROVIDING LENDER WITH EVIDENCE THAT GUARANTOR HAS
OBTAINED INSURANCE AS REQUIRED BY THEIR AGREEMENT. IF LENDER PURCHASES INSURANCE
FOR THE COLLATERAL, GUARANTOR WILL BE RESPONSIBLE FOR THE COSTS OF THAT
INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES LENDER MAY IMPOSE IN
CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE
CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE
ADDED TO GUARANTOR'S TOTAL OUTSTANDING BALANCE OR OBLIGATION. THE COSTS OF THE
INSURANCE MAY BE MORE THAN THE COST OF INSURANCE GUARANTOR MAY BE ABLE TO OBTAIN
ON GUARANTOR'S OWN.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Guaranty. Unless specifically stated to the contrary,
all references to dollar amounts shall mean amounts in lawful money of the
United States of America. Words and terms used in the singular shall include the
plural, and the plural shall include the singular, as the context may require.
Words and terms not otherwise defined in this Guaranty shall have the meanings
attributed to such terms in the Uniform Commercial Code:
BORROWER. The word "Borrower" means Advanced Life Sciences, Inc. and
includes all co-signers and co-makers signing the Note.
GAAP. The word "GAAP" means generally accepted accounting principles.
GUARANTOR. The word "Guarantor" means each and every person or entity
signing this Guaranty, including without limitation Xxxx X. Xxxxxx.
GUARANTY. The word "Guaranty" means the guaranty from Guarantor to Lender,
including without limitation a guaranty of all or part of the Note.
INDEBTEDNESS. The word "Indebtedness" means Borrower's indebtedness to
Lender as more particularly described in this Guaranty.
LENDER. The word Tender" means THE LEADERS BANK, its successors and
assigns.
NOTE. The word "Note" means the promissory note dated December 21, 2004, in
the original principal amount of $3,000,000.00 from Borrower to Lender,
together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the promissory
note or agreement.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT
THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS
GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE
MANNER SET FORTH IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAL
ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY
IS DATED DECEMBER 21, 2004.
GUARANTOR:
X /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
COMMERCIAL GUARANTY
(Continued) Page 4
INDIVIDUAL ACKNOWLEDGMENT
STATE OF ________________________ )
) SS
COUNTY OF _______________________ )
On this day before me, the undersigned Notary Public, personally appeared
Xxxx X. Xxxxxx, to me known to be the individual described in and who executed
the Commercial Guaranty, and acknowledged that he or she signed the Guaranty as
his or her free and voluntary act and deed, for the uses and purposes therein
mentioned.
GIVEN UNDER MY HAND AND OFFICIAL SEAL THIS______________DAY
OF____________________________, 20______.
BY__________________________________ RESIDING AT ____________________________
NOTARY PUBLIC IN AND FOR THE STATE OF ______________________
MY COMMISSION EXPIRES _____________________________________
[ILLEGIBLE]
COMMERCIAL GUARANTY
Borrower: Advanced Life Sciences, Inc. Lender: THE LEADERS BANK
0000 Xxxxx Xxxxx 0000 XXXX XXXX, XXXXX 000
Xxxxxxxxx, XX 00000 XXX XXXXX, XX 00000
Guarantor: Xxxxx X. Xxxxxx
0000 Xxxxx Xxxx Xxxx
Xxxxxx, XX 00000
AMOUNT OF GUARANTY. This is a guaranty of payment of the Note, including without
limitation the principal Note amount of Three Million & 00/100 Dollars
($3,000,000.00).
GUARANTY. For good and valuable consideration, Xxxxx X. Xxxxxx ("Guarantor")
absolutely and unconditionally guarantees and promises to pay to THE LEADERS
BANK ("Lender") or its order, on demand, in legal tender of the United States of
America, the Indebtedness (as that term is defined below) of Advanced Life
Sciences, Inc. ("Borrower") to Lender on the terms and conditions set forth in
this Guaranty.
MAXIMUM LIABILITY. The maximum liability of Guarantor under this Guaranty shall
not exceed at any one time the amount of the Indebtedness described herein, plus
all costs and expenses of (A) enforcement of this Guaranty and (B) collection
and sale of any collateral securing this Guaranty.
The above limitation on liability is not a restriction on the amount of the
Indebtedness of Borrower to Lender either in the aggregate or at any one time.
If Lender presently holds one or more guaranties, or hereafter receives
additional guaranties from Guarantor, Lender's rights under all guaranties shall
be cumulative. This Guaranty shall not (unless specifically provided below to
the contrary) affect or invalidate any such other guaranties. Guarantor's
liability will be Guarantor's aggregate liability under the terms of this
Guaranty and any such other unterminated guaranties.
INDEBTEDNESS GUARANTEED. The Indebtedness guaranteed by this Guaranty includes
the Note, including (a) all principal, (b) all interest, (c) all late charges,
(d) all loan fees and loan charges, and (e) all collection costs and expenses
relating to the Note or to any collateral for the Note. Collection costs and
expenses include without limitation all of Lender's attorneys' fees.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender
without the necessity of any acceptance by Lender, or any notice to Guarantor or
to Borrower, and will continue in full force until all Indebtedness shall have
been fully and finally paid and satisfied and all of Guarantor's other
obligations under this Guaranty shall have been performed in full. Release of
any other guarantor or termination of any other guaranty of the Indebtedness
shall not affect the liability of Guarantor under this Guaranty. A revocation
Lender receives from any one or more Guarantors shall not affect the liability
of any remaining Guarantors under this Guaranty. This Guaranty covers a
revolving line of credit and it is specifically anticipated that fluctuations
will occur in the aggregate amount of Indebtedness owing from Borrower to
Lender. Guarantor specifically acknowledges and agrees that fluctuations in the
amount of Indebtedness, even to zero dollars ($ 0.00), shall not constitute a
termination of this Guaranty. Guarantor's liability under this Guaranty shall
terminate only upon (A) termination in writing by Borrower and Lender of the
line of credit, (B) payment of the Indebtedness in full in legal tender, and (C)
payment in full in legal tender of all of Guarantor's other obligations under
this Guaranty.
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, without notice
or demand and without lessening Guarantor's liability under this Guaranty, from
time to time: (A) to make one or more additional secured or unsecured loans to
Borrower, to lease equipment or other goods to Borrower, or otherwise to extend
additional credit to Borrower; (B) to alter, compromise, renew, extend,
accelerate, or otherwise change one or more times the time for payment or other
terms of the Indebtedness or any part of the Indebtedness, including increases
and decreases of the rate of interest on the Indebtedness; extensions may be
repeated and may be for longer than the original loan term; (C) to take and hold
security for the payment of this Guaranty or the Indebtedness, and exchange,
enforce, waive, subordinate, fail or decide not to perfect, and release any such
security, with or without the substitution of new collateral; (D) to release,
substitute, agree not to xxx, or deal with any one or more of Borrower's
sureties, endorsers, or other guarantors on any terms or in any manner Lender
may choose; (E) to determine how, when and what application of payments and
credits shall be made on the Indebtedness (F) to apply such security and direct
the order or manner of sale thereof, including without limitation, any
nonjudicial sale permitted by the terms of the controlling security agreement or
deed of trust, as Lender in its discretion may determine; (G) to sell, transfer,
assign or grant participations in all or any part of the Indebtedness; and (H)
to assign or transfer this Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lender that (A) no representations or agreements of any kind have been made to
Guarantor which would limit or qualify in any way the terms of this Guaranty;
(B) this Guaranty is executed at Borrower's request and not at the request of
Lender; (C) Guarantor has full power, right and authority to enter into this
Guaranty; (D) the provisions of this Guaranty do not conflict with or result in
a default under any agreement or other instrument binding upon Guarantor and do
not result in a violation of any law, regulation, court decree or order
applicable to Guarantor; (E) Guarantor has not and will not, without the prior
written consent of Lender, sell, lease, assign, encumber, hypothecate, transfer,
or otherwise dispose of all or substantially all of Guarantor's assets, or any
interest therein; (F) upon Lender's request, Guarantor will provide to Lender
financial and credit information in form acceptable to Lender, and all such
financial information which currently has been, and all future financial
information which will be provided to Lender is and will be true and correct in
all material respects and fairly present Guarantor's financial condition as of
the dates the financial information is provided; (G) no material adverse change
has occurred in Guarantor's financial condition since the date of the most
recent financial statements provided to Lender and no event has occurred which
may materially adversely affect Guarantor's financial condition; (H) no
litigation, claim, investigation, administrative proceeding or similar action
(including those for unpaid taxes) against Guarantor is pending or threatened;
(I) Lender has made no representation to Guarantor as to the creditworthiness of
Borrower; and (J) Guarantor has established adequate means of obtaining from
Borrower on a continuing basis information regarding Borrower's financial
condition. Guarantor agrees to keep adequately informed from such means of any
facts, events, or circumstances which might in any way affect Guarantor's risks
under this Guaranty, and Guarantor further agrees that, absent a request for
information, Lender shall have no obligation to disclose to Guarantor any
information or documents acquired by Lender in the course of its relationship
with Borrower.
GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the
following:
ADDITIONAL REQUIREMENTS. a Personal Financial Statement on Lenders form
provided annually.
All financial reports required to be provided under this Guaranty shall be
prepared in accordance with GAAP, applied on a consistent basis, and certified
by Guarantor as being true and correct.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives
any right to require Lender (A) to continue lending money or to extend other
credit to Borrower; (B) to make any presentment, protest, demand, or notice of
any kind, including notice of any nonpayment of the Indebtedness or of any
nonpayment related to any collateral, or notice of any action or nonaction on
the part of Borrower, Lender, any surety, endorser, or other guarantor in
connection with the Indebtedness or in connection with the creation of new or
additional loans or obligations; (C) to resort for payment or to proceed
directly or at once against any person, including Borrower or any other
guarantor; (D) to proceed directly against or exhaust any collateral held by
Lender from Borrower, any other guarantor, or any other person; (E) to give
notice of the terms, time, and place of any public or private sale of personal
property security held by Lender from Borrower or to comply with any other
applicable provisions of the Uniform Commercial Code; (F) to pursue any other
remedy within Lender's power; or (G) to commit any act or omission of any kind,
or at any time, with respect to any matter whatsoever.
COMMERCIAL GUARANTY
(Continued) Page 2
In addition to the waivers set forth herein, if now or hereafter Borrower is or
shall become insolvent and the Indebtedness shall not at all times until paid be
fully secured by collateral pledged by Borrower, Guarantor hereby forever waives
and gives up in favor of Lender and Borrower, and Lender's and Borrower's
respective successors, any claim or right to payment Guarantor may now have or
hereafter have or acquire against Borrower, by subrogation or otherwise, so that
at no time shall Guarantor be or become a "creditor" of Borrower within the
meaning of 11 U.S.C. section 547(b), or any successor provision of the Federal
bankruptcy laws.
Guarantor also waives any and all rights or defenses arising by reason of (A)
any "one action" or "anti-deficiency" law or any other law which may prevent
Lender from bringing any action, including a claim for deficiency, against
Guarantor, before or after Lender's commencement or completion of any
foreclosure action, either judicially or by exercise of a power of sale; (B) any
election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower
for reimbursement, including without limitation, any loss of rights Guarantor
may suffer by reason of any law limiting, qualifying, or discharging the
Indebtedness; (C) any disability or other defense of Borrower, of any other
guarantor, or of any other person, or by reason of the cessation of Borrower's
liability from any cause whatsoever, other than payment in full in legal tender,
of the Indebtedness; (D) any right to claim discharge of the Indebtedness on the
basis of unjustified impairment of any collateral for the Indebtedness; (E) any
statute of limitations, if at any time any action or suit brought by Lender
against Guarantor is commenced, there is outstanding Indebtedness of Borrower to
Lender which is not barred by any applicable statute of limitations; or (F) any
defenses given to guarantors at law or in equity other than actual payment and
performance of the Indebtedness. If payment is made by Borrower, whether
voluntarily or otherwise, or by any third party, on the Indebtedness and
thereafter Lender is forced to remit the amount of that payment to Borrower's
trustee in bankruptcy or to any similar person under any federal or state
bankruptcy law or law for the relief of debtors, the Indebtedness shall be
considered unpaid for the purpose of the enforcement of this Guaranty.
Guarantor further waives and agrees not to assert or claim at any time any
deductions to the amount guaranteed under this Guaranty for any claim of setoff,
counterclaim, counter demand, recoupment or similar right, whether such claim,
demand or right may be asserted by the Borrower, the Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees
that each of the waivers set forth above is made with Guarantor's full knowledge
of its significance and consequences and that, under the circumstances, the
waivers are reasonable and not contrary to public policy or law. If any such
waiver is determined to be contrary to any applicable law or public policy, such
waiver shall be effective only to the extent permitted by law or public policy.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the
Indebtedness of Borrower to Lender, whether now existing or hereafter created,
shall be superior to any claim that Guarantor may now have or hereafter acquire
against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby
expressly subordinates any claim Guarantor may have against Borrower, upon any
account whatsoever, to any claim that Lender may now or hereafter have against
Borrower. In the event of insolvency and consequent liquidation of the assets of
Borrower, through bankruptcy, by an assignment for the benefit of creditors, by
voluntary liquidation, or otherwise, the assets of Borrower applicable to the
payment of the claims of both Lender and Guarantor shall be paid to Lender and
shall be first applied by Lender to the Indebtedness of Borrower to Lender.
Guarantor does hereby assign to Lender all claims which it may have or acquire
against Borrower or against any assignee or trustee in bankruptcy of Borrower;
provided however, that such assignment shall be effective only for the purpose
of assuring to Lender full payment in legal tender of the Indebtedness. If
Lender so requests, any notes or credit agreements now or hereafter evidencing
any debts or obligations of Borrower to Guarantor shall be marked with a legend
that the same are subject to this Guaranty and shall be delivered to Lender.
Guarantor agrees, and Lender is hereby authorized, in the name of Guarantor,
from time to time to file financing statements and continuation statements and
to execute documents and to take such other actions as Lender deems necessary or
appropriate to perfect; preserve and enforce its rights under this Guaranty.
CONFESSION OF JUDGMENT. Guarantor hereby irrevocably authorizes and empowers any
attorney-at-law to appear in any court of record and to confess judgment against
Guarantor for the unpaid amount of this Guaranty as evidenced by an affidavit
signed by an officer of Lender setting forth the amount then due, attorneys'
fees plus costs of suit, and to release all errors, and waive all rights of
appeal. If a copy of this Guaranty, verified by an affidavit, shall have been
filed in the proceeding, it will not be necessary to file the original as a
warrant of attorney. Guarantor waives the right to any stay of execution and the
benefit of all exemption laws now or hereafter in effect. No single exercise of
the foregoing warrant and power to confess judgment will be deemed to exhaust
the power, whether or not any such exercise shall be held by any court to be
invalid, voidable, or void; but the power will continue undiminished and may be
exercised from time to time as Lender may elect until all amounts owing on this
Guaranty have been paid in full. Guarantor hereby waives and releases any and
all claims or causes of action which Guarantor might have against any attorney
acting under the terms of authority which Guarantor has granted herein arising
out of or connected with the confession of judgement hereunder.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Guaranty:
AMENDMENTS. This Guaranty, together with any Related Documents, constitutes
the entire understanding and agreement of the parties as to the matters set
forth in this Guaranty. No alteration of or amendment to this Guaranty
shall be effective unless given in writing and signed by the party or
parties sought to be charged or bound by the alteration or amendment.
ATTORNEYS' FEES; EXPENSES. Guarantor agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Guaranty. Lender may hire or pay someone else to help enforce this
Guaranty, and Guarantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's attorneys' fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and
legal expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. Guarantor also shall pay all court costs
and such additional fees as may be directed by the court.
CAPTION HEADINGS. Caption headings in this Guaranty are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Guaranty.
GOVERNING LAW. THIS GUARANTY WILL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF ILLINOIS. THIS
GUARANTY HAS BEEN ACCEPTED BY LENDER IN THE STATE OF ILLINOIS.
CHOICE OF VENUE. If there is a lawsuit, Guarantor agrees upon Lender's
request to submit to the jurisdiction of the courts of DU PAGE County,
State of Illinois.
INTEGRATION. Guarantor further agrees that Guarantor has read and fully
understands the terms of this Guaranty; Guarantor has had the opportunity
to be advised by Guarantor's attorney with respect to this Guaranty; the
Guaranty fully reflects Guarantor's intentions and parol evidence is not
required to interpret the terms of this Guaranty. Guarantor hereby
indemnifies and holds Lender harmless from all losses, claims, damages, and
costs (including Lender's attorneys' fees) suffered or incurred by Lender
as a result of any breach by Guarantor of the warranties, representations
and agreements of this paragraph.
INTERPRETATION. In all cases where there is more than one Borrower or
Guarantor, then all words used in this Guaranty in the singular shall be
deemed to have been used in the plural where the context and construction
so require; and where there is more than one Borrower named in this
Guaranty or when this Guaranty is executed by more than one Guarantor, the
words "Borrower" and "Guarantor" respectively shall mean all and any one or
more of them. The words "Guarantor," "Borrower," and "Lender" include the
heirs, successors, assigns, and transferees of each of them. If a court
finds that any provision of this Guaranty is not valid or should not be
enforced, that fact by itself will not mean that the rest of this
COMMERCIAL GUARANTY
(Continued) Page 3
Guaranty will not be valid or enforced. Therefore, a court will enforce the
rest of the provisions of this Guaranty even if a provision of this
Guaranty may be found to be invalid or unenforceable. If any one or more of
Borrower or Guarantor are corporations, partnerships, limited liability
companies, or similar entities, it is not necessary for Lender to inquire
into the powers of Borrower or Guarantor or of the officers, directors,
partners, managers, or other agents acting or purporting to act on their
behalf, and any indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed under this Guaranty.
NOTICES. Any notice required to be given under this Guaranty shall be given
in writing, and shall be effective when actually delivered, when actually
received by telefacsimile (unless otherwise required by law), when
deposited with a nationally recognized overnight courier, or, if mailed,
when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near the
beginning of this Guaranty. Any party may change its address for notices
under this Guaranty by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party's address.
For notice purposes, Guarantor agrees to keep Lender informed at all times
of Guarantor's current address. Unless otherwise provided or required by
law, it there is more than one Guarantor, any notice given by Lender to any
Guarantor is deemed to be notice given to all Guarantors.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any rights
under this Guaranty unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Guaranty shall not prejudice or constitute a
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Guaranty. No prior waiver by
Lender, nor any course of dealing between Lender and Guarantor, shall
constitute a waiver of any of Lender's rights or of any of Guarantor's
obligations as to any future transactions. Whenever the consent of Lender
is required under this Guaranty, the granting of such consent by Lender in
any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may
be granted or withheld in the sole discretion of Lender.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this Guaranty
on transfer of Guarantor's interest, this Guaranty shall be binding upon
and inure to the benefit of the parties, their successors and assigns.
WAIVE JURY. Lender and Guarantor hereby waive the right to any jury trial
in any action, proceeding, or counterclaim brought by either Lender or
Borrower against the other.
THE FOLLOWING NOTICE IS REQUIRED BY ILLINOIS LAW: UNLESS GUARANTOR PROVIDES
LENDER WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY GUARANTOR'S AGREEMENT
WITH LENDER, LENDER MAY PURCHASE INSURANCE AT GUARANTOR'S EXPENSE TO PROTECT
LENDER'S INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT
GUARANTOR'S INTERESTS. THE COVERAGE THAT LENDER PURCHASES MAY NOT PAY ANY CLAIM
THAT GUARANTOR MAKES OR ANY CLAIM THAT IS MADE AGAINST GUARANTOR IN CONNECTION
WITH THE COLLATERAL. GUARANTOR MAY LATER CANCEL ANY INSURANCE PURCHASED BY
LENDER, BUT ONLY AFTER PROVIDING LENDER WITH EVIDENCE THAT GUARANTOR HAS
OBTAINED INSURANCE AS REQUIRED BY THEIR AGREEMENT. IF LENDER PURCHASES INSURANCE
FOR THE COLLATERAL, GUARANTOR WILL BE RESPONSIBLE FOR THE COSTS OF THAT
INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES LENDER MAY IMPOSE IN
CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE
CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE
ADDED TO GUARANTOR'S TOTAL OUTSTANDING BALANCE OR OBLIGATION. THE COSTS OF THE
INSURANCE MAY BE MORE THAN THE COST OF INSURANCE GUARANTOR MAY BE ABLE TO OBTAIN
ON GUARANTOR'S OWN.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Guaranty. Unless specifically stated to the contrary,
all references to dollar amounts shall mean amounts in lawful money of the
United States of America. Words and terms used in the singular shall include the
plural, and the plural shall include the singular, as the context may require.
Words and terms not otherwise defined in this Guaranty shall have the meanings
attributed to such terms in the Uniform Commercial Code:
BORROWER. The word "Borrower" means Advanced Life Sciences, Inc. and
includes all co-signers and co-makers signing the Note.
GAAP. The word "GAAP" means generally accepted accounting principles.
GUARANTOR. The word "Guarantor" means each and every person or entity
signing this Guaranty, including without limitation Xxxxx X. Xxxxxx.
GUARANTY. The word "Guaranty" means the guaranty from Guarantor to Lender,
including without limitation a guaranty of all or part of the Note.
INDEBTEDNESS. The word "Indebtedness" means Borrower's indebtedness to
Lender as more particularly described in this Guaranty.
LENDER. The word "Lender" means THE LEADERS BANK, its successors and
assigns.
NOTE. The word "Note" means the promissory note dated December 21, 2004, in
the original principal amount of $3,000,000.00 from Borrower to Lender,
together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the promissory
note or agreement.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT
THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS
GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE
MANNER SET FORTH IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAL
ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY
IS DATED DECEMBER 21, 2004.
GUARANTOR:
X /s/ Xxxxx X. Xxxxxx
------------------------
Xxxxx X. Xxxxxx
COMMERCIAL GUARANTY
(Continued) Page 4
INDIVIDUAL ACKNOWLEDGMENT
STATE OF _______________________ )
) SS
COUNTY OF ______________________ )
On this day before me, the undersigned Notary Public, personally appeared
Xxxxx X. Xxxxxx, to me known to be the individual described in and who executed
the Commercial Guaranty, and acknowledged that he or she signed the Guaranty as
his or her free and voluntary act and deed, for the uses and purposes therein
mentioned.
GIVEN UNDER MY HAND AND OFFICIAL SEAL THIS_________________ DAY
OF____________________________, 20______.
BY _____________________________________ RESIDING AT ____________________
NOTARY PUBLIC IN AND FOR THE STATE OF ______________________
MY COMMISSION EXPIRES ____________________________________
[ILLEGIBLE]
CORPORATE RESOLUTION TO GRANT COLLATERAL
Borrower: Advanced Life Sciences, Inc. Lender: THE LEADERS BANK
0000 Xxxxx Xxxxx 0000 XXXX XXXX, XXXXX 000
Xxxxxxxxx, XX 00000 XXX XXXXX, XX 00000
Corporation: Advanced Life Sciences Holdings, Inc.
0000 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
WE, THE UNDERSIGNED, DO HEREBY CERTIFY THAT:
THE CORPORATION'S EXISTENCE. The complete and correct name of the Corporation is
Advanced Life Sciences Holdings, Inc. ("Corporation"). The Corporation is a
corporation for profit which is, and at all times shall be, duly organized,
validly existing, and in good standing under and by virtue of the laws of the
State of Delaware. The Corporation is duly authorized to transact business in
the State of Illinois and all other states in which the Corporation is doing
business, having obtained all necessary filings, governmental licenses and
approvals for each state in which the Corporation is doing business.
Specifically, the Corporation is, and at all times shall be, duly qualified as a
foreign corporation in all states in which the failure to so qualify would have
a material adverse effect on its business or financial condition. The
Corporation has the full power and authority to own its properties and to
transact the business in which it is presently engaged or presently proposes to
engage. The Corporation maintains an office at 0000 Xxxxx Xxxxx, Xxxxxxxxx, XX
00000. Unless the Corporation has designated otherwise in writing, the principal
office is the office at which the Corporation keeps its books and records. The
Corporation will notify Lender prior to any change in the location of The
Corporation's state of organization or any change in The Corporation's name. The
Corporation shall do all things necessary to preserve and to keep in full force
and effect its existence, rights and privileges, and shall comply with all
regulations, rules, ordinances, statutes, orders and decrees of any governmental
or quasi-governmental authority or court applicable to the Corporation and The
Corporation's business activities.
RESOLUTIONS ADOPTED. At a meeting of the Directors of the Corporation, or if the
Corporation is a close corporation having no Board of Directors then at a
meeting of the Corporation's shareholders, duly called and held on December 21,
2004, at which a quorum was present and voting, or by other duly authorized
action in lieu of a meeting, the resolutions set forth in this Resolution were
adopted.
OFFICERS. The following named persons are officers of Advanced Life Sciences
Holdings, Inc.:
NAMES TITLES AUTHORIZED ACTUAL SIGNATURES
----- ------ ---------- -----------------
Xxxx X. Xxxxxx President Y X /s/ Xxxx X. Xxxxxx
-----------------------
Xxxxxxx X. Xxxxxx Chief Executive Y X /s/ Xxxxxxx X. Xxxxxx
Officer -----------------------
ACTIONS AUTHORIZED. Any two (2) of the authorized persons listed above may enter
into any agreements of any nature with Lender, and those agreements will bind
the Corporation. Specifically, but without limitation, any two (2) of such
authorized persons are authorized, empowered, and directed to do the following
for and on behalf of the Corporation:
GRANT SECURITY. To mortgage, pledge, transfer, endorse, hypothecate, or
otherwise encumber and deliver to Lender any property now or hereafter
belonging to the Corporation or in which the Corporation now or hereafter
may have an interest, including without limitation all of the Corporation's
real property and all of the Corporation's personal property (tangible or
intangible), as security for the payment of any loans, any promissory
notes, or any other or further indebtedness of Advanced Life Sciences, Inc.
to Lender at any time owing, however the same may be evidenced. Such
property may be mortgaged, pledged, transferred, endorsed, hypothecated or
encumbered at the time such loans are obtained or such indebtedness is
incurred, or at any other time or times, and may be either in addition to
or in lieu of any property theretofore mortgaged, pledged, transferred,
endorsed, hypothecated or encumbered. The provisions of this Resolution
authorizing or relating to the pledge, mortgage, transfer, endorsement,
hypothecation, granting of a security interest in, or in any way
encumbering, the assets of the Corporation shall include, without
limitation, doing so in order to lend collateral security for the
indebtedness, now or hereafter existing, and of any nature whatsoever, of
Advanced Life Sciences, Inc. to Lender. The Corporation has considered the
value to itself of lending collateral in support of such indebtedness, and
the Corporation represents to Lender that the Corporation is benefited by
doing so.
EXECUTE SECURITY DOCUMENTS. To execute and deliver to Lender the forms of
mortgage, deed of trust, pledge agreement, hypothecation agreement, and
other security agreements and financing statements which Lender may require
and which shall evidence the terms and conditions under and pursuant to
which such liens and encumbrances, or any of them, are given; and also to
execute and deliver to Lender any other written instruments, any chattel
paper, or any other collateral, of any kind or nature, which Lender may
deem necessary or proper in connection with or pertaining to the giving of
the liens and encumbrances. Notwithstanding the foregoing, any one of the
above authorized persons may execute, deliver, or record financing
statements.
FURTHER ACTS. To do and perform such other acts and things and to execute
and deliver such other documents and agreements, including agreements
waiving the right to a trial by jury and confessing judgment against the
Corporation, as the officers may in their discretion deem reasonably
necessary or proper in order to carry into effect the provisions of this
Resolution.
ASSUMED BUSINESS NAMES. The Corporation has filed or recorded all documents or
filings required by law relating to all assumed business names used by the
Corporation. Excluding the name of the Corporation, the following is a complete
list of all assumed business names under which the Corporation does business:
None.
NOTICES TO LENDER. The Corporation will promptly notify Lender in writing at
Lender's address shown above (or such other addresses as Lender may designate
from time to time) prior to any (A) change in the Corporation's name; (B) change
in the Corporation's assumed business name(s); (C) change in the management of
the Corporation; (D) change in the authorized signer(s); (E) change in the
Corporation's principal office address; (F) change in the Corporation's state of
organization; (G) conversion of the Corporation to a new or different type of
business entity; or (H) change in any other aspect of the Corporation that
directly or indirectly relates to any agreements between the Corporation and
Lender. No change in the Corporation's name or state of organization will take
effect until after Lender has received notice.
CERTIFICATION CONCERNING OFFICERS AND RESOLUTIONS. The officers named above are
duly elected, appointed, or employed by or for the Corporation, as the case may
be, and occupy the positions set opposite their respective names. This
Resolution now stands of record on the books of the Corporation, is in full
force and effect, and has not been modified or revoked in any manner whatsoever.
NO CORPORATE SEAL. The Corporation has no corporate seal, and therefore, no seal
is affixed to this Resolution.
CONTINUING VALIDITY. Any and all acts authorized pursuant to this Resolution and
performed prior to the passage of this Resolution are hereby ratified and
approved. This Resolution shall be continuing, shall remain in full force and
effect and Lender may rely on it until written notice of its revocation shall
have been delivered to and received by Lender at Lender's address shown above
(or such addresses as Lender may designate from time to time). Any such notice
shall not affect any of the Corporation's agreements or commitments in effect at
the time notice is given.
CORPORATE RESOLUTION TO GRANT COLLATERAL
(Continued) Page 2
IN TESTIMONY WHEREOF, We have hereunto set our hand and attest that the
signatures set opposite the names listed above are their genuine signatures.
We each have read all the provisions of this Resolution, and we each personally
and on behalf of the Corporation certify that all statements and representations
made in this Resolution are true and correct. This Corporate Resolution to Grant
Collateral is dated December 21, 2004.
THIS RESOLUTION IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS RESOLUTION IS
AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO
LAW.
CERTIFIED TO AND ATTESTED BY:
X /s/ Xxxx X. Xxxxxx (Seal)
---------------------------
Xxxx X. Xxxxxx
X /s/ Xxxxxxx X. Xxxxxx (Seal)
---------------------------
Xxxxxxx X. Xxxxxx
NOTE: If the officers signing this Resolution are designated by the foregoing
document as one of the officers authorized to act on the Corporation's behalf,
it is advisable to have this Resolution signed by at least one non-authorized
officer of the Corporation.
[ILLEGIBLE]
CORPORATE RESOLUTION TO BORROW / GRANT COLLATERAL
Corporation: Advanced Life Sciences, Inc. Lender: THE LEADERS BANK
0000 Xxxxx Xxxxx 0000 XXXX XXXX, XXXXX 000
Xxxxxxxxx, XX 00000 XXX XXXXX, XX 00000
I, THE UNDERSIGNED, DO HEREBY CERTIFY THAT:
THE CORPORATION'S EXISTENCE. The complete and correct name of the Corporation is
Advanced Life Sciences, Inc. ("Corporation"). The Corporation is a corporation
for profit which is, and at all times shall be, duly organized, validly
existing, and in good standing under and by virtue of the laws of the State of
Illinois. The Corporation has the full power and authority to own its properties
and to transact the business in which it is presently engaged or presently
proposes to engage. The Corporation maintains an office at 0000 Xxxxx Xxxxx,
Xxxxxxxxx, XX 00000. Unless the Corporation has designated otherwise in writing,
the principal office is the office at which the Corporation keeps its books and
records. The Corporation will notify Lender prior to any change in the location
of The Corporation's state of organization or any change in The Corporation's
name. The Corporation shall do all things necessary to preserve and to keep in
full force and effect its existence, rights and privileges, and shall comply
with all regulations, rules, ordinances, statutes, orders and decrees of any
governmental or quasi-governmental authority or court applicable to the
Corporation and The Corporation's business activities.
RESOLUTIONS ADOPTED. At a meeting of the Directors of the Corporation, or if the
Corporation is a close corporation having no Board of Directors then at a
meeting of the Corporation's shareholders, duly called and held on December 20,
2004, at which a quorum was present and voting, or by other duly authorized
action in lieu of a meeting, the resolutions set forth in this Resolution were
adopted.
OFFICERS. The following named persons are officers of Advanced Life Sciences,
Inc.:
NAMES TITLES AUTHORIZED ACTUAL SIGNATURES
----- ------ ---------- -----------------
Xxxx X. Xxxxxx President Y X /s/ Xxxx X. Xxxxxx
-----------------------
Ze-Xx Xx Secretary Y X /s/ Ze-Xx Xx
-----------------------
ACTIONS AUTHORIZED. Any one (1) of the authorized persons listed above may enter
into any agreements of any nature with Lender, and those agreements will bind
the Corporation. Specifically, but without limitation, any one (1) of such
authorized persons are authorized, empowered, and directed to do the following
for and on behalf of the Corporation:
BORROW MONEY. To borrow, as a cosigner or otherwise, from time to time from
Lender, on such terms as may be agreed upon between the Corporation and
Lender, such sum or sums of money as in their judgment should be borrowed;
however, not exceeding at any one time the amount of THREE MILLION & 00/100
DOLLARS ($3,000,000.00), in addition to such sum or sums of money as may be
currently borrowed by the Corporation from Lender.
EXECUTE NOTES. To execute and deliver to Lender the promissory note or
notes, or other evidence of the Corporation's credit accommodations, on
Lender's forms, at such rates of interest and on such terms as may be
agreed upon, evidencing the sums of money so borrowed or any of the
Corporation's indebtedness to Lender, and also to execute and deliver to
Lender one or more renewals, extensions, modifications, refinancings,
consolidations, or substitutions for one or more of the notes, any portion
of the notes, or any other evidence of credit accommodations.
GRANT SECURITY. To mortgage, pledge, transfer, endorse, hypothecate, or
otherwise encumber and deliver to Lender any property now or hereafter
belonging to the Corporation or in which the Corporation now or hereafter
may have an interest, including without limitation all of the
Corporation's real property and all of the Corporation's personal property
(tangible or intangible), as security for the payment of any loans or
credit accommodations so obtained, any promissory notes so executed
(including any amendments to or modifications, renewals, and extensions of
such promissory notes), or any other or further indebtedness of the
Corporation to Lender at any time owing, however the same may be evidenced.
Such property may be mortgaged, pledged, transferred, endorsed,
hypothecated or encumbered at the time such loans are obtained or such
indebtedness is incurred, or at any other time or times, and may be either
in addition to or in lieu of any property theretofore mortgaged, pledged,
transferred, endorsed, hypothecated or encumbered.
EXECUTE SECURITY DOCUMENTS. To execute and deliver to Lender the forms of
mortgage, deed of trust, pledge agreement, hypothecation agreement, and
other security agreements and financing statements which Lender may require
and which shall evidence the terms and conditions under and pursuant to
which such liens and encumbrances, or any of them, are given; and also to
execute and deliver to Lender any other written instruments, any chattel
paper, or any other collateral, of any kind or nature, which Lender may
deem necessary or proper in connection with or pertaining to the giving of
the liens and encumbrances. Notwithstanding the foregoing, any one of the
above authorized persons may execute, deliver, or record financing
statements.
NEGOTIATE ITEMS. To draw, endorse, and discount with Lender all drafts,
trade acceptances, promissory notes, or other evidences of indebtedness
payable to or belonging to the Corporation or in which the Corporation may
have an interest, and either to receive cash for the same or to cause such
proceeds to be credited to the Corporation's account with Lender, or to
cause such other disposition of the proceeds derived therefrom as they may
deem advisable.
FURTHER ACTS. In the case of lines of credit, to designate additional or
alternate individuals as being authorized to request advances under such
lines, and in all cases, to do and perform such other acts and things, to
pay any and all fees and costs, and to execute and deliver such other
documents and agreements, including agreements waiving the right to a trial
by jury and confessing judgment against the Corporation, as the officers
may in their discretion deem reasonably necessary or proper in order to
carry into effect the provisions of this Resolution. The following persons
currently are authorized to request advances and authorize payments under
the line of credit until Lender receives from the Corporation, at Lender's
address shown above, written notice of revocation of their authority: XXXX
X. XXXXXX, PRESIDENT OF ADVANCED LIFE SCIENCES, INC.; AND XXXXXXX X.
XXXXXX, CEO OF XXXXXX VENTURES LLC.
ASSUMED BUSINESS NAMES. The Corporation has filed or recorded all documents or
filings required by law relating to all assumed business names used by the
Corporation. Excluding the name of the Corporation, the following is a complete
list of all assumed business names under which the Corporation does business:
NONE.
NOTICES TO LENDER. The Corporation will promptly notify Lender in writing at
Lender's address shown above (or such other addresses as Lender may designate
from time to time) prior to any (A) change in the Corporation's name; (B) change
in the Corporation's assumed business name(s); (C) change in the management of
the Corporation; (D) change in the authorized signer(s); (E) change in the
Corporation's principal office address; (F) change in the Corporation's state of
organization; (G) conversion of the Corporation to a new or different type of
business entity; or (H) change in any other aspect of the Corporation that
directly or indirectly relates to any agreements between the Corporation and
Lender. No change in the Corporation's name or state of organization will take
effect until after Lender has received notice.
CERTIFICATION CONCERNING OFFICERS AND RESOLUTIONS. The officers named above are
duly elected, appointed, or employed by or for the
CORPORATE RESOLUTION TO BORROW / GRANT COLLATERAL
(Continued) Page 2
Corporation, as the case may be, and occupy the positions set opposite their
respective names. This Resolution now stands of record on the books of the
Corporation, is in full force and effect, and has not been modified or revoked
in any manner whatsoever.
NO CORPORATE SEAL. The Corporation has no corporate seal, and therefore, no seal
is affixed to this Resolution.
CONTINUING VALIDITY. Any and all acts authorized pursuant to this Resolution and
performed prior to the passage of this Resolution are hereby ratified and
approved. This Resolution shall be continuing, shall remain in full force and
effect and Lender may rely on it until written notice of its revocation shall
have been delivered to and received by Lender at Lender's address shown above
(or such addresses as Lender may designate from time to time). Any such notice
shall not affect any of the Corporation's agreements or commitments in effect at
the time notice is given.
IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND ATTEST THAT THE SIGNATURES
SET OPPOSITE THE NAMES LISTED ABOVE ARE THEIR GENUINE SIGNATURES.
I HAVE READ ALL THE PROVISIONS OF THIS RESOLUTION, AND I PERSONALLY AND ON
BEHALF OF THE CORPORATION CERTIFY THAT ALL STATEMENTS AND REPRESENTATIONS MADE
IN THIS RESOLUTION ARE TRUE AND CORRECT. THIS CORPORATE RESOLUTION TO BORROW /
GRANT COLLATERAL IS DATED DECEMBER 20, 2004.
CERTIFIED TO AND ATTESTED BY:
X /s/ Ze-Xx Xx
----------------------
Ze-Xx Xx
NOTE: If the officers signing this Resolution are designated by the foregoing
document as one of the officers authorized to act on the Corporation's behalf,
it is advisable to have this Resolution signed by at least one non-authorized
officer of the Corporation.
[ILLEGIBLE]
LIMITED LIABILITY COMPANY RESOLUTION TO GRANT COLLATERAL/GUARANTEE
Borrower: Advanced Life Sciences. Inc. Lender: THE LEADERS BANK
0000 Xxxxx Xxxxx 0000 XXXX XXXX, XXXXX 000
Xxxxxxxxx, XX 00000 XXX XXXXX, XX 00000
Company: Xxxxxx Ventures LLC
0000 Xxxxx Xxxx (Xxxxxxxxxxxxx Xxxxxx)
Xxxxxxxxx, XX 00000
WE, THE UNDERSIGNED, DO HEREBY CERTIFY THAT:
THE COMPANY'S EXISTENCE. The complete and correct name of the Company is Xxxxxx
Ventures LLC ("Company"). The Company is a limited liability company which is,
and at all times shall be, duly organized, validly existing, and in good
standing under and by virtue of the laws of the State of Delaware. The Company
is duly authorized to transact business in the State of Illinois and all other
states in which the Company is doing business, having obtained all necessary
filings, governmental licenses and approvals for each state in which the Company
is doing business. Specifically, the Company is, and at all times shall be, duly
qualified as a foreign limited liability company in all states in which the
failure to so qualify would have a material adverse effect on its business or
financial condition. The Company has the full power and authority to own its
properties and to transact the business in which it is presently engaged or
presently proposes to engage. The Company maintains an office at 0000 Xxxxx Xxxx
(Xxxxxxxxxxxxx Xxxxxx), Xxxxxxxxx, XX 00000. Unless the Company has designated
otherwise in writing, the principal office is the office at which the Company
keeps its books and records. The Company will notify Lender prior to any charge
in the location of The Company's state of organization or any change in The
Company's name. The Company shall do all things necessary to preserve and to
keep in full force and effect its existence, rights and privileges, and shall
comply with all regulations, rules, ordinances, statutes, orders and decrees of
any governmental or quasi-governmental authority or court applicable to the
Company and The Company's business activities.
RESOLUTIONS ADOPTED. At a meeting of the members of the Company, duly called and
held on December 21, 2004, at which a quorum was present and voting, or by other
duly authorized action in lieu of a meeting, the resolutions set forth in this
Resolution were adopted.
MEMBERS. The following named persons are members of Xxxxxx Ventures LLC:
NAMES TITLES AUTHORIZED ACTUAL SIGNATURES
----- ------ ---------- -----------------
Xxxxxxx X. Xxxxxx Member Y X /s/ Xxxxxxx X. Xxxxxx
------------------------
Xxxx X. Xxxxxx Member Y X /s/ Xxxx X. Xxxxxx
------------------------
ACTIONS AUTHORIZED. Any two (2) of the authorized persons listed above may enter
into any agreements of any nature with Lender, and those agreements will bind
the Company. Specifically, but without limitation, any two (2) of such
authorized persons are authorized, empowered, and directed to do the following
for and on behalf of the Company:
GUARANTY. To guarantee or act as surety for loans or other financial
accommodations to Borrower from Lender on such guarantee or surety terms as
may be agreed upon between the members of the Company and Lender and in
such sum or sums of money as in their judgment should be guaranteed or
assured, (the "Guaranty").
GRANT SECURITY. To mortgage, pledge, transfer, endorse, hypothecate, or
otherwise encumber and deliver to Lender any property now or thereafter
belonging to the Company or in which the Company now or hereafter may have
an interest, including without limitation all of the Company's real
property and all of the Company's personal property (tangible or
intangible), as security for the Guaranty, and as a security for the
payment of any loans, any promissory notes, or any other or further
indebtedness of Advanced Life Sciences, Inc. to Lender at any time owing,
however the same may be evidenced. Such property may be mortgaged, pledged,
transferred, endorsed, hypothecated or encumbered at the time such loans
are obtained or such indebtedness is incurred, or at any other time or
times, and may be either in addition to or in lieu of any property
theretofore mortgaged, pledged, transferred, endorsed, hypothecated or
encumbered. The provisions of this Resolution authorizing or relating to
the pledge, mortgage, transfer, endorsement, hypothecation, granting of a
security interest in, or in any way encumbering, the assets of the Company
shall include, without limitation, doing so in order to lend collateral
security for the indebtedness, now or hereafter existing, and of any nature
whatsoever, of Advanced Life Sciences, Inc. to Lender. The Company has
considered the value to itself of lending collateral in support of such
indebtedness, and the Company represents to Lender that the Company is
benefited by doing so.
EXECUTE SECURITY DOCUMENTS. To execute and deliver to Lender the forms of
mortgage, deed of trust, pledge agreement, hypothecation agreement, and
other security agreements and financing statements which Lender may require
and which shall evidence the terms and conditions under and pursuant to
which such liens and encumbrances, or any of them, are given; and also to
execute and deliver to Lender any other written instruments, any chattel
paper, or any other collateral, of any kind or nature, which Lender may
deem necessary or proper in connection with or pertaining to the giving of
the liens and encumbrances. Notwithstanding the foregoing, any one of the
above authorized persons may execute, deliver, or record financing
statements.
CONFESSION OF JUDGEMENT. THE COMPANY HEREBY IRREVOCABLY AUTHORIZES AND
EMPOWERS ANY ATTORNEY-AT-LAW TO APPEAR IN ANY COURT OF RECORD AND TO
CONFESS JUDGMENT AGAINST THE COMPANY FOR THE UNPAID AMOUNT OF THIS
RESOLUTION AS EVIDENCED BY AN AFFIDAVIT SIGNED BY AN OFFICER OF LENDER
SETTING FORTH THE AMOUNT THEN DUE, REASONABLE ATTORNEYS' FEES PLUS COSTS OF
SUIT, AND TO RELEASE ALL ERRORS, AND WAIVE ALL RIGHTS OF APPEAL. IF A COPY
OF THIS RESOLUTION, VERIFIED BY AN AFFIDAVIT, SHALL HAVE BEEN FILED IN THE
PROCEEDING, IT WILL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF
ATTORNEY. THE COMPANY WAIVES THE RIGHT TO ANY STAY OF EXECUTION AND THE
BENEFIT OF ALL EXEMPTION LAWS NOW OR HEREAFTER IN EFFECT. NO SINGLE
EXERCISE OF THE FOREGOING WARRANT AND POWER TO CONFESS JUDGMENT WILL BE
DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD
BY ANY COURT TO BE INVALID, VOIDABLE, OR VOID; BUT THE POWER WILL CONTINUE
UNDIMINISHED AND MAY BE EXERCISED FROM TIME TO TIME AS LENDER MAY ELECT
UNTIL ALL AMOUNTS OWING ON THIS RESOLUTION HAVE BEEN PAID IN FULL.
FURTHER ACTS. To do and perform such other acts and things and to execute
and deliver such other documents and agreements, including agreements
waiving the right to a trial by jury and confessing judgment against the
Company, as the members may in their discretion deem reasonably necessary
or proper in order to carry into effect the provisions of this Resolution.
ASSUMED BUSINESS NAMES. The Company has filed or recorded all documents or
filings required by law relating to all assumed business names used by the
Company. Excluding the name of the Company, the following is a complete list of
all assumed business names under which the Company does business: None.
NOTICES TO LENDER. The Company will promptly notify Lender in writing at
Lender's address shown above (or such other addresses as Lender
LIMITED LIABILITY COMPANY RESOLUTION TO GRANT COLLATERAL / GUARANTEE
(Continued) Page 2
may designate from time to time) prior to any (A) change in the Company's name;
(B) change in the Company's assumed business name(s); (C) change in the
management or in the Members of the Company; (D) change in the authorized
signer(s); (E) change in the Company's principal office address; (F) change in
the Company's state of organization; (G) conversion of the Company to a new or
different type of business entity; or (H) change in any other aspect of the
Company that directly or indirectly relates to any agreements between the
Company and Lender. No change in the Company's name or state of organization
will take effect until after Lender has received notice.
CERTIFICATION CONCERNING MEMBERS AND RESOLUTIONS. The members named above are
duly elected, appointed, or employed by or for the Company, as the case may be,
and occupy the positions set opposite their respective names. This Resolution
now stands of record on the books of the Company, is in full force and effect,
and has not been modified or revoked in any manner whatsoever.
CONTINUING VALIDITY. Any and all acts authorized pursuant to this Resolution and
performed prior to the passage of this Resolution are hereby ratified and
approved. This Resolution shall be continuing, shall remain in full force and
effect and Lender may rely on it until written notice of its revocation shall
have been delivered to and received by Lender at Lender's address shown above
(or such addresses as Lender may designate from time to time). Any such notice
shall not affect any of the Company's agreements or commitments in effect at the
time notice is given.
IN TESTIMONY WHEREOF, WE HAVE HEREUNTO SET OUR HAND AND ATTEST THAT THE
SIGNATURES SET OPPOSITE THE NAMES LISTED ABOVE ARE THEIR GENUINE SIGNATURES.
WE EACH HAVE READ ALL THE PROVISIONS OF THIS RESOLUTION, AND WE EACH PERSONALLY
AND ON BEHALF OF THE COMPANY CERTIFY THAT ALL STATEMENTS AND REPRESENTATIONS
MADE IN THIS RESOLUTION ARE TRUE AND CORRECT. THIS LIMITED LIABILITY COMPANY
RESOLUTION TO GRANT COLLATERAL / GUARANTEE IS DATED DECEMBER 21, 2004.
THIS RESOLUTION IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS RESOLUTION IS
AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO
LAW.
CERTIFIED TO AND ATTESTED BY:
X /s/ Xxxxxxx X. Xxxxxx (Seal)
-------------------------------------------------
Xxxxxxx X. Xxxxxx, Member of Xxxxxx Venutures LLC
X /s/ Xxxx X. Xxxxxx (Seal)
-------------------------------------------------
Xxxx X. Xxxxxx, Member of Xxxxxx Ventures LLC
NOTE: If the members signing this Resolution are designated by the foregoing
document as one of the members authorized to act on the Company's behalf, it is
advisable to have this Resolution signed by at least one non-authorized member
of the Company.
[ILLEGIBLE]
RESOLUTION OF LIMITED LIABILITY COMPANY PARTNER
Borrower: Advanced Life Sciences, Inc. Lender: THE LEADERS BANK
0000 Xxxxx Xxxxx 0000 XXXX XXXX, XXXXX 000
Xxxxxxxxx, XX 00000 XXX XXXXX, XX 00000
Company: Xxxxxx Ventures LLC
0000 Xxxxx Xxxx (Xxxxxxxxxxxxx Xxxxxx)
Xxxxxxxxx, XX 00000
WE, THE UNDERSIGNED, DO HEREBY CERTIFY THAT:
ORGANIZATION. The Company is a limited liability company which is, and at all
times shall be, duly organized, validly existing, and in good standing under and
by virtue of the laws of the State of Delaware. The Company is duly authorized
to transact business in the State of Illinois and all other states in which the
Company is doing business, having obtained all necessary filings, governmental
licenses and approvals for each state in which the Company is doing business.
Specifically, the Company is, and at all times shall be, duly qualified as a
foreign limited liability company in all states in which the failure to so
qualify would have a material adverse effect on its business or financial
condition. The Company has the full power and authority to own its properties
and to transact the business in which it is presently engaged or presently
proposes to engage. The Company maintains an office at 0000 Xxxxx Xxxx
(Xxxxxxxxxxxxx Xxxxxx), Xxxxxxxxx, XX 00000. Unless the Company has designated
otherwise in writing, the principal office is the office at which the Company
keeps its books and records including its records concerning the Collateral. The
Company will notify Lender prior to any change in the location of The Company's
state of organization or any change in The Company's name. The Company shall do
all things necessary to preserve and to keep in full force and effect its
existence, rights and privileges, and shall comply with all regulations, rules,
ordinances, statutes, orders and decrees of any governmental or
quasi-governmental authority or court applicable to the Company and The
Company's business activities.
RELATIONSHIP. The Company is a Member in BioStart Property Group, LLC. BioStart
Property Group, LLC has, including those which may be described on any exhibit
or schedule attached to this Resolution. The Company has considered the value to
itself of BioStart Property Group, LLC.
AUTHORIZATION TO BE A MEMBER. The Company is authorized to be and become a
Member in the Limited Liability Company named BioStart Property Group, LLC,
whose office is at 0000 Xxxxx Xxxx (Xxxxxxxxxxxxx Xxxxxx), Xxxxxxxxx, XX 00000.
RESOLUTIONS ADOPTED. At a meeting of the members of the Company, duly called and
held on December 21, 2004, at which a quorum was present and voting, or by other
duly authorized action in lieu of a meeting, the resolutions set forth in this
Resolution were adopted.
MEMBERS. The following named persons are members of Xxxxxx Ventures LLC:
NAMES TITLES AUTHORIZED ACTUAL SIGNATURES
----- ------ ---------- -----------------
Xxxxxxx X. Xxxxxx Member Y X /s/ Xxxxxxx X. Xxxxxx
------------------------
Xxxx X. Xxxxxx Member Y X /s/ Xxxx X. Xxxxxx
------------------------
ACTIONS AUTHORIZED. Any two (2) of the authorized persons listed above may enter
into any agreements of any nature with Lender, and those agreements will bind
the Company. Specifically, but without limitation, any two (2) of such
authorized persons are authorized, empowered, and directed to do the following
for and on behalf of the Company:
EXECUTE DOCUMENTS. To execute and deliver to Lender the form of Agreement
To Provide Insurance and other loan documents submitted by Lender,
confirming the nature and existence of BioStart Property Group, LLC,
including the Company's participation in BioStart Property Group, LLC as a
Member.
AUTHORIZE MEMBERS. To authorize other members or employees of the Company,
from time to time, to act in their stead or as their successors on behalf
of the Company as Member in BioStart Property Group, LLC.
FURTHER ACTS. To do and perform such other acts and things and to execute
and deliver such other documents and agreements, including agreements
waiving the right to a trial by jury and confessing judgment against the
Company, as the members may in their discretion deem reasonably necessary
or proper in order to carry into effect the provisions of this Resolution.
NOTICES TO LENDER. The Company will promptly notify Lender in writing at
Lender's address shown above (or such other addresses as Lender may designate
from time to time) prior to any (A) change in the Company's name; (B) change in
the Company's assumed business name(s); (C) change in the management or in the
Members of the Company; (D) change in the authorized signer(s); (E) change in
the Company's principal office address; (F) change in the Company's state of
organization; (G) conversion of the Company to a new or different type of
business entity; or (H) change in any other aspect of the Company that directly
or indirectly relates to any agreements between the Company and Lender. No
change in the Company's name or state of organization will take effect until
after Lender has received notice.
PARTICIPATION AUTHORIZED. The Company's participation in BioStart Property
Group, LLC as a Member and the execution, delivery, and performance of the
documents described herein have been duly authorized by all necessary action by
the Company and do not conflict with, result in a violation of, or constitute a
default under (A) any provision of its articles of organization, or any
agreement or other instrument binding upon the Company or (B) any law,
governmental regulation, court decree, or order applicable to the Company.
CERTIFICATION CONCERNING MEMBERS AND RESOLUTIONS. The members named above are
duly elected, appointed, or employed by or for the Company, as the case may be,
and occupy the positions set opposite their respective names. This Resolution
now stands of record on the books of the Company, is in full force and effect,
and has not been modified or revoked in any manner whatsoever.
CONTINUING VALIDITY. Any and all acts authorized pursuant to this Resolution and
performed prior to the passage of this Resolution are hereby ratified and
approved. This Resolution shall be continuing, shall remain in full force and
effect and Lender may rely on it until written notice of its revocation shall
have been delivered to and received by Lender at Lender's address shown above
(or such addresses as Lender may designate from time to time). Any such notice
shall not affect any of the Company's agreements or commitments in effect at the
time notice is given.
IN TESTIMONY WHEREOF, WE HAVE HEREUNTO SET OUR HAND AND ATTEST THAT THE
SIGNATURES SET OPPOSITE THE NAMES LISTED ABOVE ARE THEIR GENUINE SIGNATURES.
WE EACH HAVE READ ALL THE PROVISIONS OF THIS RESOLUTION, AND WE EACH PERSONALLY
AND ON BEHALF OF THE COMPANY CERTIFY THAT ALL STATEMENTS AND REPRESENTATIONS
MADE IN THIS RESOLUTION ARE TRUE AND CORRECT. THIS RESOLUTION OF LIMITED
LIABILITY COMPANY PARTNER IS DATED DECEMBER 21, 2004.
RESOLUTLON OF LIMITED LIABILITY COMPANY PARTNER
(Continued) Page 2
CERTIFIED TO AND ATTESTED BY:
X /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx, Member of Xxxxxx Ventures LLC
X /s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx, Member of Xxxxxx Ventures LLC
[ILLEGIBLE]
YOUR RIGHT TO PRIVACY
Grantor: BioStart Property Group, LLC Lender: THE LEADERS BANK
0000 Xxxxx Xxxx (International Centre) 0000 XXXX XXXX, XXXXX 000
Xxxxxxxxx, XX 00000 XXX XXXXX, XX 00000
OUR PRIVACY PLEDGE TO YOU
As a customer of Leaders Bank, you provide us with important information about
yourself. We believe it is our responsibility to safeguard your personal and
financial information. While some financial institutions share account owner
information with other businesses, we are committed to keeping it confidential.
We have developed the following privacy policy to ensure you the confidentiality
you deserve. You have our promise that we will adhere to these guidelines. It is
our pledge to you.
THE CONFIDENTIALITY, SECURITY, AND INTEGRITY OF YOUR NONPUBLIC PERSONAL
INFORMATION. We restrict access to nonpublic personal information about you to
those employees who need to know that information to provide products or
services to you. We maintain physical, electronic, and procedural safeguards
that comply with federal standards to guard your nonpublic personal information.
NONPUBLIC PERSONAL INFORMATION WE COLLECT. We collect nonpublic personal
information about you from the following sources:
- Information we receive from you on applications or other forms
- Information about your transactions with us or nonaffiliated third parties
- Information we receive from a consumer reporting agency
- Information we receive from you on applications or other forms
- Information about your transactions with us, our affiliates, or others
- Information we receive from a consumer reporting agency
NONPUBLIC PERSONAL INFORMATION AND FORMER CUSTOMERS. We do not disclose
nonpublic personal information about former customers, except as permitted by
law.
NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES.
Please notify us if we report any inaccurate information about your account(s)
to a consumer reporting agency. Your written notice describing the specific
inaccuracy(ies) should be sent to us at the following address: The Leaders Bank
X.X. Xxx 0000 Xxx Xxxxx, XX 00000-0000
I acknowledge receipt of Lender's Privacy Policy.
BIOSTART PROPERTY GROUP, LLC
XXXXXX VENTURES LLC, Manager of BioStart Property Group, LLC
By:/s/ Xxxxxxx X. Xxxxxx 12/22/04 By:/s/ Xxxx X. Xxxxxx 12/22/04
------------------------------------ -------- ---------------------------- --------
Xxxxxxx X. Xxxxxx, Member of Xxxxxx Date Xxxx X. Xxxxxx, Member of Xxxxxx Ventures Date
Ventures LLC LLC
[ILLEGIBLE]
YOUR RIGHT TO PRIVACY
Guarantor: Xxxxxx Ventures LLC Lender: THE LEADERS BANK
0000 Xxxxx Xxxx (International Centre) 0000 XXXX XXXX, XXXXX 000
Xxxxxxxxx, XX 00000 XXX XXXXX, XX 00000
OUR PRIVACY PLEDGE TO YOU
As a customer of Leaders Bank, you provide us with important information about
yourself. We believe it is our responsibility to safeguard your personal and
financial information. While some financial institutions share account owner
information with other businesses, we are committed to keeping it confidential.
We have developed the following privacy policy to ensure you the confidentiality
you deserve. You have our promise that we will adhere to these guidelines. It is
our pledge to you.
THE CONFIDENTIALITY, SECURITY, AND INTEGRITY OF YOUR NONPUBLIC PERSONAL
INFORMATION. We restrict access to nonpublic personal information about you to
those employees who need to know that information to provide products or
services to you. We maintain physical, electronic, and procedural safeguards
that comply with federal standards to guard your nonpublic personal information.
NONPUBLIC PERSONAL INFORMATION WE COLLECT. We collect nonpublic personal
information about you from the following sources:
- Information we receive from you on applications or other forms
- Information about your transactions with us or nonaffiliated third parties
- Information we receive from a consumer reporting agency
- Information we receive from you on applications or other forms
- Information about your transactions with us, our affiliates, or others
- Information we receive from a consumer reporting agency
NONPUBLIC PERSONAL INFORMATION AND FORMER CUSTOMERS. We do not disclose
nonpublic personal information about former customers, except as permitted by
law.
NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES.
Please notify us if we report any inaccurate information about your account(s)
to a consumer reporting agency. Your written notice describing the specific
inaccuracy(ies) should be sent to us at the following address: The Leaders Bank
X.X. Xxx 0000 Xxx Xxxxx, XX 00000-0000
I acknowledge receipt of Lender's Privacy Policy.
XXXXXX VENTURES LLC
By:/s/ Xxxxxxx X. Xxxxxx 12/22/04 BY:/s/ Xxxx X. Xxxxxx 12/22/04
------------------------------------ -------- ---------------------------- --------
Xxxxxxx X. Xxxxxx, Member of Xxxxxx Date Xxxx X. Xxxxxx, Member of Xxxxxx Ventures Date
Ventures LLC LLC
[ILLEGIBLE]
YOUR RIGHT TO PRIVACY
Guarantor: Xxxx X. Xxxxxx Lender: THE LEADERS BANK
0000 Xxxxx Xxxxx 0000 XXXX XXXX, XXXXX 000
Xxxxxxx Xxxxx, XX 00000-0000 XXX XXXXX, XX 00000
OUR PRIVACY PLEDGE TO YOU
As a customer of Leaders Bank, you provide us with important information about
yourself. We believe it is our responsibility to safeguard your personal and
financial information. While some financial institutions share account owner
information with other businesses, we are committed to keeping it confidential.
We have developed the following privacy policy to ensure you the confidentiality
you deserve. You have our promise that we will adhere to these guidelines. It is
our pledge to you.
THE CONFIDENTIALITY, SECURITY, AND INTEGRITY OF YOUR NONPUBLIC PERSONAL
INFORMATION. We restrict access to nonpublic personal information about you to
those employees who need to know that information to provide products or
services to you. We maintain physical, electronic, and procedural safeguards
that comply with federal standards to guard your nonpublic personal information.
NONPUBLIC PERSONAL INFORMATION WE COLLECT. We collect nonpublic personal
information about you from the following sources:
- Information we receive from you on applications or other forms
- Information about your transactions with us or nonaffiliated third parties
- Information we receive from a consumer reporting agency
- Information we receive from you on applications or other forms
- Information about your transactions with us, our affiliates, or others
- Information we receive from a consumer reporting agency
NONPUBLIC PERSONAL INFORMATION AND FORMER CUSTOMERS. We do not disclose
nonpublic personal information about former customers, except as permitted by
law.
NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES.
Please notify us if we report any inaccurate information about your account(s)
to a consumer reporting agency. Your written notice describing the specific
inaccuracy(ies) should be sent to us at the following address: The Leaders Bank
X.X. Xxx 0000 Xxx Xxxxx, XX 00000-0000
I acknowledge receipt of Lender's Privacy Policy.
X /s/ Xxxx X. Xxxxxx 12/22/04
------------------------- --------
Xxxx X. Xxxxxx Date
[ILLEGIBLE]
