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Name and
Address of Grantor:
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Aristos
Pharmaceuticals, Inc.
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2000 Regency
Parkway, Suite 255
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Cary, NC
27518
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Name and
Address of Debtor:
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Cornerstone
Biopharma Holdings, Inc.
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2000 Regency
Parkway, Suite 255
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Cary, NC
27518
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Name and
Address of Secured Party:
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Paragon
Commercial Bank
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3535
Glenwood Avenue
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Raleigh, NC
27612
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Attn: Brian
K. Reid, Senior Vice President
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THIS
SECURITY AGREEMENT is made and entered into this 25
th
day of June, 2008 , by and
among Aristos Pharmaceuticals, Inc. (hereinafter called the
“Grantor” whether one or more in number, a corporation,
partnership, another legal entity or an individual), whose address
is 2000 Regency Parkway, Suite 255, Cary NC 27518 , and
Cornerstone Biopharma Holdings, Inc. (hereafter called the
“Debtor”), whose address is 2000 Regency Parkway,
Suite 255, Cary NC 27518 and Paragon Commercial
Bank (hereinafter called the “Secured Party”), a
North Carolina banking Corporation, whose address is 3535
Glenwood Avenue, Raleigh, NC 27612.
WHEREAS,
Cornerstone Biopharma Holdings, Inc. are indebted to Secured
Party in the amount of Four Million and 00/100 Dollars
($4,000,000.00) as evidenced by its note dated
April 21, 2005 ; and
WHEREAS,
Aristos Pharmaceuticals, Inc. is desirous of securing said
Note for the benefit of Cornerstone Biopharma Holdings, Inc.
with UCC filings (Secretary of State) on its properties
located at 2000 Regency Parkway, Suite 255, Cary NC
27518 (the “Property”).
NOW, THEREFORE, in
consideration of Ten Dollars ($10.00), the mutual covenants and
promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, Aristos Pharmaceuticals, Inc. hereby agree
to pledge their interest in the Property and related furnishings
and equipment as security for the Note as follows:
(1) CREATION
OF SECURITY INTEREST: Grantor and Debtor grants to Secured Party a
security interest in the Collateral described or referred to herein
to secure the performance of all direct, contingent, present and
future obligations of Debtor to Secured Party (the
“Obligations”).
(2) COLLATERAL: The Collateral is
classified generally as:
þ Accounts. Any and all accounts, accounts
receivable, receivables, contract rights, book debts, checks,
notes, drafts, instruments, chattel paper, acceptances, choses in
action, any and all amounts due to Debtor from a factor or other
forms of obligations and receivables now existing or hereafter
arising out of the business of the Debtor, as well as any and all
returned, refused and repossessed goods, and the cash or non-cash
proceeds resulting therefrom.
þ Inventory. Any and all of Debtor’s
inventory, including without limitation any and all goods held for
sale or lease or being processed for sale or lease in
Debtor’s business as now or hereafter conducted, whether now
owned or hereinafter acquired, including all materials, goods and
work in process, finished goods, and other tangible property held
for sale or lease or furnished or to be furnished under contracts
of service or used or consumed in Debtor’s business, along
with all documents (including documents of title) covering
inventory and all cash and non-cash proceeds from the sale of
inventory, including proceeds from insurance.
þ Equipment. Any and all of Debtor’s
furnishings and equipment, wherever located, whether now owned or
hereafter acquired, together with all increases, parts, fittings,
accessories, equipment, and special tools now or hereafter affixed
to any part thereof or used in connection therewith, and all
products, additions, substitutions, accessions, and all cash and
non-cash proceeds, including proceeds from insurance thereof and
thereto.
o Fixtures. All of Debtor’s fixtures
now existing or hereafter acquired, together with all substitutes
and replacements therefor, all accessions and attachments thereto,
and all tools, parts and equipment now or hereafter added to or
used in connection therewith. These goods are or will become
fixtures on the following described real estate
in County,
(State),
owned by [name of owner] more particularly described as
follows:
þ Instruments and/or Investment Documents.
The following described instruments and documents including,
without limitation, negotiable instruments, promissory notes, and
documents of title owned or to be owned by Debtor, certificates of
deposit, and all liens, security agreements, leases and other
contracts securing or otherwise relating to any of such instruments
or documents, and all cash and non-cash proceeds and products
thereof and such additional property receivable or distributed in
respect of or in exchange for all or any of such instruments or
documents.
þ General Intangibles. All patents,
trademarks, service marks, trade secrets, copyrights and exclusive
licenses (whether issued or pending) and all documents,
applications, materials and other matters related thereto, all
inventions, and all manufacturing, engineering and production
plans, drawings, specifications, processes and systems, all trade
names, computer programs, databases, systems and software
(including source and object codes), goodwill, choses in action and
all other general intangibles of Debtor whether now owned or
hereafter acquired and all cash and non-cash proceeds
thereof.
o Timber. All of Debtor’s uncut
timber growing or to be grown on the following described property,
and all cash and non-cash proceeds including proceeds from
insurance, and all products thereof (property
description):
1
þ Other — Description of Collateral
listed in box below:
Description of
Collateral
A blanket
first priority lien on all furnishings, equipment, inventory and
other items and types of personal property now owned or hereafter
acquired, all the company’s general intangibles and accounts
receivable, whether presently existing or arising in the future,
and all the proceeds and products from the foregoing (including
insurance proceeds) for Aristos Pharmaceuticals,
Inc.
In addition to
the foregoing, the collateral shall also include those items listed
on Schedule A, attached hereto and incorporated herein by
reference.
Check
here o if Debtor has no place of business in North
Carolina but resides in North Carolina. Check here
o
if Debtor has more than one place of
business in North Carolina . Check here þ if Debtor has only one place of business in
North Carolina, give county of business here:
WAKE.
If checked
here o the Collateral described above includes all
after-acquired Consumer Goods acquired by the Debtor within ten
(10) days after the Secured Party has given value pursuant to
this Agreement.
If checked
here o this is a purchase money security
agreement.
Any
additional Collateral acquired hereafter by the Grantor shall be
Collateral subject to this Agreement. All Collateral now or
hereafter subject to this Agreement includes the proceeds thereof
and any additions and accessions thereto. Nothing contained herein
shall be deemed consent to the sale of any Collateral.
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(3)
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GRANTOR’S UNDERTAKINGS: The
Grantor agrees:
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(A) that
Grantor will protect and properly care for the Collateral and no
Collateral will be misused, wasted or allowed to deteriorate except
for normal wear and tear;
(B) to use
the Collateral principally within the State of North Carolina and
not to affix the Collateral to other personal property (unless
other provision regarding the location or affixation of the
Collateral is noted herein) and not to affix the Collateral to real
property unless it is classified as a fixture hereinabove and the
requisite information is supplied;
(C) that
Secured Party may act as attorney for Grantor in adjusting and
canceling any such insurance coverage and in endorsing any
insurance draft and may retain for the satisfaction of the
Grantor’s Obligations any insurance proceeds and/or unearned
premium on such insurance;
(D) that upon
the request of Secured Party, Grantor will (i) provide an
updated appraisal of the Collateral and (ii) give to or
deposit with Secured Party additional Collateral to Secured
Party’s satisfaction;
(E) that
Collateral will not be changed, transferred, or otherwise disposed
of (except for sale of inventory in the ordinary course of
Debtor’s business) or be subjected to any unpaid charge,
unless the Secured Party consents in advance in writing to such
change, transfer or charge;
(F) to
procure or execute any Financing Statement or other document and do
any act or pay any costs which Secured Party deems necessary to
protect or perfect its security interest under this
Agreement;
(G) that the
Collateral will not be used for illegal purposes; and
(H) that
Secured Party shall have the right to examine and inspect the
Collateral and the books and records relating thereto, if any, at
any reasonable time and, upon demand, Grantor shall assemble the
Collateral at such place or places as Secured Party may designate
for the purpose of allowing Bank to examine same.
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(4)
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DEFAULT AND REMEDIES:
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(A) The
happening of any of the following events shall constitute a default
under this Agreement: (i) the occurrence of a default under
any note or other agreement secured hereby; (ii) the failure of
Grantor to perform any of the terms, stipulations and conditions
written into this Agreement; (iii) the insolvency of the
Debtor, or the application for the appointment of a receiver for
Debtor, the filing of a petition under any provision of the
Bankruptcy Code by or against Debtor or an assignment for the
benefit of creditors by or against Debtor; (iv) the entry of a
judgment against Debtor or the issuance or service of any
attachment, levy or garnishment against Debtor or the Collateral;
(v) the failure of Debtor to furnish from time to time at
Bank’s request, financial information with respect to Debtor;
(vi) a determination by Bank that the Obligations are insecure
or that a material adverse change in the financial condition of
Debtor has occurred since the date hereof; (vii) failure of
Debtor to perform any other agreement with Bank; (viii) any
representation or affirmation by the Debtor to Bank herein or by
separate writing is incorrect or false.
(B) Upon the
occurrence of a default as set forth in (A) above, at the
option of Bank, all or any one of the Obligations secured hereby
shall become immediately due and payable without demand or notice,
and Bank shall have at any time after default the rights and
remedies provided in the Uniform Commercial Code as enacted in the
State of North Carolina or other applicable law, or by any note or
other agreement secured hereby, and may, without limiting or
waiving in any way the aforesaid rights:
1.
Enter upon Grantor’s premises to take possession of the
Collateral or render it unusable, or require Grantor to assemble
the Collateral at any place designated by the Bank reasonably
convenient to both parties;
2.
Give any notice or notification to the Grantor required by the
Uniform Commercial Code by mailing such notice, at least five
(5) days before the event, if any, which is the subject of the
notice to the Grantor’s address shown herein. Five
(5) days’ notice to Grantor of any proposed action by
Bank shall be deemed reasonable and sufficient notice for all
purposes, provided, this provision shall not require a longer
period of notice than shall be reasonable under the circumstances
then existing;
3.
Use the proceeds of the dispositi
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