TO VENUE IN THE STATE OF NEW YORK AND ANY OBJECTION TO AN
ACTION OR PROCEEDING IN THE STATE OF NEW YORK ON THE BASIS OF FORUM NON
CONVENIENS.
(I)
EACH PARTY HERETO HEREBY AGREES TO WAIVE
ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS AGREEMENT.
THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL ENCOMPASSING OF ANY DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE
TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS.
EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT FOR EACH PARTY TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH PARTY
HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH
PARTY WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS.
EACH PARTY FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH
ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY
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AND VOLUNTARILY WAIVES ITS RIGHTS TO A JURY TRIAL FOLLOWING SUCH CONSULTATION.
THIS WAIVER IS IRREVOCABLE, MEANING THAT, NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS AND SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT.
IN THE EVENT OF A LITIGATION, THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(J)
THIS AGREEMENT MAY BE EXECUTED IN ANY
NUMBER OF COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN
ORIGINAL AND, ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME
AGREEMENT.
IN THE EVENT THAT ANY SIGNATURE IS DELIVERED BY FACSIMILE
TRANSMISSION, SUCH SIGNATURE SHALL CREATE A VALID BINDING OBLIGATION OF THE
PARTY EXECUTING (OR ON WHOSE BEHALF SUCH SIGNATURE IS EXECUTED) THE SAME WITH
THE SAME FORCE AND EFFECT AS IF SUCH FACSIMILE SIGNATURE WERE THE ORIGINAL
THEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement to be
duly executed on the day and year first above written.
Aerogen, Inc.
By:
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement to be
duly executed on the day and year first above written.
SF CAPITAL PARTNERS, LTD.
By:
Name:
Brian H. Davidson
Title:
Authorized Signatory
Address for Notice:
c/o Staro Asset Management, LLC
3600 South Lake Drive
St. Francis, Wisconsin 53235
Facsimile No.:
(414) 294-7700
Attn.:
Brian H. Davidson
With a copy to:
Bryan Cave LLP
1290 Avenue of the Americas
New York, NY
10104
Facsimile No.: (212) 541-4630 and (212) 541-1432
Attn:
Eric L. Cohen, Esq.
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Exhibit G
INTELLECTUAL PROPERTY SECURITY AGREEMENT
INTELLECTUAL PROPERTY SECURITY AGREEMENT (the "Agreement"), dated as of
September __, 2003, among Aerogen, Inc., a Delaware corporation (the
"Borrower"), and the lenders signatory hereto (each lender including their
respective successors, endorsees, transferees and