IF THE BORROWER SHALL DELIVER A BORROWER PREPAYMENT
NOTICE (AS DEFINED IN THE DEBENTURES) TO SUCH SECURED PARTIES PURSUANT TO WHICH
IT SHALL PAY TO SUCH SECURED PARTIES (ON A PRO-RATA BASIS) A BORROWER PREPAYMENT
PRICE EQUAL TO NO LESS THAN 50% OF THE PURCHASE PRICE.
14.
NOTICES.
ALL NOTICES, REQUESTS, DEMANDS AND
OTHER COMMUNICATIONS HEREUNDER SHALL BE IN WRITING, WITH COPIES TO ALL THE OTHER
PARTIES HERETO, AND SHALL BE DEEMED TO HAVE BEEN DULY GIVEN WHEN (I) IF
DELIVERED BY HAND, UPON RECEIPT, (II) IF SENT BY FACSIMILE, UPON RECEIPT OF
PROOF OF SENDING THEREOF, (III) IF SENT BY NATIONALLY RECOGNIZED OVERNIGHT
DELIVERY SERVICE (RECEIPT REQUESTED), THE NEXT BUSINESS DAY OR (IV) IF MAILED BY
FIRST-CLASS REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE
PREPAID, FOUR DAYS AFTER POSTING IN THE U.S. MAILS, IN EACH CASE IF DELIVERED TO
THE FOLLOWING ADDRESSES:
If to the Borrower:
Aerogen, Inc.
2071 Stierlin Court
Mountain View, CA 94043
Facsimile No.: (650) 864-7433
Attn: Chief Financial Officer
With a copy to:
Cooley Godward LLP
14
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Facsimile No.: (650) 849-7400
Attn: Robert J. Brigham, Esq.
If to Secured Parties:
To the address set forth under such Secured Parties'
name on the signature pages hereto.
15.
OTHER SECURITY.
TO THE EXTENT THAT THE
OBLIGATIONS ARE NOW OR HEREAFTER SECURED BY PROPERTY OTHER THAN THE COLLATERAL
OR BY THE GUARANTEE, ENDORSEMENT OR PROPERTY OF ANY OTHER PERSON, FIRM,
CORPORATION OR OTHER ENTITY, THEN THE SECURED PARTIES SHALL HAVE THE RIGHT, IN
THEIR SOLE DISCRETION, TO PURSUE, RELINQUISH, SUBORDINATE, MODIFY OR TAKE ANY
OTHER ACTION WITH RESPECT THERETO, WITHOUT IN ANY WAY MODIFYING OR AFFECTING ANY
OF THE SECURED PARTIES' RIGHTS AND REMEDIES HEREUNDER.
16.
ACTIONS BY SECURED PARTIES.
ANY ACTION
REQUIRED OR PERMITTED HEREUNDER TO BE TAKEN BY OR ON BEHALF OF THE SECURED
PARTIES SHALL, FOR SUCH ACTION TO BE VALID, REQUIRE THE APPROVAL OF THE
TWO-THIRDS-IN-INTEREST PRIOR TO THE TAKING OF SUCH ACTION.
IF THE CONSENT,
APPROVAL OR DISAPPROVAL OF THE SECURED PARTIES IS REQUIRED OR PERMITTED PURSUANT
TO THIS AGREEMENT, SUCH CONSENT, APPROVAL OR DISAPPROVAL SHALL ONLY BE VALID IF
GIVEN BY THE TWO-THIRDS-IN-INTEREST.
"TWO-THIRDS-IN-INTEREST" MEANS THE SECURED
PARTY OR SECURED PARTIES (AS THE CASE MAY BE) HOLDING IN EXCESS OF 2/3 OF THE
OUTSTANDING AGGREGATE PRINCIPAL AMOUNT UNDER THE DEBENTURES, DETERMINED ON A
CUMULATIVE BASIS.
17.
MISCELLANEOUS.
(A)
NO COURSE OF DEALING
BETWEEN THE BORROWER AND THE SECURED PARTIES, NOR ANY FAILURE TO EXERCISE, NOR
ANY DELAY IN EXERCISING, ON THE PART OF THE SECURED PARTIES, ANY RIGHT, POWER OR
PRIVILEGE HEREUNDER, UNDER THE DEBENTURES OR UNDER THIS AGREEMENT SHALL OPERATE
AS A WAIVER THEREOF; NOR SHALL ANY SINGLE OR PARTIAL EXERCISE OF ANY RIGHT,
POWER OR PRIVILEGE HEREUNDER OR THEREUNDER PRECLUDE ANY OTHER OR FURTHER
EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER RIGHT, POWER OR PRIVILEGE.
(B)
ALL OF THE RIGHTS AND REMEDIES OF THE
SECURED PARTIES WITH RESPECT TO THE COLLATERAL, WHETHER ESTABLISHED HEREBY, BY