FOR SALE OF COLLATERAL BY
BORROWER.
THE BORROWER SHALL BE ENTITLED TO SELL ALL OR A PORTION OF THE
COLLATERAL TO AN UNAFFILIATED PURCHASER FOR A NET PURCHASE PRICE WHICH IS EQUAL
TO OR GREATER THAN THE FAIR MARKET VALUE OF SUCH COLLATERAL (THE "PURCHASE
PRICE") IF SUCH PURCHASER SHALL DELIVER THE PURCHASE PRICE (OR PORTION THEREOF,
IF APPLICABLE) TO EACH SECURED PARTY (ON A PRO-RATA BASIS) IN PAYMENT OF THE
BORROWER PREPAYMENT PRICE (AS DEFINED IN THE DEBENTURES) FOR THE PREPAYMENT IN
FULL, PURSUANT TO SECTION 11 OF THE DEBENTURE, OF SUCH PORTION OF THE
OUTSTANDING PRINCIPAL AMOUNT OF DEBENTURES HELD BY SUCH SECURED PARTY FOR WHICH
SUCH BORROWER PREPAYMENT PRICE SHALL APPLY.
UPON SECURED PARTIES' UNCONDITIONAL
RECEIPT OF THE PURCHASE PRICE, THE SECURED PARTIES' LIENS IN ANY ITEM OF
COLLATERAL THAT IS SUBJECT OF THE FOREGOING SALE SHALL AUTOMATICALLY TERMINATE
AND THE SECURED PARTIES SHALL COOPERATE WITH THE BORROWER IN MAKING ALL
APPROPRIATE FILINGS INCLUDING UCC FILINGS IN ORDER TO EVIDENCE SUCH
TERMINATION.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IF, AS A
RESULT
OF A POTENTIAL SALE OF COLLATERAL PURSUANT TO THE IMMEDIATELY PRECEDING
SENTENCE, THERE SHALL REMAIN AN OUTSTANDING PRINCIPAL AMOUNT OF DEBENTURES
(INCLUDING ACCRUED INTEREST THEREON) THEN HELD BY THE SECURED PARTIES, THEN SUCH
SALE SHALL ONLY BE PERMITTED 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
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.
11
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'