EXHIBIT 10.4.30
ASSIGNMENT OF DEPOSIT ACCOUNT
- ------------------------------------------------------------------------------------------------
PRINCIPAL LOAN DATE MATURITY LOAN NO. CALL COLLATERAL ACCOUNT OFFICER INITIALS
$1,000,000.00 09-25-1998 08-31-1999 010 0164044165 97300
- ------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicability of
this document to any particular loan or item.
- ------------------------------------------------------------------------------------------------
Borrower: NEOPROBE CORPORATION Lender: Bank One, NA
425 METRO PLACE NORTH, SUITE 400 Home Office - Columbus
DUBLIN, OH 43017 100 East Broad Street
Columbus, OH 43271
================================================================================
THIS ASSIGNMENT OF DEPOSIT ACCOUNT is entered into by NEOPROBE CORPORATION
(referred to below as "Grantor") for the benefit of Bank One, NA (referred to
below as "Lender").
ASSIGNMENT. For valuable consideration, Grantor assigns, pledges and grants to
Lender, a security interest in all of Grantor's rights, title and interest in
the Collateral, including without limitation the Account described below, 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.
DEFINITIONS. The following words shall have the following meanings when used in
this Agreement. Terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code as adopted in
the State of Ohio (the "Code"). All references to dollar amounts shall mean
amounts in lawful money of the United States of America.
ACCOUNT. The word "Account" means the deposit account described below in the
definition for "Collateral."
AGREEMENT. The word "Agreement" means this Assignment of Deposit Account, as
this Assignment of Deposit Account may be amended or modified from time to
time, together with all exhibits and schedules attached to this Assignment
of Deposit Account from time to time.
COLLATERAL. The word "Collateral" means the following described deposit
account:
BANK ONE SAVINGS ACCOUNT # 1565503917 ISSUED BY LENDER IN AN AMOUNT NOT
LESS THAN $1,000,000.00
together with (a) all interest, whether now accrued or hereafter accruing on
the Account; (b) all additional deposits hereafter made to the Account; (c)
all instruments, certificates, passbooks, documents, agreements and other
writings evidencing the Account; (d) all records relating to the Account;
and (e) all renewals, replacements and substitutions for any of the
foregoing.
EVENT OF DEFAULT. The words "Event of Default" mean and include any of the
Events of Default set forth below in the section titled "Events of Default."
GRANTOR. The word "Grantor" means NEOPROBE CORPORATION, its successors and
assigns.
GUARANTOR. The word "Guarantor" means and includes without limitation, each
and all of the guarantors, sureties, and accommodation parties in connection
with the indebtedness.
INDEBTEDNESS. The word "Indebtedness" means the indebtedness evidenced by
the Note, including all principal and accrued interest thereon, together
with all other liabilities, costs and expenses for which Grantor is
responsible under this Agreement or under any of the Related Documents. In
addition, the word "Indebtedness" includes all other obligations, debts and
liabilities, plus any accrued interest thereon, owing by Grantor, or any one
or more of them, to Lender of any kind or character, now existing of
hereafter arising, as well as all present and future claims by Lender
against Grantor, or any one or more of them, and all renewals, extensions,
modifications, substitutions and rearrangements of any of the foregoing;
whether such Indebtedness arises by note, draft, acceptance, guaranty,
endorsement, letter of credit, assignment, overdraft, indemnity agreement or
otherwise; whether such Indebtedness is voluntary or involuntary, due or not
due, direct or indirect, absolute or contingent, liquidated or unliquidated;
whether Grantor may be liable individually or jointly with others; whether
Grantor may be liable primarily or secondarily or as debtor, maker, comaker,
drawer, endorser, guarantor, surety, accommodation party or otherwise.
LENDER. The word "Lender" means Bank One, NA, its successors and assigns.
NOTE. The word "Note" means the promissory note dated September 25, 1998, in
the principal amount of $1,000,000.00 from NEOPROBE CORPORATION to Lender,
together with all renewals of, extensions of, modifications of, refinancings
of, consolidations of and substitutions for such promissory note.
RELATED DOCUMENTS. The words "Related Documents" mean and include without
limitation the Note and all credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgages, deeds
of trust, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Note.
GRANTOR'S REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL. 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 loans, liens, encumbrances, and claims except as disclosed to and
accepted by Lender in writing.
RIGHT TO GRANT ASSIGNMENT AND SECURITY INTEREST. Grantor has the full right,
power, and authority to enter into this Agreement and to assign and grant a
security interest in the Collateral to Lender.
NO FURTHER TRANSFER. Grantor shall have no right to withdraw, possess or
control the Collateral or any funds in the Account and agrees not to sell,
assign, encumber, or otherwise dispose of any of Grantor's rights in the
Collateral.
- --------------------------------------------------------------------------------
09-25-1998 ASSIGNMENT OF DEPOSIT ACCOUNT Page 2
Loan No. (Continued)
- --------------------------------------------------------------------------------
NO DEFAULTS. There are no defaults relating to the Collateral, and there are
no offsets or counterclaims to the same. Grantor will strictly and promptly
do everything required of Grantor under the terms, conditions, promises, and
agreements contained in or relating to the Collateral.
PROCEEDS. Any and all replacement or renewal certificates, instruments, or
other benefits or proceeds related to the Collateral that are received by
Grantor shall be held by Grantor in trust for Lender and immediately shall
be delivered by Grantor to Lender to be held as part of the Collateral.
SOLVENCY. Grantor further represents and warrants that, as of the date
hereof, and after giving effect to this Agreement and the completion of all
other transactions contemplated by Grantor at the time of the execution of
this Agreement, (i) Grantor is and will be solvent, (ii) the fair saleable
value of Grantor's assets exceeds and will continue to exceed Grantor's
liabilities (both fixed and contingent), (iii) Grantor is paying and will
continue to pay Grantor's debts as they mature, and (iv) if Grantor is not
an individual, Grantor has and will have sufficient capital to carry on
Grantor's businesses and all businesses in which Grantor is about to engage.
LIEN NOT RELEASED. The lien, security interest and other security rights of
Lender hereunder shall not be impaired by any indulgence, moratorium or
release granted by Lender, including but not limited to, the following: (a)
any renewal, extension, increase or modification of any of the Indebtedness;
(b) any surrender, compromise, release, renewal, extension, exchange or
substitution granted in respect of any of the Collateral; (c) any release or
indulgence granted to any endorser, guarantor or surety of any of the
Indebtedness; (d) any release of any other collateral for any of the
Indebtedness; (e) any acquisition of any additional collateral for any of
the Indebtedness; and (f) any waiver or failure to exercise any right, power
or remedy granted herein, by law or in any of the Related Documents.
LENDER'S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE COLLATERAL. While this
Agreement is in effect, Lender shall retain the rights to possession of the
Collateral, together with any and all evidence of the Collateral, such as
certificates or passbooks. Lender shall use ordinary reasonable care in the
physical preservation and custody of any certificate or passbook for the
Collateral but shall have no other obligation to protect the Collateral or its
value. This Agreement will remain in effect until all of the following have been
satisfied: (a) there no longer is any Indebtedness owing to Lender; (b) all
other obligations and commitments secured by this Agreement have been fulfilled,
expired or terminated; and (c) Lender's receipt of a written request from
Grantor for the termination hereof.
EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default
under this Agreement:
DEFAULT ON INDEBTEDNESS. Failure of Grantor to make any payment when due on
the Indebtedness.
OTHER DEFAULTS. Failure of Grantor to comply with or to perform any other
term, obligation, covenant or condition contained in this Agreement, the
Note, any of the other Related Documents or in any other agreement now
existing or hereafter arising 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 Borrower'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 under this Agreement, the Note or any of the other
Related Documents is false or misleading in any material respect.
DEFAULT TO THIRD PARTY. The occurrence of any event which permits the
acceleration of the maturity of any indebtedness owing by Grantor or any
Guarantor to any third party under any agreement or undertaking.
BANKRUPTCY OR INSOLVENCY. If the Grantor or any Guarantor: (i) becomes
insolvent, or makes a transfer in fraud of creditors, or makes an assignment
for the benefit of creditors, or admits in writing its inability to pay its
debts as they become due; (ii) generally is not paying its debts as such
debts become due; (iii) has a receiver, trustee or custodian appointed for,
or take possession of, all or substantially all of the assets of such party
or any of the Collateral, either in a proceeding brought by such party or in
a proceeding brought against such party and such appointment is not
discharged or such possession is not terminated within sixty (60) days after
the effective date thereof or such part consents to or acquiesces in such
appointment or possession; (iv) files a petition for relief under the United
States Bankruptcy Code or any other present or future federal or state
insolvency, bankruptcy or similar laws (all of the foregoing hereinafter
collectively called "APPLICABLE BANKRUPTCY LAW") or an involuntary petition
for relief is filed against such party under any Applicable Bankruptcy Law
and such involuntary petition is not dismissed within sixty (60) days after
the filing thereof, or an order for relief naming such party is entered
under any Applicable Bankruptcy Law, or any composition, rearrangement,
extension, reorganization or other relief of debtors now or hereafter
existing is requested or consented to by such party; (v) fails to have
discharged within a period of sixty (60) days any attachment, sequestration
or similar writ levied upon any property of such party; or (vi) fails to pay
within thirty (30) days any final money judgment against such party.
LIQUIDATION, DEATH AND RELATED EVENTS. If Grantor or any Guarantor is an
entity, the liquidation, dissolution, merger or consolidation of any such
entity or, if any of such parties is an individual, the death or legal
incapacity of any such individual.
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 the Collateral or any other collateral securing
the Indebtedness.
INSECURITY. Lender deems itself insecure by in good faith believing the
prospect of payment or performance hereunder or under any of the Related
Documents is impaired.
RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default, or
at any time thereafter, Lender may exercise any one or more of the following
rights and remedies, in addition to any rights or remedies that may be available
at law, in equity, or otherwise:
- --------------------------------------------------------------------------------
09-25-1998 ASSIGNMENT OF DEPOSIT ACCOUNT Page 3
Loan No. (Continued)
- --------------------------------------------------------------------------------
ACCELERATE INDEBTEDNESS. Lender may declare all Indebtedness of Grantor to
Lender immediately due and payable, without notice of any kind to Grantor.
APPLICATION OF ACCOUNT PROCEEDS. Lender may, without notice to Grantor,
withdraw the funds in the Account (or, if the Account was not issued by
Lender, obtain all funds in the Account from the issuer of the Account) and
apply them to the Indebtedness in such manner as Lender shall at its
discretion determine in accordance with applicable law. If the Account is
subject to an early withdrawal penalty, that penalty may be deducted from
the Account before its application to the Indebtedness, whether the Account
is with Lender or some other institution. Any excess funds remaining after
application of the Account proceeds to the Indebtedness will be paid to
Grantor as the interest of Grantor may appear. Lender also shall have all
the rights of a secured party under the Code, even if the account is not
otherwise subject to the Code concerning security interests.
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.
CUMULATIVE REMEDIES. All of Lender's rights and remedies, whether evidenced
by this Agreement 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 to exercise its remedies. Grantor
waves any right to require Lender to proceed against any third party,
exhaust any other security for the Indebtedness or pursue any other right or
remedy available to Lender.
MISCELLANEOUS PROVISIONS.
AMENDMENTS. This Agreement, together with all Related Documents, constitutes
the entire understanding and agreement of the parties as to the matters set
forth in this Agreement and supercedes all prior written and oral agreements
and understandings, if any, regarding same. 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.
APPLICABLE LAW. This Assignment has been delivered to Lender and accepted by
Lender in the State of Ohio. Subject to the provisions on arbitration in any
Related Document, this Assignment shall be governed by and construed in
accordance with the laws of the State of Ohio without regard to any conflict
of laws or provisions thereof.
JURY WAIVER. THE UNDERSIGNED AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY
VOLUNTARILY, KNOWLINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON
CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG THE UNDERSIGNED AND LENDER
ARISING OUT OF OR IN ANY WAY RELATED TO THIS DOCUMENT OR ANY OTHER RELATED
DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE
FINANCING DESCRIBED HEREIN OR IN THE OTHER RELATED DOCUMENTS.
ATTORNEYS' FEES; EXPENSES. Grantor will upon demand pay to Lender the amount
of any and all costs and expenses (including without limitation, reasonable
attorneys' fees and expenses) which Lender may incur in connection with (i)
the perfection and preservation of the collateral assignment and security
interests created under this Agreement, (ii) the custody, preservation, use
or operation of, or the sale of, collection from, or other realization upon,
the Collateral, (iii) the exercise or enforcement of any of the rights of
Lender under this Agreement, or (iv) the failure by Grantor to perform or
observe any of the provisions hereof.
INDEMNITY. Grantor hereby agrees to indemnity, defend and hold harmless
Lender, and its officers, directors, shareholders, employees, agents and
representatives (each an "INDEMNIFIED PERSON") from and against any and all
liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
(collectively, the "CLAIMS") which may be imposed on, incurred by or
asserted against, any Indemnified Person (whether or not caused by any
Indemnified Person's sole, concurrent or contributory negligence) arising in
connection with the Related Documents, the Indebtedness or the Collateral
(including, without limitation, the enforcement of the Related Documents,
and the defense of any Indemnified Person's action and/or inactions in
connection with the Related Documents), except to the limited extent that
the Claims against the Indemnified Person are proximately caused by such
Indemnified Person's gross negligence or willful misconduct. The
indemnification provided for in this Section shall survive the termination
of this Agreement and shall extend and continue to benefit each individual
or entity who is or has at any time been an Indemnified Person hereunder.
NOTICES. All notices required to be given under this Agreement shall be
given in writing, and shall be effective when actually delivered or when
deposited with a nationally recognized overnight courier or deposited in the
United States mail, first class, postage prepaid, addressed to the party to
whom the notice is to be given at the address shown above. 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. To the extent permitted by applicable law, if
there is more than one Grantor, notice to any Grantor will constitute notice
to all Grantors. For notice purposes, Grantor will keep Lender informed at
all times of Grantor's current address(es).
POWER OF ATTORNEY. Grantor hereby irrevocably appoints Lender as its true
and lawful attorney-in-fact, such power of attorney being coupled with an
interest, with full power of substitution to do the following in the place
and stead of Grantor and in the name of Grantor: (a) to demand, collect,
receive, receipt for, sue and recover all sums of money or other property
which may now or hereafter become due, owing or payable from the Collateral;
(b) to execute, sign and endorse any and all claims, instruments, receipts,
checks, drafts or 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, to execute and deliver its release and
settlement for the claim; (d) to file any claim or claims or to take any
action or institute or take part in any proceedings, either in its own name
of in the name of Grantor, or otherwise, which in the discretion of Lender
may seem to be necessary or advisable; (e) transfer the Account into the
name of Lender or its nominee; and (f) take any other action which Lender
may deem necessary or appropriate to protect and preserve the rights,
- --------------------------------------------------------------------------------
09-25-1998 ASSIGNMENT OF DEPOSIT ACCOUNT Page 4
Loan No. (Continued)
- --------------------------------------------------------------------------------
title and interest of Lender hereunder. This power is given as security for
the Indebtedness, and the authority hereby conferred is and shall be
irrevocable and shall remain in full force and effect until renounced by
Lender.
SEVERABILITY. If a court of competent jurisdiction finds any provision of
this Agreement to be invalid or unenforceable as to any person or
circumstance, such finding shall not render that provision invalid or
unenforceable as to any other persons or circumstances. If feasible, any
such offending provision shall be deemed to be modified to be within the
limits of enforceability or validity; however, if the offending provision
cannot be so modified, it shall be stricken and all other provisions of this
Agreement in all other respects shall remain valid and enforceable.
SUCCESSOR INTERESTS. Subject to the limitations set forth above on transfer
of the Collateral, this Agreement shall be binding upon and inure to the
benefit of the parties, their successors and assigns; provided, however,
Grantor's rights and obligations hereunder may not be assigned or otherwise
transferred without the prior written consent of Lender.
WAIVER. 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 to thereafter 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.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS ASSIGNEMENT OF
DEPOSIT ACCOUNT AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED SEPTEMBER 25,
1998.
GRANTOR:
NEOPROBE CORPORATION
By: /s/ Brent L. Larson
-----------------------------
AUTHORIZED SIGNER
================================================================================