EXHIBIT 10.38
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT (this "Agreement") dated October 31,
2001 between SILICON VALLEY BANK ("Bank"), whose address is 0000 Xxxxxx Xxxxx,
Xxxxx Xxxxx, Xxxxxxxxxx 00000, with a loan production office located at 000 Xxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and ESPERION THERAPEUTICS, INC.
("Borrower"), a Delaware corporation with offices located at 0000 X. Xxxxx
Xxxxxx, 000 XXX Xxxxx, Xxx Xxxxx, XX 00000 provides the terms on which Bank will
lend to Borrower and Borrower will repay Bank. The parties agree as follows:
1 ACCOUNTING AND OTHER TERMS
Accounting terms not defined in this Agreement will be construed
following GAAP Calculations and determinations must be made following GAAP. The
term "financial statements" includes the notes and schedules. The terms
"including" and "includes" always mean "including (or includes) without
limitation" in this or any Loan Document. Capitalized terms in this Agreement
shall have the meanings set forth in Section 13. This Agreement shall be
construed to impart upon Bank a duty to act reasonably at all times.
2 LOAN AND TERMS OF PAYMENT
2.1 ADVANCES. Bank Agrees to make Equipment Advances not to exceed $2,000,000.00
(Two Million and XX/100) for the term of this Agreement and Borrower agrees to
pay Bank the unpaid principal amount of all Equipment Advances and interest on
the unpaid principal amount of the Equipment Advances, in accordance with the
terms of this Agreement.
2.1.1 EQUIPMENT ADVANCES.
(a) Bank shall make Equipment Advances to Borrower in an amount not to
exceed the Committed Equipment Line in the following manner: (i) first in one
advance to occur on the Closing Date (the "Equipment Line No. 1"), and (ii)
thereafter, in an aggregate amount equal to the Committed Equipment Line, less
the outstanding principal amounts advanced pursuant to Equipment Line No. 1, at
any time from the Closing Date through the Equipment Availability End Date (the
"Equipment Line No. 2"). To evidence the Equipment Advance or Equipment
Advances, Borrower shall deliver to Bank, at the time of each Equipment Advance
request, a copy of an invoice for the Eligible Equipment to be purchased or
refinanced. Equipment Advance requests under Equipment Line No. 1 shall only be
permitted to finance Eligible Equipment for which the Borrower provides to Bank
an invoice dated 150 days or less before the Closing Date. Equipment Advance
requests under Equipment Line No. 2 shall only be permitted to finance Eligible
Equipment purchased on or after 180 days before the date of each Equipment
Advance. The Equipment Advances shall not exceed 100% of the invoice amount for
the financed Eligible Equipment. Up to 20% of the Equipment Advance may include
soft costs, such as transferable software licenses, leasehold improvements,
sales taxes, shipping, warranty charges, freight discounts and installation
expenses. Borrower may make no more than six (6) requests for an Equipment
Advance. The first Equipment Advance must be in an amount in
excess of $250,000. Each additional Equipment Advance after the first Advance
must be in an amount in excess of $50,000.
(b) Interest accrues from the date of each Equipment Advance at the
rate in Section 2.2(a) and is payable monthly on the Payment Date of each month.
Any Equipment Advances that are outstanding on the Equipment Availability End
Date shall be payable in forty-two (42) equal monthly installments of principal,
plus all accrued interest, beginning on the date of the Equipment Advance and
ending on the Equipment Maturity Date. Equipment Advances once repaid may not be
reborrowed.
(c) To obtain an Equipment Advance, Borrower must notify Bank by
facsimile or telephone by 3:00 p.m. Pacific time two Business Days prior to the
date the Equipment Advance is to be made. Borrower must promptly confirm the
notification by delivering to Bank the Payment/Advance Form attached as Exhibit
B which must be signed by a Responsible Officer and include a copy of the
invoice for the Equipment being financed. Bank shall credit Equipment Advances
to Borrower's deposit account. Borrower can transfer the Equipment Advances from
Borrower's account on the date the Bank makes the Equipment Advances, if the
transfer is within regular business hours of the Bank. Bank may make Equipment
Advances under this Agreement based on instructions from a Responsible Officer
or his or her designee. Bank may rely on any telephone notice given by a person
whom Bank believes is a Responsible Officer or designee. Borrower shall
indemnify Bank for any loss Bank suffers due to Bank's reliance.
2.2 INTEREST RATE: PAYMENTS.
(a) Interest Rate. Equipment Advances accrue interest on the
outstanding principal balance at a per annum rate equal to the Prime Rate. After
an Event of Default, Obligations accrue interest at a rate 5 percent above the
rate effective immediately before the Event of Default. Interest is computed on
a 360-day year for the actual number of days elapsed.
(b) Payments. Interest is due and payable on each Payment Date.
Borrower hereby authorizes Bank to debit any of Borrower's deposit accounts for
principal and interest payments or any amounts Borrower owes Bank. Bank will
notify Borrower when it debits Borrower's accounts. These debits are not a
set-off. Payments received after 12:00 noon PM Pacific time are considered
received at the opening of business on the next Business Day. When a payment is
due on a day that is not a Business Day, the payment is due the next Business
Day and additional fees or interest accrue.
2.3 FEES. Borrower will pay to Bank:
Bank Expenses. All Bank Expenses (including reasonable attorneys' fees
and expenses) incurred through the date of this Agreement shall be paid upon
execution of this Agreement, which the Bank agrees will not be in excess of FIVE
THOUSAND DOLLARS ($5,000.00).
3 CONDITIONS OF LOANS
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3.1 CONDITIONS PRECEDENT TO INITIAL EQUIPMENT ADVANCE. Bank's obligation to make
the initial Equipment Advance is subject to the conditions precedent that the
Borrower executes, and the Bank receives (i) a fully executed copy of this
Agreement; (ii) certificate of the Secretary of Borrower with respect to
articles, bylaws, incumbency and resolutions authorizing the execution and
delivery of this Agreement; (iii) financing statements (Forms UCC-1); (iv)
insurance certificate; (v) payment of Bank Expenses then due specified in
Section 2.4 hereof; (vi) Certificates of Good Standing and Foreign
Qualifications; (vii) written certification from a Responsible Officer, in a
form and with supporting documents satisfactory to Bank, that Borrower has
sufficient cash to fund twenty-four (24) months of projected operating losses
and debt service; and (viii) such other documents, and completion of such other
matters, as Bank may reasonably deem necessary or appropriate.
3.2 CONDITIONS PRECEDENT TO ALL EQUIPMENT ADVANCES. Bank's obligations to make
each Equipment Advance, including the initial Equipment Advance, is subject to
the following:
(a) timely receipt of any Payment/Advance Form; and
(b) the representations and warranties in Section 5 must be materially
true on the date of the Payment/Advance Form and on the effective date of each
Equipment Advance and no Event of Default may have occurred and be continuing,
or result from the Equipment Advance. Each Equipment Advance is Borrower's
representation and warranty on that date that the representations and warranties
in Section 5 remain true.
4 CREATION OF SECURITY INTEREST
4.1 GRANT OF SECURITY INTEREST. Borrower grants Bank a continuing security
interest in all presently existing and later acquired Collateral, and the
proceeds of all Collateral, to secure all Obligations and performance of each of
Borrower's duties under the Loan Documents. Except for Permitted Liens, any
security interest will be a first priority security interest in the Collateral.
If the Agreement is terminated, Bank's lien and security interest in the
Collateral will continue until Borrower fully satisfies its Obligations. When
Borrower repays in full all Obligations arising under and related to the Loan
and Security Agreement dated March 31, 1999 between Borrower and Bank (the
"March 31, 1999 Agreement"), Bank shall release its security interest in all
Equipment purchased with the proceeds of the March 31, 1999 Agreement.
5 REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
5.1 DUE ORGANIZATION AND AUTHORIZATION. Borrower is duly existing under the laws
of the state of Delaware and qualified and licensed to do business in, and in
good standing in, any state in which the conduct of its business or its
ownership of property requires that it be qualified.
The execution, delivery and performance of the Loan Documents have been
duly authorized, and do not conflict with any of Borrower's formation documents,
nor constitute an event of default under any material agreement by which
Borrower is bound. Borrower is not in
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default under any agreement to which or by which it is bound in which the
default could cause a Material Adverse Change.
5.2 COLLATERAL. Borrower has good title to the Collateral, free of Liens except
Permitted Liens. All Inventory is in all material respects of good and
marketable quality, free from material defects.
5.3 LITIGATION. Except as identified in Schedule 1, there are no actions or
proceedings pending or, to Borrower's knowledge, threatened by or against
Borrower in which an adverse decision could cause a Material Adverse Change.
5.4 NO MATERIAL ADVERSE CHANGE IN FINANCIAL STATEMENTS. All consolidated
financial statements for Borrower delivered to Bank fairly present in all
material respects Borrower's consolidated financial condition and Borrower's
consolidated results of operations. There has not been any material
deterioration in Borrower's consolidated financial condition since the date of
the most recent financial statements submitted to Bank.
5.5 SOLVENCY. The fair salable value of Borrower's assets (including goodwill
minus disposition costs) exceeds the fair value of its liabilities; the Borrower
is not left with unreasonably small capital after the transactions in this
Agreement; and Borrower is able to pay its debts (including trade debts) as they
mature.
5.6 REGULATORY COMPLIANCE. Borrower is not a registered investment company, or
required to register as an investment company or a company controlled by a
registered investment company under the Investment Company Act. Borrower is not
engaged as one of its important activities in extending credit for margin stock
(under Regulations T and U of the Federal Reserve Board of Governors). Borrower
has complied with the Federal Fair Labor Standards Act. Borrower has not
violated any laws, ordinances or rules, the violation of which could cause a
Material Adverse Change. None of Borrower's properties or assets has been used
by Borrower or, to the best of Borrower's knowledge, by previous Persons, in
disposing, producing, storing, treating, or transporting any hazardous
substance. Borrower has timely filed all required tax returns and paid, or made
adequate provision to pay, all taxes. Borrower has obtained all consents,
approvals and authorizations of, made all declarations or filings with, and
given all notices to, all government authorities that are necessary to continue
its business as currently conducted.
5.7 SUBSIDIARIES. Borrower does not own any stock, partnership interest or other
equity securities except for Permitted Investments.
5.8 FULL DISCLOSURE. No representation, warranty or other statement of Borrower
in any certificate or written statement given to Bank contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements contained in the certificates or statements not misleading.
6 AFFIRMATIVE COVENANTS
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Borrower will do all of the following:
6.1 GOVERNMENT COMPLIANCE. Borrower shall maintain its legal existence in the
state of Delaware and maintain qualification in each jurisdiction in which the
failure to so qualify could have a material adverse effect on Borrower's
business or operations. Borrower shall comply with all laws, ordinances and
regulations to which it is subject, noncompliance with which could have a
material adverse effect on Borrower's business or operations or cause a Material
Adverse Change.
6.2 FINANCIAL STATEMENTS, REPORTS, CERTIFICATES.
(a) Borrower shall deliver to Bank: (i) as soon as available, but no
later than 30 days after the last day of each month, a company prepared
consolidated balance sheet and income statement covering Borrower's consolidated
operations during the period, in a form reasonably acceptable to Bank and
certified by a Responsible Officer; (ii) as soon as available, but in any event
within thirty (30) days after the last day of each month, a Compliance
Certificate signed by a responsible officer in substantially the form of Exhibit
C hereto; (iii) as soon as available, but no later than 120 days after the last
day of Borrower's fiscal year, audited consolidated financial statements
prepared under GAAP, consistently applied, together with an unqualified opinion
on the financial statements from an independent certified public accounting firm
reasonably acceptable to Bank; (iv) within 5 days of filing, copies of all
statements, reports and notices that may alert Bank to a Default or Event of
Default; (v) a prompt report of any legal actions pending or threatened against
Borrower or any Subsidiary that could result in damages or costs to Borrower or
any Subsidiary of $250,000 or more; and (vi) budgets, sales projections,
operating plans or other financial information Bank reasonably requests.
(b) Bank has the right to audit the Collateral and to require
certification of the existence of the Collateral at Bank's expense, provided
that if Borrower is in default or has not cured any breach, the audit expenses
shall be paid by the Borrower.
6.3 INVENTORY; RETURNS. Borrower will keep all Inventory in good and marketable
condition, free from material defects. Returns and allowances between Borrower
and its account debtors will follow Borrower's practices as they exist at
execution of the Agreement. Borrower must promptly notify Bank of all returns,
recoveries, disputes and claims that involve more than $50,000.
6.4 TAXES. Borrower shall make timely payment of all material federal, state,
and local taxes or assessments and will deliver to Bank, on demand, appropriate
certificates attesting to the payment.
6.5 INSURANCE. Borrower will keep its business and the Collateral insured for
risks and in amounts, as is typical in Borrower's business. Insurance policies
will be in a form, with companies, and in amounts that are satisfactory to Bank
in Bank's reasonable discretion. All property policies will have a lender's loss
payable endorsement showing Bank as an additional loss payee and all liability
policies will show the Bank as an additional insured and provide that the
insurer must give Bank at least 20 days notice before canceling its policy. At
Bank's request,
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Borrower will deliver certified copies of policies and evidence of all premium
payments. So long as no Event of Default has occurred and is continuing,
Borrower shall have the option of applying the proceeds of any casualty policy
to the replacement or repair of destroyed or damaged property; provided that,
after the occurrence and during the continuance of an Event of Default, all
proceeds payable under any such casualty policy shall, at the option of Bank, be
payable to Bank on account of the Obligations.
6.6 BANK ACCOUNTS. Borrower shall maintain its principal depository and
operating accounts with Bank (the "SVB Accounts"). Borrower shall maintain not
less than Ten Million Dollars ($10,000,000) of cash and investment balances with
Bank, unless Borrower's total cash and investment balances, wherever located,
are less than Ten Million Dollars ($10,000,000), in which case 100% of such
balances shall be maintained with Bank.
6.8 TANGIBLE NET WORTH. Borrower shall maintain, as of the last day of each
calendar month, a Tangible Net Worth of not less than Nine Million Dollars
($9,000,000).
6.9 FURTHER ASSURANCES. Borrower shall execute any further instruments and take
further action as Bank requests to perfect or continue Bank's security interest
in the Collateral or to effect the purposes of this Agreement.
6.10 REGISTRATION OF INTELLECTUAL PROPERTY RIGHTS. Borrower will (i) protect,
defend and maintain the validity and enforceability of the Intellectual Property
and promptly advise Bank in writing of material infringements and (ii) not allow
any Intellectual Property to be abandoned, forfeited or dedicated to the public
without Bank's written consent provided that such abandonment, forfeiture, or
dedication to the public will not require Bank's written consent if in the good
faith judgment of the Board as to not materially effect the value of the
Borrower.
7 NEGATIVE COVENANTS
Borrower shall not do any of the following:
7.1 DISPOSITIONS. Without Bank's prior written consent, which consent may not be
unreasonably withheld, convey, sell, lease, transfer or otherwise dispose of
(collectively "Transfer") all or any part of its business or property, other
than Transfers (i) of Inventory in the ordinary course of business, which the
parties agree would include negotiating and entering into a collaboration,
co-marketing, co-development, co-promotion or other partnership arrangement;
(ii) of non-exclusive licenses and similar arrangements for the use of the
property of Borrower or its Subsidiaries in the ordinary course of business; or
(iii) of worn-out or obsolete Equipment.
7.2 CHANGES IN BUSINESS, OWNERSHIP, MANAGEMENT OR BUSINESS LOCATIONS. Engage in
any business other than the businesses currently engaged in by Borrower or have
a change in its majority ownership or Critical Management as listed in Schedule
of Critical Management (other than a change in the Board of Directors, material
voting control in the Company or the sale of Borrower's equity securities in a
public offering or to venture capital investors approved by Bank). Borrower will
not, without at least 30 days prior written notice to Bank, relocate its
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principal executive office, add any new offices or business locations, or change
its state of incorporation.
7.3 NEGATIVE PLEDGE. Except as set forth in Section 7.1, sell, transfer, assign,
mortgage, pledge, lease, grant a security interest in, release, disburse, or
encumber any of Borrower's property, except to Bank and except for Permitted
Liens, including but not limited to any securities, securities entitlements,
securities accounts, investment property, financial assets, instruments, chattel
paper, contract rights, Inventory, Equipment, accounts receivable, licenses,
Intellectual Property, including proceeds, distributions from sale, exchange or
liquidation of same, now owned or hereafter acquired, except for such sales,
transfers, and pledges made by Borrower in the ordinary course of Borrower's
business with Bank's prior written consent. Notwithstanding the foregoing,
Borrower may, in the ordinary course of Borrower's business, license its
Intellectual Property on a non-exclusive basis. Borrower may also, in the
ordinary course of Borrower's business, and as the Board of Directors deems, in
good faith, appropriate for the development of Borrower's business or the sale
or distribution of its products and services, license its Intellectual Property
on an exclusive basis.
7.4 MERGERS OR ACQUISITIONS. Merge or consolidate, or permit any of its
Subsidiaries to merge or consolidate, with any other Person, or acquire, or
permit any of its Subsidiaries to acquire, all or substantially all of the
capital stock or property of another Person. A Subsidiary may merge or
consolidate into another Subsidiary or into Borrower.
7.5 INDEBTEDNESS. Create, incur, assume, or be liable for any Indebtedness,
other than Permitted Indebtedness.
7.6 ENCUMBRANCE. Create, incur, or allow any Lien on any of its property, or
assign or convey any right to receive income, except for Permitted Liens.
7.7 INVESTMENTS, DISTRIBUTIONS. Directly or indirectly acquire or own any
Person, or make any Investment, other than Permitted Investments, or permit any
of its Subsidiaries to do so.
7.8 TRANSACTIONS WITH AFFILIATES. Directly or indirectly enter or permit any
material transaction with any Affiliate, except transactions that are in the
ordinary course of Borrower's business, on terms less favorable to Borrower than
would be obtained in an arm's length transaction with a non-affiliated Person.
7.9 SUBORDINATED DEBT. Make or permit any payment on any Subordinated Debt,
except under the terms of the Subordinated Debt, or amend any provision in any
document relating to the Subordinated Debt, without Bank's prior written
consent.
7.10 COMPLIANCE. Become a registered investment company or be required to
register as an investment company or a company controlled by a registered
investment company under the Investment Company Act of 1940, or undertake as one
of its important activities extending credit to purchase or carry margin stock,
or use the proceeds of any Advance for that purpose; fail to meet the minimum
funding requirements of ERISA, permit a Reportable Event or Prohibited
Transaction, as defined in ERISA, to occur if the violation would cause a
Material Adverse
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Change; fail to comply with the Federal Fair Labor Standards Act or violate any
other law or regulation, if the violation could have a material adverse effect
on Borrower's business or operations or cause a Material Adverse Change.
8 EVENTS OF DEFAULT
Any one of the following is an Event of Default:
8.1 PAYMENT DEFAULT. Borrower fails to pay any of the Obligations within 3 days
after their due date. During the additional period the failure to cure the
default is not an Event of Default, but no Equipment Advances shall be made
during the cure period;
8.2 COVENANT DEFAULT. Borrower does not perform any obligation in Article 6 or
violates any covenant in Article 7 or does not perform or observe any other
material term, condition or covenant in this Agreement, any Loan Documents, or
in any agreement between Borrower and Bank and as to any default under a term,
condition or covenant that can be cured, has not cured the default within 10
days after it occurs, or if the default cannot be cured within 10 days or cannot
be cured after Borrower's attempts in the 10 day period, and the default may be
cured within a reasonable time, then Borrower has an additional time (of not
more than 30 days) to attempt to cure the default. During the additional period
the failure to cure the default is not an Event of Default, but no Equipment
Advances shall be made during the cure period;
8.3 CROSS DEFAULT. Borrower defaults, or there occurs a Default or Event of
Default under that certain Loan and Security Agreement between Borrower and
Bank, dated as of March 31, 1999;
8.4 MATERIAL ADVERSE CHANGE. If there occurs a material adverse change in the
business, operations or condition (financial or otherwise) of the Borrower that
results in a material impairment of the prospect of repayment of any portion of
the Obligations or a material impairment of the value or priority of Bank's
security interest in a material portion of the Collateral;
8.5 ATTACHMENT. (i) Any material portion of Borrower's assets is attached,
seized, levied on, or comes into possession of a trustee or receiver and the
attachment, seizure or levy is not removed in 10 days; (ii) Borrower is
enjoined, restrained, or prevented by court order from conducting a material
part of its business; (iii) a judgment or other claim becomes a Lien on a
material portion of Borrower's assets; or (iv) a notice of lien, levy, or
assessment is filed against any of Borrower's assets by any government agency
and not paid within 10 days after Borrower receives notice. These are not Events
of Default if stayed or if a bond is posted pending contest by Borrower, but no
Equipment Advances shall be made during the cure period;
8.6 INSOLVENCY. (i) Borrower becomes insolvent; (ii) Borrower begins an
Insolvency Proceeding; or (iii) an Insolvency Proceeding is begun against
Borrower and not dismissed or stayed within 30 days, but no Equipment Advances
shall be made before any Insolvency Proceeding is dismissed;
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8.7 OTHER AGREEMENTS. There exists a default in any agreement between Borrower
and a third party that gives the third party the right to accelerate any
Indebtedness exceeding $100,000.00 or that could cause a Material Adverse
Change;
8.8 JUDGMENTS. A money judgment or judgments in the aggregate that is not
insured of at least $50,000.00 are rendered against Borrower and are unsatisfied
and unstayed for 30 days, but no Equipment Advances shall be made before the
judgment is stayed or satisfied.
8.9 MISREPRESENTATIONS. Borrower or any Person acting for Borrower makes any
material misrepresentation or material misstatement now or later in any warranty
or representation in this Agreement or in any communication delivered to Bank or
to induce Bank to enter this Agreement or any Loan Document.
9 BANK'S RIGHTS AND REMEDIES
9.1 RIGHTS AND REMEDIES. When an Event of Default occurs and continues Bank may,
without notice or demand, do any or all of the following:
(a) Declare all Obligations immediately due and payable (but if an
Event of Default described in Section 8.5 occurs all Obligations are immediately
due and payable without any action by Bank);
(b) Stop advancing money or extending credit for Borrower's benefit
under this Agreement or under any other agreement between Borrower and Bank;
(c) Settle or adjust disputes and claims directly with account debtors
for amounts, on terms and in any order that Bank considers advisable;
(d) Make any payments and do any acts it considers necessary or
reasonable to protect its security interest in the Collateral. Borrower will
assemble the Collateral if Bank requests and make it available as Bank
designates. Bank may enter premises where the Collateral is located, take and
maintain possession of any part of the Collateral, and pay, purchase, contest,
or compromise any Lien which appears to be prior or superior to its security
interest and pay all reasonable expenses incurred. Borrower grants Bank a
license to enter and occupy any of its premises, without charge, to exercise any
of Bank's rights or remedies;
(e) Apply to the Obligations any (i) balances and deposits of Borrower
it holds, or (ii) any amount held by Bank owing to or for the credit or the
account of Borrower;
(f) Ship, reclaim, recover, store, finish, maintain, repair, prepare
for sale, advertise for sale, and sell the Collateral; and
(g) Exercise all rights and remedies accorded to the Bank under the
Uniform Commercial Code.
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9.2 POWER OF ATTORNEY. When an Event of Default occurs and continues, Borrower
irrevocably appoints Bank as its lawful attorney to: (i) endorse Borrower's name
on any checks or other forms of payment or security; (ii) sign Borrower's name
on any invoice or xxxx of lading for any Eligible Equipment, (iii) make, settle,
and adjust all claims under Borrower's insurance policies; (iv) settle and
adjust disputes and claims about the Eligible Equipment on terms Bank determines
reasonable; and (v) transfer the Collateral into the name of Bank or a third
party as permitted under the Uniform Commercial Code. Bank may exercise the
power of attorney to sign Borrower's name on any documents necessary to perfect
or continue the perfection of any security interest regardless of whether an
Event of Default has occurred. Bank's appointment as Borrower's attorney in
fact, and all of Bank's rights and powers, coupled with an interest, are
irrevocable until all Obligations have been fully repaid and performed and
Bank's obligation to provide Equipment Advances terminates.
9.3 BANK EXPENSES. If Borrower fails to pay any amount or furnish any required
proof of payment to third persons, Bank may make all or part of the payment or
obtain insurance policies required in Section 6.5, and take any action under the
policies Bank deems prudent. Any amounts paid by Bank are Bank Expenses and
immediately due and payable, bearing interest at the then applicable rate and
secured by the Collateral. No payments by Bank are deemed an agreement to make
similar payments in the future or Bank's waiver of any Event of Default.
9.4 BANK'S LIABILITY FOR COLLATERAL. If Bank complies with reasonable banking
practices and the Uniform Commercial Code, Bank shall have no liability or
responsibility for: (a) the safekeeping of the Collateral; (b) any loss or
damage to the Collateral; (c) any diminution in the value of the Collateral; or
(d) any act or default of any carrier, warehouseman, bailee, or other person.
Borrower bears all risk of loss, damage or destruction of the Collateral.
9.5 REMEDIES CUMULATIVE. Bank's rights and remedies under this Agreement, the
Loan Documents, and all other agreements are cumulative. Bank has all rights and
remedies provided under the Uniform Commercial Code, by law, or in equity.
Bank's exercise of one right or remedy is not an election, and Bank's waiver of
any Event of Default is not a continuing waiver. Bank's delay is not a waiver,
election, or acquiescence. No waiver is effective unless signed by Bank and then
is only effective for the specific instance and purpose for which it was given.
9.6 DEMAND WAIVER. Borrower waives demand, notice of default or dishonor, notice
of payment and nonpayment, notice of any default, nonpayment at maturity,
release, compromise, settlement, extension, or renewal of accounts, documents,
instruments, chattel paper, and guarantees held by Bank on which Borrower is
liable.
10 NOTICES
All notices or demands by any party to this Agreement or any other
related agreement must be in writing and be personally delivered or sent by an
overnight delivery service, by certified mail, postage prepaid, return receipt
requested, or by telefacsimile at the addresses listed at the beginning of this
Agreement. A Party may change its notice address by giving the other Party
written notice.
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11 CHOICE OF LAW AND VENUE
Delaware law governs the Loan Documents without regard to principles of
conflicts of law. Borrower and Bank each submit to the exclusive jurisdiction of
the State and Federal courts in the state of Delaware.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY
CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER
CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS
AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
12 GENERAL PROVISIONS
12.1 SUCCESSORS AND ASSIGNS. This Agreement binds and is for the benefit of the
successors and permitted assigns of each party. Borrower may not assign this
Agreement or any rights or Obligations under it without Bank's prior written
consent which may be granted or withheld in Bank's discretion. Bank has the
right, upon 30 (thirty) days written notice to Borrower, to sell, transfer,
negotiate, or grant participation in all or any part of, or any interest in,
Bank's obligations, rights and benefits under this Agreement, the Loan Documents
or any related agreement.
12.2 INDEMNIFICATION. Borrower shall indemnify, defend and hold harmless Bank
and its officers, employees and agents against: (a) all obligations, demands,
claims, and liabilities asserted by any other party in connection with the
transactions contemplated by the Loan Documents; and (b) all losses or Bank
Expenses incurred, or paid by Bank from, following, or consequential to
transactions between Bank and Borrower (including reasonable attorneys' fees and
expenses), except for losses caused by Bank's negligence, willful misconduct or
breach of this Agreement.
12.3 TIME OF ESSENCE. Time is of the essence for the performance of all
Obligations in this Agreement.
12.4 SEVERABILITY OF PROVISION. Each provision of this Agreement is severable
from every other provision in determining the enforceability of any provision.
12.5 AMENDMENTS IN WRITING, INTEGRATION. All amendments to this Agreement must
be in writing signed by both Bank and Borrower. This Agreement and the Loan
Documents represent the entire agreement about this subject matter, and
supersedes prior or contemporaneous negotiations or agreements. All prior or
contemporaneous agreements, understandings, representations, warranties, and
negotiations between the parties about the subject matter of this Agreement and
the Loan Documents merge into this Agreement and the Loan Documents.
11
12.6 COUNTERPARTS. This Agreement may be executed in any number of counterparts
and by different parties on separate counterparts, each of which, when executed
and delivered, are an original, and all taken together, are one Agreement.
12.7 SURVIVAL. All covenants, representations and warranties made in this
Agreement continue in full force while any Obligations remain outstanding. The
obligations of Borrower in Section 12.2 to indemnify Bank will survive until all
statutes of limitations for actions that may be brought against Bank have run.
12.8 CONFIDENTIALITY. In handling any confidential information, Bank will
exercise the same degree of care that it exercises for its own proprietary
information, but disclosure of information may be made: (i) to Bank's
subsidiaries or affiliates in connection with their present or prospective
business relations with Borrower; (ii) to prospective transferees or purchasers
of any interest in the Loans; (iii) as required by law, regulation, subpoena, or
other order, (iv) as required in connection with Bank's examination or audit;
and (v) as Bank considers appropriate in exercising remedies under this
Agreement. Confidential information does not include information that either:
(a) is in the public domain or in Bank's possession when disclosed to Bank, or
becomes part of the public domain after disclosure to Bank; or (b) is disclosed
to Bank by a third party, if Bank does not know that the third party is
prohibited from disclosing the information.
12.9 EARLY REPAYMENT. Borrower will not be assessed any penalty by Bank for
early repayment of any of the Obligations.
12.10 ATTORNEYS' FEES, COSTS AND EXPENSES. In any action or proceeding arising
out of or related to Bank's efforts to collect the Obligations, except in the
Loan and Security Agreement dated March 31, 1999, Bank will be entitled to
recover its reasonable attorneys' fees and other costs and expenses incurred, in
addition to any other relief to which it may be entitled.
13 DEFINITIONS
13.1 DEFINITIONS.
"AFFILIATE" of a Person is a Person that owns or controls directly or
indirectly the Person, any Person that controls or is controlled by or is under
common control with the Person, and each of that Person's senior executive
officers, directors, partners and, for any Person that is a limited liability
company, that Person's managers and members.
"AGREEMENT" means this Loan and Security Agreement.
"BANK EXPENSES" are all collateral audit fees and expenses and
reasonable costs or expenses (including reasonable attorneys' fees and expenses)
for preparing, negotiating, administering, defending and enforcing the Loan
Documents (including appeals or Insolvency Proceedings).
"BOARD" is the Board of Directors of Borrower.
12
"BORROWER" is Esperion Therapeutics, Inc., a Delaware corporation.
"BORROWER'S BOOKS" are all Borrower's books and records including
ledgers, records regarding Borrower's assets or liabilities, the Collateral,
business operations or financial condition and all computer programs or discs or
any equipment containing the information.
"BUSINESS DAY" is any day that is not a Saturday, Sunday or a day on
which the Bank is closed.
"CLOSING DATE" means the date of this Agreement.
"COLLATERAL" is the property described on Exhibit A.
"COMMITTED EQUIPMENT LINE" is a credit extension of up to $2,000,000
(Two Million Dollars).
"CONTINGENT OBLIGATION" is, for any Person, any direct or indirect
liability, contingent or not, of that Person for (i) any indebtedness, lease,
dividend, letter of credit or other obligation of another such as an obligation
directly or indirectly guaranteed, endorsed, co-made, discounted or sold with
recourse by that Person, or for which that Person is directly or indirectly
liable; (ii) any obligations for undrawn letters of credit for the account of
that Person; and (iii) all obligations from any interest rate, currency or
commodity swap agreement, interest rate cap or collar agreement, or other
agreement or arrangement designated to protect a Person against fluctuation in
interest rates, currency exchange rates or commodity prices; but "Contingent
Obligation" does not include endorsements in the ordinary course of business.
The amount of a Contingent Obligation is the stated or determined amount of the
primary obligation for which the Contingent Obligation is made or, if not
determinable, the maximum reasonably anticipated liability for it determined by
the Person in good faith; but the amount may not exceed the maximum of the
obligations under the guarantee or other support arrangement.
"ELIGIBLE EQUIPMENT" is all present and future machinery, equipment,
furniture, tools, in which Bank has a valid security interest, including new
equipment, computer equipment, office equipment, lab equipment, and test
equipment provided that no more than 20% of each Equipment Advance may include
soft costs, including, but not limited to, taxes, shipping installation
expenses, transferable software licenses, and leasehold improvements.
"EQUIPMENT ADVANCE" or "EQUIPMENT ADVANCES" is a loan advance (or
advances) under the Committed Equipment Line.
"EQUIPMENT AVAILABILITY END DATE" is twelve (12) months from the
Closing Date.
"EQUIPMENT MATURITY DATE" is the date which is forty-one (41) months
from the date of the Equipment Advance.
13
"ERISA" is the Employment Retirement Income Security Act of 1974, and
its regulations.
"GAAP" is generally accepted accounting principles.
"INDEBTEDNESS" is (a) indebtedness for borrowed money or the deferred
price of property or services, such as reimbursement and other obligations for
surety bonds and letters of credit, (b) obligations evidenced by notes, bonds,
debentures or similar instruments, (c) capital lease obligations and (d)
Contingent Obligations.
"INSOLVENCY PROCEEDING" is any proceeding by or against any Person
under the United States Bankruptcy Code, or any other bankruptcy or insolvency
law, including assignments for the benefit of creditors, compositions,
extensions generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.
"INTELLECTUAL PROPERTY" is Borrower's right, title and interest in any
copyrights, copyright applications, copyright registration and like protection
in each work of authorship and derivative work thereof, whether published or
unpublished, now owned or hereafter acquired; any patents, patent applications
and like protections including without limitation improvements, divisions,
continuations, renewals, reissues, extensions and continuations-in-part of the
same, trademarks; servicemarks and applications therefor, whether registered or
not, and the goodwill of the business of Borrower connected with and symbolized
by such trademarks, any trade secret rights, including any rights to unpatented
inventions, know-how, operating manuals, license rights and agreements and
confidential information, now owned or hereafter acquired; or any claims for
damage by way of any past, present and future infringement of any of the
foregoing.
"INVENTORY" is present and future inventory in which Borrower has any
interest, including merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products intended for sale or
lease or to be furnished under a contract of service, of every kind and
description now or later owned by or in the custody or possession, actual or
constructive, of Borrower, including inventory temporarily out of its custody or
possession or in transit and including returns on any accounts or other proceeds
(including insurance proceeds) from the sale or disposition of any of the
foregoing and any documents of title.
"INVESTMENT" is any beneficial ownership of (including stock,
partnership interest or other securities) any Person, or any loan, advance or
capital contribution to any Person.
"LIEN" is a mortgage, lien, deed of trust, charge, pledge, security
interest or other encumbrance.
"LOAN DOCUMENTS" are, collectively, this Agreement, any note, or notes
executed by Borrower, and any other present or future agreement between Borrower
and/or for the benefit of Bank in connection with this Agreement, all as
amended, extended or restated. Notwithstanding the foregoing, when the
obligation evidenced by the Loan and Security Agreement dated March 31, 1999 is
repaid in full, this definition shall exclude the Loan and Security Agreement
evidenced in this Obligation, and related collateral.
14
"MATERIAL ADVERSE CHANGE" is defined in Section 8.3.
"OBLIGATIONS" are debts, principal, interest, Bank Expenses and other
amounts Borrower owes Bank now or later, including all obligations under that
certain Loan and Security Agreement between Borrower and Bank dated as of March
31, 1999, letters of credit and foreign exchange contracts, if any, and
including interest accruing after Insolvency Proceedings begin and debts,
liabilities, or obligations of Borrower assigned to Bank.
"PAYMENT DATE" is the first calendar day of each month commencing on
the first such date after the Closing Date.
"PERMITTED INDEBTEDNESS" is:
(a) Borrower's Indebtedness to Bank under this Agreement or the Loan
Documents;
(b) Indebtedness existing on the Closing Date and shown on the
Schedule;
(c) Subordinated Debt;
(d) Indebtedness to trade creditors incurred in the ordinary course of
business; and
(e) Indebtedness secured by Permitted Liens.
"PERMITTED INVESTMENTS" are:
(a) Investments shown on the most recent financial statements included
as an Exhibit herein; and
(b) Investments approved by Borrower's Board of Directors.
"PERMITTED LIENS" are:
(a) Liens existing on the Closing Date and shown on the Schedule or
arising under this Agreement or other Loan Documents;
(b) Liens for taxes, fees, assessments or other government charges or
levies, either not delinquent or being contested in good faith and for which
Borrower maintains adequate reserves on its Books, if they have no priority over
any of Bank's security interests;
(c) Purchase money Liens (i) on Equipment acquired or held by Borrower
or its Subsidiaries to secure the purchase price of such Equipment or
indebtedness incurred solely for the purpose of financing the acquisition of
such Equipment, or (ii) existing on equipment when acquired, if the Lien is
confined to the property and improvements and the proceeds of the equipment;
15
(d) Leases or subleases and licenses or sublicenses granted in the
ordinary course of Borrower's business, if the leases, subleases, licenses and
sublicenses permit granting Bank a security interest; and
(e) Liens incurred in the extension, renewal or refinancing of the
indebtedness secured by Liens described in (a) through (c), but any extension,
renewal or replacement Lien must be limited to the property encumbered by the
existing Lien and the principal amount of the indebtedness may not increase; nor
shall the terms of such indebtedness be materially more onerous as a result of
such extension, renewal, or replacement.
(f) Statutory inchoate liens in connection with workmen's compensation,
unemployment insurance or other social security obligations;
(g) Mechanic's, xxxxxxx'x, materialman's, landlords, carriers,
warehouseman's, laborers or other similar liens arising in the ordinary course
of business with respect to obligations that are not due;
(h) Judgments that are not an Event of Default under Section 8
hereunder; and
(i) Collaboration, co-marketing, co-development, co-promotion or other
partnership agreements.
"PERSON" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint
stock company, estate, entity or government agency.
"PRIME RATE" is the variable rate of interest, per annum, most recently
announced by Bank, as its "prime rate," whether or not such announced rate is
the lowest rate available from Bank.
"RESPONSIBLE OFFICER" is an officer of Borrower authorized under the
Articles of Incorporation to request an Advance.
"SCHEDULE" is any attached schedule of exceptions.
"SUBORDINATED DEBT" is debt incurred by Borrower subordinated to
Borrower's debt to Bank (and identified as subordinated by Borrower and Bank).
"SUBSIDIARY" is for any Person, or any other business entity of which
more than 50% of the voting stock or other equipment interests is owned or
controlled, directly or indirectly, by the Person or one or more Affiliates of
the Person, and in the case of Borrower includes Esperion LUV Development, Inc.,
a Delaware corporation, and Esperion AB, a Swedish corporation.
"SVB ACCOUNT" is the operating account maintained by Borrower with
Bank.
16
"TANGIBLE NET WORTH" means as of any applicable date, the consolidated
total assets of Borrower and its subsidiaries minus, without duplication, (i)
the sum of any amounts attributable to (a) goodwill, (b) intangible items such
as unamortized debt discount and expense, patents, trade and service marks and
names, copyrights and research and development expenses except prepaid expenses,
and (c) all reserves not already deducted from assets, and (ii) Total
Liabilities.
The parties have executed this Loan and Security Agreement as of the date first
written above.
ESPERION THERAPEUTICS, INC.
By: /s/ Xxx Xxxxxxxx
-----------------------------------------
Name: Xxx Xxxxxxxx
---------------------------------------
Title: VP & CFO
--------------------------------------
SILICON VALLEY BANK
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
---------------------------------------
Title: SVP
--------------------------------------
17
SCHEDULE OF PENDING LITIGATION
None as of the Closing Date
SCHEDULE OF CRITICAL MANAGEMENT
Xxxxx Xxxxxx, CEO
SCHEDULE OF PERMITTED INDEBTEDNESS
SIDF
SVB
TransAmerica
SWM1st
SCHEDULE OF PERMITTED INVESTMENTS
See attached Borrower financial statement.
SCHEDULE OF PERMITTED LIENS
See attached UCC search results.
EXHIBIT A
The Collateral shall consist of all right, title and interest of Borrower in and
to the following:
(a) All goods and equipment and other fixed assets now owned or
hereafter acquired which are financed or refinanced by the Bank, including,
without limitation, all machinery, fixtures, vehicles (including motor vehicles
and trailers), and any interest in any of the foregoing, and all attachments,
accessories, accessions, replacements, substitutions, additions, and
improvements to any of the foregoing, wherever located; and
(b) Any and all claims, rights and interests in any of the above and
all substitutions for, additions and accessions to and proceeds thereof.
Upon payment in full of all Obligations arising under and related to the March
31, 1999 Agreement, Bank shall release its security interest in all Equipment
purchased with the proceeds of the March 31, 1999 Agreement and such Equipment
shall no longer constitute Collateral.
EXHIBIT B
PAYMENT/ADVANCE TELEPHONE REQUEST FORM
DEADLINE FOR SAME DAY PROCESSING IS 3:00 P.M., E.S.T.
TO: Xxxxxxx Xx, Seattle Credit Analyst DATE:
----------------------------
FAX#: 000-000-0000 TIME:
----------------------------
FROM: ESPERION THERAPEUTICS, INC.
-------------------------------------------------------------------------
CLIENT NAME (CUSTOMER)
REQUESTED BY:
-----------------------------------------------------------------
AUTHORIZED SIGNER'S NAME
AUTHORIZED SIGNATURE:
---------------------------------------------------------
PHONE NUMBER:
------------------------------------------------------------------
FROM ACCOUNT # TO ACCOUNT #
------------------------- -------------------------
REQUESTED TRANSACTION TYPE REQUESTED DOLLAR AMOUNT
-------------------------- -----------------------
PRINCIPAL INCREASE (ADVANCE) $
--------------------------------------
PRINCIPAL PAYMENT (ONLY) $
--------------------------------------
INTEREST PAYMENT (ONLY) $
--------------------------------------
PRINCIPAL AND INTEREST (PAYMENT) $
--------------------------------------
OTHER INSTRUCTIONS:
------------------------------------------------------------
--------------------------------------------------------------------------------
All Customer's representations and warranties stated in the Loan and Security
Agreement are true, correct and complete in all material respects on the date of
the telephone request for an Equipment Advance confirmed by this Advance
Request; but those representations and warranties expressly referring to another
date shall be true, correct and complete in all material respects as of that
date.
EXHIBIT C
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK, Chicago
Attn: Xxxxxx Xxxx
000 X Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Fax: 000-000-0000
FROM: ESPERION THERAPEUTICS, INC.
The undersigned authorized officer of ESPERION THERAPEUTICS, INC.
("Borrower') certifies that under the terms and conditions of the Loan and
Security Agreement between Borrower and Bank (the Agreement"), (i) Borrower is
in complete compliance for the period ending __________________ with all
required covenants except as noted below and (ii) all representations and
warranties of Borrower stated in the Agreement are true and correct in all
material respects on this date. Attached are the required documents supporting
the certification. The Officer certifies that these are prepared in accordance
with Generally Accepted Accounting Principles (GAAP) consistently applied from
one period to the next except as explained in an accompanying letter or
footnotes. The Officer acknowledges that no borrowings may be requested at any
time or date of determination that Borrower is not in compliance with any of the
terms of the Agreement, and that compliance is determined not just at the date
this certificate is delivered.
PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES"
COLUMN.
REPORTING COVENANT REQUIRED COMPLIES
Monthly financial statements + CC Monthly within 30 days Yes No
Annual (CPA Audited) + XX XXX within 120 days Yes No
FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES
FACILITY DATED MARCH 1999:
Maintain on a Monthly Basis:
Minimum Liquidity* 2.0:1.0 :1.0 Yes No
-----
Minimum Tangible Net Worth $3,000,000.00 $ Yes No
----------
FACILITY DATED OCTOBER 2001:
Maintain on a Monthly Basis:
Minimum Tangible Net Worth $9,000,000.00 $ Yes No
----------
* Liquidity defined as Cash plus Cash Equivalents (at Parent Company level only)
divided by SVB debt outstanding
COMMENTS REGARDING EXCEPTIONS: BANK USE ONLY
Sincerely, Received by:
-----------------------------
ESPERION THERAPEUTICS, INC. AUTHORIZED SIGNER
--------------------------------- Date:
SIGNATURE ------------------------------------
--------------------------------- Verified:
TITLE --------------------------------
AUTHORIZED SIGNER
---------------------------------
DATE Date:
------------------------------------
Compliance Status: Yes No
