Exhibit 4.3
LOAN AND SECURITY AGREEMENT
THIS AGREEMENT (the "Agreement"), dated as of September 25, 1998 (the
"Closing Date") is entered into by and between Cytokinetics, Incorporated, a
Delaware corporation having a principal place of business at 000 Xxxx Xxxxx
Xxxxxx, Xxxxx Xxx Xxxxxxxxx, XX 00000 (the "Borrower") and Comdisco, Inc., a
Delaware corporation having a principal place of business at 0000 Xxxxx Xxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (the "Lender"). In consideration of the mutual
agreements contained herein, the parties hereto agree as follows:
WHEREAS, Borrower has requested Lender to make available to Borrower a
loan in the aggregate principal amount of up to ONE MILLION FIVE HUNDRED
THOUSAND and 00/100 DOLLARS ($1,500,000.00) (as the same may from time to time
be amended, modified, supplemented or revised, the "Loan"), which shall be
available in minimum installments of TWO HUNDRED FIFTY THOUSAND and 00/100
DOLLARS ($250,000) each (the "Advance") on various dates prior to September 25,
1999 ("Advance Date(s)"), which would be evidenced by Secured Promissory Note(s)
executed by Borrower substantially in the form of EXHIBIT A hereto (as the same
may from time to time be amended, modified, supplemented or restated the
"Note(s)");
NOW, THEREFORE, it is agreed:
SECTION 1. THE LOAN
1.1 Subject to the terms and conditions set forth herein, Lender
shall lend to Borrower the aggregate original principal amount of ONE MILLION
FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($1,500,000) together with interest at
the rate of eight and one quarter percent (8.25%) per annum due and payable in
monthly installments as set forth in the Note
1.2 Upon the occurrence of and during an Event of Default (as
defined herein), interest shall thereafter be calculated at a rate of five
percent (5%) in excess of the rate that would otherwise be applicable ("Default
Rate"). All such interest shall be due and payable in arrears, on the first day
of the following month.
1.3 Notwithstanding any provision in this Agreement, the Note, or
any other "Loan Document" (as defined herein), it is not the parties' intent to
contract for, charge or receive interest at a rate that is greater than the
maximum rate permissible by law which a court of competent jurisdiction shall
deem applicable hereto (which under the laws of the State of Illinois shall be
deemed to be the laws relating to permissible rates of interest on commercial
loans) (the "Maximum Rate"). If the Borrower actually pays Lender an amount of
interest, chargeable on the total aggregate principal Secured Obligations of
Borrower under this Agreement and the Note (as said rate is calculated over a
period of time that is the longer of (i) the time from the date of this
Agreement through the maturity time as set forth on the Note, or (ii) the entire
period of time that any principal is outstanding on the Note), which amount of
interest exceeds interest calculated at the Maximum Rate on said principal
chargeable over said period of time, then such excess interest actually paid by
Borrower shall be applied first, to the payment of principal outstanding on the
Note; second, after all principal is repaid, to the payment of Lender's out of
pocket costs, expenses, and professional fees which are owed by Borrower to
Lender under this Agreement or the Loan Documents; and third, after all
principal, costs, expenses, and professional fees owed by Borrower to Lender are
repaid, the excess (if any) shall be refunded to Borrower.
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1.4 In the event any interest is not paid when due hereunder,
delinquent interest shall be added to principal and shall bear interest on
interest, compounded at the rate set forth in Section 1.1
1.5 Upon and during the continuation of an Event of Default
hereunder (as defined herein), all Secured Obligations, including principal,
interest, compounded interest, and reasonable professional fees, shall bear
interest at a rate per annum equal to the Default Rate.
1.6 Borrower shall have the option to prepay the Note, in whole or
in part, at any time after the date hereof by paying the principal amount
together with all accrued and unpaid interest with respect to such principal
amount, as of the date of such prepayment and the Balloon Payment as described
in the Note together with a prepayment premium equal to the difference, if any,
between (x) the amount being prepaid and (y) the present value, discounted at
the Treasury Rate, of each installment of principal and interest being prepaid
discounted to the date of prepayment. If the amount in (x) is greater than the
amount in (y), no prepayment premium shall be due. The "Treasury Rate" shall
mean the then prevailing yield on US Treasury Constant Maturities for the most
recent business day, as quoted in the Federal Reserve Statistical Release H15,
as of the date of prepayment for an obligation of comparable maturity to the
maturity date of the Note.
SECTION 2. SECURITY INTEREST
As security for the payment of all indebtedness ("Indebtedness") of the
Borrower to the Lender hereunder and under the Note, as the same may be renewed,
extended for any period or rearranged, and the performance by the Borrower of
its other obligations hereunder (the Indebtedness and such other obligations
being hereinafter sometimes collectively referred to as the "Secured
Obligations"), the Borrower hereby assigns to the Lender, and grants to the
Lender a first priority security interest in, all the Borrower's right, title,
and interest in and to the following property ("Collateral"): (i) the equipment
and other property (the "Equipment") described in Exhibit B attached hereto; and
(ii) all proceeds, products, replacements, additions to, substitutions for and
accessions to any and all Equipment including, without limitation, the proceeds
applicable to the insurance referred to in Section 4 hereof.
Equipment shall consist of computers, workstations, peripherals,
instrumentation, electronic test equipment, office furniture, certain types of
microscopy equipment and other items of equipment approved by Lender. Up to 20%
of the Loan may be used for software and tenant improvements.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF BORROWER
The Borrower represents, warrants and agrees that:
3.1 it has good title in and to the Equipment, free of all liens,
security interests, encumbrances and claims whatsoever, except for the interest
of the Lender therein;
3.2 it has the full power and authority to, and does hereby grant
and convey to the Lender, a valid first priority perfected security interest in
the Collateral as security for the Secured Obligations, free of all liens,
security interests, encumbrances and claims, and shall execute such
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Uniform Commercial Code ("UCC") financing statements in connection herewith as
the Lender may reasonably request. No other lien, security interest, adverse
claim or encumbrance has been created by Borrower or is known by Borrower to
exist with respect to any Collateral;
3.3 it is a corporation duly organized, legally existing and in
good standing under the laws of the State of Delaware, and is duly qualified as
a foreign corporation in all jurisdictions where the failure to so qualify would
have a material adverse effect on the Collateral or the business of the Borrower
taken as a whole;
3.4 the execution, delivery and performance of the Note, this
Agreement, the Warrant Agreement dated September 25, 1998 pursuant to which
Borrower granted to Lender the right to purchase the number of shares
of preferred stock as set forth therein ("Warrant Agreement"), and all financing
statements, certificates and other documents required to be delivered or
executed in connection herewith (collectively, the "Loan Documents") have been
duly authorized by all necessary corporate action of Borrower, the individual or
individuals executing the Loan Documents were duly authorized to do so, the
Equipment is personal property and as used by the Borrower will not be or become
fixtures under applicable law, and the Loan Documents constitute legal, valid
and binding obligations of the Borrower, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, reorganization
or other similar laws generally affecting the enforcement of the rights of
creditors;
3.5 the Loan Documents do not and will not violate any provisions
of its Certificate of Incorporation, bylaws or any contract, agreement, law,
regulation, order, injunction, judgment, decree or writ to which the Borrower is
subject, or result in the creation or imposition of any lien, security interest
or other encumbrance upon the Collateral, other than those created by this
Agreement;
3.6 the execution, delivery and performance of the Loan Documents
do not require the consent or approval of any other person or entity including,
without limitation, any regulatory authority or governmental body of the United
States or any state thereof or any political subdivision of the United States or
any state thereof.
3.7 as of the date hereof no fact or condition exists that would
(or could, with the passage of time, the giving of notice, or both) constitute
an Event of Default under this Agreement or any of the Loan Documents and no
event which has had or could reasonably be expected to have a Material Adverse
Effect has occurred and is continuing. For purposes of this Agreement, "Material
Adverse Effect" means a material adverse effect upon (i) the business,
operations, properties, assets or financial condition of Borrower; or (ii) the
ability of Borrower to perform the Secured Obligations.
SECTION 4. INSURANCE AND RISK OF LOSS
4.1 Risk of loss of, damage to or destruction of the Equipment
shall be borne by the Borrower and effective from the date of this Agreement and
until the payment and performance in full of all Secured Obligations, Borrower
shall at its own expense cause to be carried and maintained all risk casualty
insurance (covering risk of fire, theft and other such risks as the Lender may
require, including standard and extended coverage) with respect to each item of
Equipment in an amount no less than the replacement costs applicable to such
item of Equipment during the term of this Agreement. All policies evidencing
such casualty insurance shall contain a
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standard mortgagee's endorsement and shall provide for at least thirty days
prior written notice by the underwriter or insurance company to the Lender in
the event of cancellation or expiration. Borrower shall provide Lender with
insurance certificates evidencing the foregoing at time of closing.
4.2 If any item of Equipment is lost or rendered unusable as a
result of any physical damage to or destruction of such item of Equipment during
the period from the date hereof to and including the maturity date under the
Note or the date all Secured Obligations hereunder have been fully satisfied,
whichever is later, Borrower shall give to Lender prompt notice thereof.
Borrower shall determine, within fifteen (15) days after the date of occurrence
of such loss, damage or destruction, whether such item of Equipment can be
repaired and restored to the condition in which such item of Equipment was
required to be maintained as of the date immediately preceding such damage. If
Borrower determines that such item of Equipment can be repaired, Borrower, at
its expense, shall cause such item of Equipment to be promptly repaired. If
Borrower determines that such item of I Equipment is lost or cannot be repaired,
Borrower shall promptly notify the Lender and such item of Equipment shall be
deemed to have suffered a "Casualty Loss" for purposes of this Section as of the
date of the occurrence of such loss. Within fifteen (15) days following the
occurrence of any such loss, damage or destruction, Borrower shall notify the
Lender of the item(s) of Equipment which has suffered such Casualty Loss ("Loss
Item"), and within thirty (30) days thereafter (the "Settlement Date"), Borrower
shall either (a) replace such item(s) of Equipment with equipment of the same
model, type and feature configuration, in an operating condition and repair no
less than that required hereunder of the damaged or lost equipment immediately
prior to the date of such damage or loss, and having a fair market value no less
than the Casualty Value (as defined herein) applicable to such item of Equipment
as of the date immediately prior to such damage, in which case such replacement
equipment shall for all purposes hereunder become part of the Collateral and
(without limiting the preceding provisions) Borrower shall grant to Lender a
first lien and security interest in respect of such replacement equipment
pursuant to the terms of this Agreement, and Borrower shall provide the Lender
evidence satisfactory to the Lender of Borrower's good and marketable title to
such replacement equipment (free of any liens, security interests or
encumbrances other than those created by this Agreement and Borrower shall be
entitled to receive the amount of any insurance or other recovery received by
Lender up to cost of obtaining the replacement equipment; or (b) so long as no
Event of Default or event which with the giving of notice or passage of time, or
both, would constitute an Event of Default, has occurred and is continuing,
Borrower may provide substitute equipment satisfactory to Lender to become part
of the Collateral and Borrower shall grant to Lender a first lien and security
interest in respect of such substitute equipment pursuant to the terms of this
Agreement, and Borrower shall provide the Lender evidence satisfactory to Lender
of Borrower's good and marketable title to such substitute equipment (free of
any liens, security interests or encumbrances other than created by this
Agreement and Lender shall provide any required endorsements in connection with
any insurance proceeds received by Borrower pursuant to such insurance policies;
or (c) Borrower shall pay Lender the insurance proceeds payable pursuant to such
insurance policies ("Insurance Proceeds") with respect to such Loss Item(s) and
the principal amount of the Note (and interest accrued on the principal amount
so prepayable) shall become due and payable on the Settlement Date to the extent
of the replacement cost for all such Loss Item(s). For purposes of this Section
4.2, Casualty Value shall mean an amount equal to the greater of the fair market
value of the Equipment as of the date of the Casualty Loss or the outstanding
principal and accrued interest on the Loan. Moneys so received shall be applied,
on the date of such receipt, as follows: first, to pay any
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accrued interest on the outstanding principal amount of the Note on such date;
second, to prepay, the outstanding principal amount of the Note (to the extent
of the fair market value attributable to such Loss Item(s)); third, to pay any
other Indebtedness of amounts then due and owing to the Lender hereunder; and
fourth, so long as there has occurred no Event of Default under Section 8 hereof
and no event which with the giving of notice or passage of time or both would
constitute an Event of Default, has occurred and is continuing, Borrower and
Lender hereby agree that the balance of any such Insurance Proceeds shall be
paid promptly to the Borrower.
4.3 Effective upon the date hereof under the Note and while there
are any Secured Obligations outstanding, Borrower shall cause to be carried and
maintained comprehensive general liability insurance with regard to the
Collateral against risks customarily insured against in the Borrower's business.
Such risks shall include, without limitation, the risks of death, bodily injury
and property damage associated with the Collateral. All policies evidencing such
insurance shall provide for at least thirty (30) days prior written notice by
the underwriter or insurance company to the Lender in the event of cancellation
or expiration.
4.4 Borrower shall and does hereby indemnify and hold Lender, its
agents and shareholders harmless from and against any and all claims, costs,
expenses, damages and liabilities (including without limitation such claims,
costs, expenses, damages and liabilities based on liability in tort including
without limitation strict liability in tort) including reasonable attorneys'
fees, arising out of Borrower's ownership, possession, operation, control, use,
maintenance, delivery, or other disposition of the Collateral. Notwithstanding
the foregoing, Borrower shall not be responsible under the terms of this Section
4.4 to a party indemnified hereunder for any claims, costs, expenses, damages
and liabilities occasioned by the negligence or willful misconduct of such
indemnified party.
SECTION 5. COVENANTS OF BORROWER
Borrower covenants and agrees as follows at all times while any of the
Secured Obligations remain outstanding:
5.1 Borrower shall maintain the Equipment in good operating order,
repair, condition and appearance and protect the Equipment from deterioration,
other than normal wear and tear. Borrower shall not use the Equipment or permit
its use for any purpose other than for which it was designed. Borrower's
obligation regarding the maintenance of the Equipment shall include, without
limitation, all maintenance, repair, refurbishment and replacement recommended
or advised either by the manufacturer, or that commonly performed by prudent
business and/or professional practice. Any exceptions or qualifications
expressed in this Agreement relating to normal or ordinary wear and tear shall
not be deemed to limit Borrower's obligations pursuant to the preceding
sentence.
5.2 Borrower shall only relocate any item of the Collateral
provided that: (a) it shall have caused to be filed and/or delivered to the
Lender all UCC financing statements, certificates or other documents or
instruments necessary to continue in effect the first prior perfected security
interest of the Lender in the Collateral, and (b) it shall have given the Lender
no less than fifteen (15) days prior written notice of such relocation.
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5.3 Upon the request of Lender, Borrower shall, during business
hours, make the Equipment available to Lender for inspection at the place where
it is normally located and shall make Borrower's log and maintenance records
pertaining to the Equipment available to the Equipment available to Lender for
inspection. Borrower shall take all action necessary to maintain such logs and
maintenance records in a correct and complete fashion.
5.4 Upon the request of Lender, Borrower shall cause the Equipment
to be plainly, permanently and conspicuously marked, by stenciling or by metal
tag or plate affixed thereto, indicating Lender's security interest in the
Equipment. Borrower shall replace any such stenciling, tag or plate which may be
removed or destroyed or become illegible. Borrower shall keep all Equipment free
from any marking or labeling which might be interpreted as a claim of ownership
adverse to Borrower's.
5.5 Borrower covenants and agrees to pay when due, all taxes, fees
or other charges of any nature whatsoever (together with any related interest or
penalties) now or hereafter imposed or assessed against Borrower, Lender or the
Collateral or upon Borrower's ownership, possession, use, operation or
disposition thereof or upon Borrower's rents, receipts or earnings arising
therefrom. Borrower shall file on or before the due date therefor all personal
property tax returns in respect of the Collateral.
5.6 Borrower shall furnish to Lender the financial statements
listed hereinafter, prepared in accordance with generally accepted accounting
principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within
thirty (30) days) after the end of each month: an internally prepared
income statement, balance sheet, and cash flow statement, (including
the commencement of any material litigation by or against Borrower),
each certified by Borrower's Chief Executive or Financial Officer to be
true and correct;
(b) as soon as practicable (and in any event within
ninety (90) days) after the end of each fiscal year, audited Financial
Statements, setting forth in comparative form the corresponding figures
for the preceding fiscal year, and accompanied by any audit report and
opinion of the independent certified public accountants selected by
Borrower; and
(c) promptly any additional information (including but
not limited to tax returns, income statements, balance sheets, and
names of principal creditors) as Lender reasonably believes necessary
to evaluate Borrower's continuing ability to meet financial
obligations.
5.7 Notwithstanding the foregoing, after the effective date of the
initial registration statement covering a public offering of Borrower's
securities, the term "Financial Statements" shall be deemed to refer to only
those statements required by the Securities and Exchange Commission, to be
provided no less frequently than quarterly. Borrower will from time to time
execute, deliver and file, alone or with Lender, any financing statements,
security agreements or other documents; and take all further action that may be
necessary, or that Lender may reasonably request, to confirm, perfect, preserve
and protect the security interests intended to be granted hereby, and in
addition, and for such purposes only, Borrower hereby authorizes Lender to
execute and deliver on behalf of Borrower and to file such financing statements,
security
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agreement and other documents without the signature of Borrower either in
Lender's name or in the name of Borrower as agent and attorney-in-fact for
Borrower.
5.8 Borrower shall protect and defend Borrower's title as well as
the interest of the Lender against all persons claiming any interest adverse to
Borrower or Lender and shall at all times keep the Collateral free and clear
from any attachment or levy, liens or encumbrances whatsoever (except any placed
thereon by Lender, or any liens arising by operation of law with respect to any
obligations not yet overdue or any other liens consented to in writing by
Lender) and shall give Lender immediate written notice thereof.
SECTION 6. CONDITIONS PRECEDENT TO LOAN
The obligation of Lender to fund the Loan on each Advance Date(s) shall be
subject to satisfaction by Borrower or waiver by Lender, in Lender's sole
discretion, of the following conditions:
6.1 (a) The Advance Date(s) for any installment shall occur on or
before September 25, 1999.
6.2 DOCUMENT DELIVERY. Borrower, on or prior to the Closing Date,
shall have delivered to Lender the following, in form and substance reasonably
satisfactory to Lender:
(a) executed originals of the Agreement, Note(s), Warrant
Agreement and any documents reasonably required by Lender to effectuate
the liens of Lender, with respect to all Collateral;
(b) certified copy of resolutions of Borrower's board of
directors evidencing approval of the borrowing and other transactions
evidenced by the Loan Documents;
(c) certified copies of the Certificate of Incorporation
and the Bylaws of Borrower, as amended through the Closing Date;
(d) certificate of good standing for Borrower from its
state of incorporation and similar certificates from all other
jurisdictions in which it does business and where the failure to be
qualified would have a Material Adverse Effect;
(e) such other documents as Lender may reasonably
request.
6.3 ADVANCE REQUEST. Borrower, on or prior to each Advance
Date(s), shall have delivered to Lender the following:
(a) a minimum of two (2) business days prior to the
Advance Date(s), written notice in the form of an Advance Request, or
as otherwise specified by Lender from time to time, specifying amount
of such Advance and wire transfer instructions;
(b) such other documents as Lender may reasonably
request.
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6.4 PERFECTION OF SECURITY INTERESTS. Borrower shall have taken or
caused to be taken such actions requested by Lender to grant Lender a first
priority perfected security interest in the Collateral. Such actions shall
include, without limitation, the delivery to Lender of all appropriate financing
statements, executed by Borrower, as to the Collateral granted by Borrower for
all jurisdictions as may be necessary or desirable to perfect the security
interest of Lender in such Collateral
6.5 ABSENCE OF EVENTS OF DEFAULTS. As of the Closing Date or the
Advance Date, no fact or condition exists that would (or would, with the passage
of time, the giving of notice, or both) constitute an Event of Default under
this Agreement or any of the Loan Documents.
6.6 MATERIAL ADVERSE EFFECT. As of the Closing Date or the Advance
Date, no event which has had or could reasonably be expected to have a Material
Adverse Effect has occurred and is continuing.
SECTION 7. ASSIGNMENT BY LENDER
7.1 Borrower acknowledges and understands that Lender may sell and
assign all or a part of its interest hereunder and under the Note and Loan
Documents to any person or entity (an "Assignee"). After such assignment the
term Lender shall mean such Assignee, and such Assignee shall be vested with all
rights, powers and remedies of Lender hereunder with respect to the interest so
assigned; but with respect to any such interest not so transferred, the Lender
shall retain all rights, powers and remedies hereby given. No such assignment by
Lender shall relieve Borrower of any of its obligations hereunder. Borrower
shall acknowledge such assignment or assignments as shall be designated by
written notice given by Lender to Borrower. The Lender agrees that in the event
of any transfer by it of the Note, it will endorse thereon a notation as to the
portion of the principal of the Note which shall have been paid at the time of
such transfer and as to the date to which interest shall have been last paid
thereon.
SECTION 8. DEFAULT
The occurrence of any one or more of the following events (herein
called "Events of Default") shall constitute a default hereunder and under the
Note:
8.1 The Borrower defaults in the payment of any principal or
interest payable under this Agreement, the Note or any of the other Loan
Documents and such default continues for more than five (5) days after the due
date thereof;
8.2 The Borrower defaults in the payment or performance of any
other covenant or obligation of the Borrower hereunder or under the Note or any
other Loan Documents for more than ten (10) days after the Lender has given
notice of such default to the Borrower;
8.3 Any representation or warranty made herein by the Borrower
shall prove to have been false or misleading in any material respect;
8.4 The making of an assignment by Borrower for the benefit of its
creditors or the admission by Borrower in writing of its inability to pay its
debts as they become due, or the insolvency of Borrower, or the filing by
Borrower of a voluntary petition in bankruptcy, or the
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adjudication of Borrower as a bankrupt, or the filing by Borrower of any
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under any
present or future statute, law or regulation, or the filing of any answer by
Borrower admitting, or the failure by Borrower to deny, the material allegations
of a petition filed against it for any such relief, or the seeking or consenting
by Borrower to, or acquiescence by Borrower in, the appointment of any trustee,
receiver or liquidator of Borrower or of all or any substantial part of the
properties of Borrower, or the inability of Borrower to pay its debts when due,
or the commission by Borrower of any act of bankruptcy as defined in the Federal
Bankruptcy Act, as amended;
8.5 The failure by Borrower, within sixty (60) days after the
commencement of any proceeding against Borrower seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, to obtain the
dismissal of such proceeding or, within sixty (60) days after the appointment,
without the written consent or acquiescence of Lender, of any trustee, receiver
or liquidator of Borrower or of all or any substantial part of the properties of
Borrower, to vacate such appointment; or
8.6 The default by Borrower under any other notes or other agreement
for borrowed money, lease or other agreement between Borrower and Lender.
SECTION 9. REMEDIES
Upon the occurrence hereof of any one or more Events of Default,
Lender, at its option, may declare the Note to be accelerated and immediately
due and payable, (provided, that upon the occurrence of an Event of Default of
the type described in 8.4 or 8.5, the Note and all other Secured Obligations
shall automatically be accelerated and made due and payable without any further
act) whereupon the unpaid principal of and accrued interest on such Note shall
become immediately due and payable, and shall thereafter bear interest at the
Default Rate and calculated in accordance with Section 1.2. Lender may exercise
all rights and remedies with respect to the Collateral granted pursuant hereto
for such Note, or otherwise available to it under applicable law, including the
right to release, hold or otherwise dispose of all or any part of the Collateral
and the right to utilize, process and commingle the Collateral.
Upon the happening and during the continuance of any Event of Default,
Lender may then, or at any time thereafter and from time to time, apply,
collect, sell in one or more sales, lease or otherwise dispose of, any or all of
the Collateral, in its then condition or following any commercially reasonable
preparation or processing, in such order as Lender may elect, and any such sale
may be made either at public or private sale at its place of business or
elsewhere. Borrower agrees that any such public or private sale may occur upon
five (5) calendar day's notice to Borrower. Lender may require Borrower to
assemble the Collateral and make it available to Lender at a place designated by
Lender which is reasonably convenient to Lender and Borrower, The proceeds of
any sale, disposition or other realization upon all or any part of the
collateral shall be distributed by Lender in the following order of priorities:
First, to Lender in an amount sufficient to pay in full Lender's
reasonable costs and professionals' and advisors' fees and expenses;
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Second, to Lender in an amount equal to the then unpaid amount of the
Secured Obligations in such order and priority as Lender may choose In
its sole discretion; and
Finally, upon payment in full of all of the Secured Obligations, to
Borrower or its representatives or as a court of competent jurisdiction
may direct.
The Lender shall return to the Borrower any surplus Collateral remaining after
payment of all Secured Obligations.
SECTION 10. MISCELLANEOUS
10.1 Borrower shall remain liable to Lender for any unpaid Secured
Obligations, advances, costs, charges and expenses, together with interest
thereon and shall pay the same immediately to Lender at Lender's offices.
10.2 The powers conferred upon Lender by this Agreement are solely
to protect its interest in the Collateral and shall not impose any duty upon
Lender to exercise any such powers.
10.3 This is a continuing Agreement and the grant of a security
interest hereunder shall remain in full force and effect and all the rights,
powers and remedies of Lender hereunder shall continue to exist until the
Secured Obligations are paid in full as the same become due and payable. When
Borrower has paid in full all Secured Obligations, Lender will execute a written
termination statement, reassigning to Borrower, without recourse, the Collateral
and all rights conveyed hereby and return possession (if Lender has possession)
of the Collateral to Borrower. The rights, powers and remedies of Lender
hereunder shall be in addition to all rights, powers and remedies given by
statute or rule of law and are cumulative. The exercise of any one or more of
the rights, powers and remedies provided herein shall not be construed as a
waiver of any other rights, powers and remedies of Lender. Furthermore,
regardless of whether or not the UCC is in effect in the jurisdiction where such
rights, powers and remedies are asserted, Lender shall have the rights, powers
and remedies of a secured party under the UCC.
10.4 Upon payment in full of all Secured Obligations, the Lender
shall cancel the Note, this Agreement and all UCC financing statements, if any,
and shall promptly deliver all such canceled documents to the Borrower.
10.5 GOVERNING LAW. This Agreement, the Note and the other Loan
Documents have been negotiated and delivered to Lender in the State of Illinois
and shall not become effective until accepted by Lender in the State of
Illinois. Payment to Lender by Borrower of the Secured Obligations is due in the
State of Illinois. This Agreement shall be governed by, and construed and
enforced in accordance with the laws of the State of Illinois excluding conflict
of laws principles that would cause the application of laws of any other
jurisdiction.
10.6 CONSENT TO JURISDICTION AND VENUE. All judicial proceedings
arising in or under or related to this Agreement, the Note or any of the other
Loan Documents may be brought in any state or federal court of competent
jurisdiction located in the State of Illinois. By execution and delivery of this
Agreement, each party hereto generally and unconditionally: (a) consents to
personal jurisdiction in Xxxx County, State of Illinois; (b) waives any
objection as to jurisdiction or venue in the aforesaid courts; and (d)
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Agreement, the Note and the other Loan Documents. Service of
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process on any party hereto in any action arising out of or relating to this
Agreement shall be effective if given in accordance with the requirements for
notice set forth in Section 10.8 below and shall be deemed effective and
received as set forth in Section 10.8 below. Nothing herein shall affect the
right to serve process in any other manner permitted by law or shall limit the
right of either party to bring proceedings in the courts of any other
jurisdiction.
10.7 Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
such law, such provision shall be ineffective only to the extent and duration of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
10.8 Any notice required or given hereunder shall be deemed
properly given upon the earlier of: (i) the first business day after
transmission by facsimile or hand delivery or deposit with an overnight express
service or overnight mail delivery service; or (ii) or three (3) days after
mailed, postage prepaid, in each case, addressed to the designated recipient at
its address set forth herein or such other address as such party may advise the
other party by notice given in accordance with this provision.
10.9 Lender and Borrower acknowledge that there are no agreements
or understandings, written or oral, between Lender and Borrower with respect to
the Loan, other than as set forth herein, in the Note and the other Loan
Documents and that this Agreement, the Note and the other Loan Documents contain
the entire agreement between Lender and Borrower with respect thereto. None of
the terms of this Agreement, the Note and the other Loan Documents may be
amended except by an instrument executed by each of the parties hereto.
10.10 No omission, or delay, by Lender at any time to enforce any
right or remedy reserved to it, or to require performance of any of the terms,
covenants or provisions hereof by Borrower at any time designated, shall be a
waiver of any such right or remedy to which Lender is entitled, nor shall it in
any way affect the right of Lender to enforce such provisions thereafter.
10.11 All agreements, representations and warranties contained in
this Agreement or the Note, or in any Loan Documents delivered pursuant hereto
or in connection herewith shall be for the benefit of Lender and any Assignee
and shall survive the execution and delivery of this Agreement or the Note and
the expiration or other termination of this Agreement or the Note.
10.12 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument.
10.13 This Agreement shall be binding upon, and shall inure to the
benefit of, Borrower and its permitted assigns (if any). Borrower shall not
assign its obligations under this Agreement, the Note or any of the other Loan
Documents without Lender's express written consent and any such attempted
assignment shall be void and of no effect. Any assignment by Borrower in
connection with a "Merger" (as defined below) shall be subject to Lender's prior
consent. Any consent granted by Lender shall be conditioned upon such surviving
entity or transferee assuming Borrower's Secured Obligations hereunder pursuant
to assignment documents reasonably acceptable to Lender. If Lender reasonably
withholds its consent to such assignment in
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connection with a Merger, the outstanding principal and accrued and unpaid
interest shall be prepaid in whole without a prepayment premium.
For purposes of this Agreement, a "Merger" shall mean any consolidation
or merger of the Borrower with or into any other corporation or entity, any sale
or conveyance of an or substantially all of the assets or stock of the Borrower
by or to any other person or entity in which Borrower is not the surviving
entity.
IN WITNESS WHEREOF, the Borrower and the Lender have duly executed and
delivered this Agreement as of the day and year first above written.
BORROWER: CYTOKINETICS, INCORPORATED.
By: /s/ Xxx X. Xxxxxxxx
------------------------------
Title: Chief Financial Officer
Date: 10-1-98
ACCEPTED IN ROSEMONT, ILLINOIS:
LENDER: COMDISCO, INC.
By: /s/ XXXXX X. XXXX
------------------------------
Title: PRESIDENT
COMDISCO VENTURES DIVISION
Date: SEP 30 1998
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