Exhibit 10.6
EQUIPMENT TERM NOTE
$1,000,000 Radnor, Pennsylvania
November 4, 2002
FOR VALUE RECEIVED, the undersigned, ANIMAS CORPORATION, a Delaware
corporation (the "Company") and ANIMAS DIABETES CARE, LLC, a Delaware limited
liability company (each a "Borrower", and collectively, the "Borrowers") jointly
and severally promise to pay to the order of SILICON VALLEY BANK, a
California-chartered bank ("Bank"), at such place as the holder hereof may
designate, in lawful money of the United States of America, the aggregate unpaid
principal amount of all equipment advances ("Equipment Advances") made by Bank
to Borrowers in accordance with the terms and conditions of the Loan and
Security Agreement by and among Borrowers and Bank, of even date herewith (as
amended from time to time, the "Loan Agreement"), up to a maximum principal
amount of One Million Dollars ($1,000,000) ("Principal Sum"), or so much thereof
as may be advanced and remains unpaid. Borrowers may request Equipment Advances
under this Note from and until the Equipment Availability End Date. The unpaid
Principal Sum, together with interest thereon at the rate or rates provided in
the Loan Agreement, shall be payable as set forth in the Loan Agreement.
Each Borrower further agrees that, if any payment made by any Borrower
or any other person is applied to this Note and is at any time annulled, set
aside, rescinded, invalidated, declared to be fraudulent or preferential or
otherwise required to be refunded or repaid, or the proceeds of any property
hereafter securing this Note is required to be returned by Bank to any Borrower,
its estate, trustee, receiver or any other party, including, without limitation,
such Borrower, under any bankruptcy law, state or federal law, common law or
equitable cause, then, to the extent of such payment or repayment, each
Borrower's liability hereunder (and any lien, security interest or other
collateral securing such liability) shall be and remain in full force and
effect, as fully as if such payment had never been made, or, if prior thereto
any such lien, security interest or other collateral hereafter securing
Borrowers' liability hereunder shall have been released or terminated by virtue
of such cancellation or surrender, this Note (and such lien, security interest
or other collateral) shall be reinstated in full force and effect, and such
prior cancellation or surrender shall not diminish, release, discharge, impair
or otherwise affect the obligations of Borrowers in respect of the amount of
such payment (or any lien, security interest or other collateral securing such
obligation).
This Note is the "Equipment Term Note" described in the Loan Agreement,
to which reference is hereby made for a more complete statement of the terms and
conditions under which the loans and Equipment Advances evidenced hereby are
made. This Note is secured as provided in the Loan Agreement. All capitalized
terms used herein and not otherwise defined shall have the meanings given to
such terms in the Loan Agreement.
Each Borrower irrevocably waives the right to direct the application of
any and all payments at any time hereafter received by Bank from or on behalf of
Borrowers and each Borrower irrevocably agrees that Bank shall have the
continuing exclusive right to apply any and all such payments against the then
due and owing obligations of Borrowers as Bank may deem advisable. In the
absence of a specific determination by Bank with respect thereto, all payments
shall be applied in the following order: (a) then due and payable fees and
expenses; (b) then due and payable interest payments and mandatory prepayments;
and (c) then due and payable principal payments and optional prepayments.
Bank is hereby authorized by each Borrower to endorse on Bank's books
and records each Equipment Advance made by Bank under this Note and the amount
of each payment or prepayment of principal of each such Equipment Advance
received by Bank; it being understood, however, that failure to make any such
endorsement (or any error in notation) shall not affect the obligations of
Borrowers with respect to Equipment Advances made hereunder, and payments of
principal by Borrowers shall be credited to Xxxxxxxx, notwithstanding the
failure to make a notation (or any errors in notation) thereof on such books and
records.
The occurrence of any one or more of the following events shall
constitute an event of default (individually, an "Event of Default" and
collectively, the "Events of Default") under the terms of this Note:
(a) The failure of Borrowers to pay to Bank within three
(3) days of when due any and all amounts payable by Borrowers to Bank under the
terms of this Note; or
(b) The occurrence of an Event of Default (as defined
therein) under the terms and conditions of any of the other Loan Documents.
Upon the occurrence of an Event of Default, at the option of Bank, all
amounts payable by Borrowers to Bank under the terms of this Note shall
immediately become due and payable by Borrowers to Bank without notice to
Borrowers or any other person, and Bank shall have all of the rights, powers,
and remedies available under the terms of this Note, any of the other Loan
Documents and all applicable laws. Each Borrower and all endorsers, guarantors,
and other parties who may now or in the future be primarily or secondarily
liable for the payment of the indebtedness evidenced by this Note hereby
severally waive presentment, protest and demand, notice of protest, notice of
demand and of dishonor and non-payment of this Note and expressly agree that
this Note or any payment hereunder may be extended from time to time without in
any way affecting the joint and several liability of Borrowers, guarantors and
endorsers.
Each Borrower promises to pay all costs and expense of collection of
this Note and to pay all reasonable attorneys' fees incurred in such collection,
whether or not there is a suit or action, or in any suit or action to collect
this Note or in any appeal thereof. Each Borrower waives presentment, demand,
protest, notice of protest, notice of dishonor, notice of nonpayment, and
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any and all other notices and demands in connection with the delivery,
acceptance, performance default or enforcement of this Note, as well as any
applicable statutes of limitations. No delay by Bank in exercising any power or
right hereunder shall operate as a waiver of any power or right. Time is of the
essence as to all obligations hereunder.
The JOINT AND SEVERAL obligations of each Borrower under this Note
shall be absolute, irrevocable and unconditional and shall remain in full force
and effect until the outstanding principal of and interest on this Note and all
other Obligations or amounts due hereunder and under the Loan Agreement and the
Loan Documents shall have been indefeasibly paid in full in cash in accordance
with the terms thereof and this Note shall have been canceled.
The Borrowers each shall be jointly and severally liable on the payment
of the Obligations as and when due and payable in accordance with the provisions
of this Note, the Loan Agreement and the other Loan Documents. The term
"Borrowers" when used in this Note shall include all of the Borrowers,
individually and jointly, and Bank may (without notice to or consent of any or
all of the Borrowers and with or without consideration) release, compromise,
settle with, proceed against any or all of the Borrowers without affecting,
impairing, lessening or releasing the obligations of the other Borrower
hereunder.
This Note is issued pursuant to the Loan Agreement, which shall govern
the rights and obligations of Borrowers with respect to all obligations
hereunder.
Each Borrower acknowledges and agrees that this Note shall be governed
by the laws of the Commonwealth of Pennsylvania, excluding conflicts of laws
principles, even though for the convenience and at the request of Borrowers,
this Note may be executed elsewhere.
EACH BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE COMMONWEALTH OF PENNSYLVANIA IN ANY ACTION, SUIT,
OR PROCEEDING OF ANY KIND, AGAINST IT WHICH ARISES OUT OF OR BY REASON OF THIS
AGREEMENT; PROVIDED, HOWEVER, THAT IF FOR ANY REASON BANK CANNOT AVAIL ITSELF OF
THE COURTS OF PENNSYLVANIA, EACH BORROWER ACCEPTS JURISDICTION OF THE COURTS AND
VENUE IN SANTA XXXXX COUNTY, CALIFORNIA. BORROWERS AND BANK EACH HEREBY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND
AGREES THAT THE FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO
ENTER INTO THIS AGREEMENT. EACH PARTY REPRESENTS AND WARRANTS THAT IT
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HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL.
[SIGNATURES ARE ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, Borrowers have caused this Note to be executed
under seal by their duly authorized officers or members, as the case may be, of
the date first written above.
WITNESS/ATTEST: ANIMAS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx (SEAL)
___________________________ ----------------------
Name: Xxxxxxx X. Xxxxx
Title: V.P. Finance
ANIMAS DIABETES CARE, LLC
By: /s/ Xxxxxxx X. Xxxxx (SEAL)
___________________________ ----------------------
Name: Xxxxxxx X. Xxxxx
Title: V.P. Finance
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