EXHIBIT 10.1
SILICON VALLEY BANK
SPECIALTY FINANCE DIVISION
ACCOUNTS RECEIVABLE FINANCING AGREEMENT
This ACCOUNTS RECEIVABLE FINANCING AGREEMENT (the "Agreement"), dated as
of the Effective Date is between Silicon Valley Bank, Specialty Finance Division
("Bank"), and Transgenomic, Inc., a Delaware corporation, ("Borrower"), whose
address is 00000 Xxxxx Xx., Xxxxx, Xxxxxxxx 00000 and with a FAX number of
000-000-0000.
1. DEFINITIONS. In this Agreement:
"Account Debtor" is defined in the California Uniform Commercial Code
and shall include any person liable on any Financed Receivable, such as, a
guarantor of the Financed Receivable and any issuer of a letter of credit or
banker's acceptance.
"Adjustments" are all discounts, allowances, returns, disputes,
counterclaims, offsets, defenses, rights of recoupment, rights of return,
warranty claims, or short payments, asserted by or on behalf of any Account
Debtor for any Financed Receivable.
"Advance" is defined in Section 2.2.
"Advance Rate" is 80%, or another percentage as Bank may establish from
time to time by giving notice thereof to Borrower.
"Applicable Rate" is a rate per annum equal to the "Prime Rate" plus
2.25 percentage points.
"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.
"Code" is the California Uniform Commercial Code.
"Collateral" is attached as Exhibit "A".
"Collateral Handling Fee" is defined in Section 3.4.
"Collections" are all funds received by Bank from or on behalf of an
Account Debtor for Receivables.
"Compliance Certificate" is attached as Exhibit "B".
"Domestic Receivables" are Receivables for which the Account Debtor has
its principal place of business in the United States.
"Early Termination Fee" is defined in Section 3.5.
"Effective Date" is the date in which the Bank executes this Agreement.
"Event of Default" is defined in Section 9.
"Facility" is an extension of credit by Bank to Borrower in order to
finance receivables with an aggregate Financed Receivable Balance not exceeding
the Facility Amount.
"Facility Amount" is $6,250,000.00.
"Facility Period" is the period beginning on the Effective Date and
continuing until the Maturity Date, unless the period is terminated sooner
pursuant to the terms of this Agreement or extended pursuant to Section 4.3.
"Finance Charges" is defined in Section 3.2.
"Financed Receivables" are all Receivables, which Bank has accepted and
against which Bank has made an Advance. A Financed Receivable stops being a
Financed Receivable (but remains Collateral) when the Advance made against the
Financed Receivable has been paid in full.
"Financed Receivable Balance" is the total outstanding amount, at any
time, of all Financed Receivables.
"Foreign Receivables" are Receivables for which the Account Debtor does
not have its principal place of business in the United States but are: (1)
covered by credit insurance satisfactory to Bank, less any deductible; or (2)
supported by letter(s) of credit acceptable to Bank; or (3) that Bank approves
in writing.
"Good Faith Deposit" is described in Section 3.8.
"Guarantor" means any guarantor of the Obligations.
"Ineligible Receivable" is any Receivable:
(a) with regard to any Domestic Receivable, that is unpaid sixty (60)
calendar days after the due date of the invoice; or
(b) with regard to any Foreign Receivable, that is unpaid ninety (90)
calendar days after the due date of the invoice; or
(c) that is owed by an Account Debtor that has filed, or has had filed
against it, any bankruptcy case, assignment for the benefit of creditors,
receivership, or Insolvency Proceeding or who has become insolvent (as defined
in the United States Bankruptcy Code) or who is generally not paying its debts
as they become due; or
(d) for which there has been any breach of warranty or representation in
Section 6 or any breach of any covenant in this Agreement; or
(e) for which the Account Debtor asserts any Adjustment in excess of ten
percent (10%) of the value of the Receivable.
"Insolvency Proceeding" are proceedings 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.
"Invoice Transmittal" shows a Receivable which Bank may finance and, for
each Receivable, includes the Account Debtor's, name, address, invoice amount,
invoice date and invoice number and is signed by Borrower's authorized
representative.
"Lockbox" is described in Section 3.9.
"Maturity Date" is June 9, 2004, or each subsequent anniversary date
subject to Section 4.3, or the date of acceleration by Bank following an Event
of Default.
"Obligations" are all advances, liabilities, obligations, covenants and
duties owing, arising, due or payable by Borrower to Bank now or later under
this Agreement or any other document, instrument or agreement, associated
herewith (including those acquired by assignment) primary or secondary, such as
all Advances, Finance Charges, interest, fees, expenses, professional fees and
attorneys' fees or other.
"Permitted Indebtedness" is:
(a) Borrower's indebtedness to Bank under this Agreement;
(b) Indebtedness existing on the Effective Date and shown on the
Schedule 1;
(c) Subordinated Debt;
(d) Indebtedness to trade creditors incurred in the ordinary course of
business;
(e) Indebtedness secured by Permitted Liens, and
(f) Extensions, refinancings, modifications, amendments and
restatements of any items of Permitted Indebtedness (a) through (e) above,
provided that, without the express consent of Bank, the principal amount thereof
is not increased or the terms thereof are not modified to impose more burdensome
terms upon Borrower.
"Permitted Liens" are:
(a) Liens existing on the Effective Date and shown on Schedule 1 or
arising under this Agreement;
(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;
(c) Purchase money liens (i) on equipment acquired or held by Borrower
or its Subsidiaries incurred for financing the acquisition of the equipment, or
(ii) existing on equipment when acquired, if the lien is confined to such
equipment and the proceeds of the equipment;
(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;
(e) Liens incurred in the extension, renewal or refinancing of the
indebtedness secured by liens described in (a) through (d), 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.
"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 higher of (a) Bank's most recently announced "prime
rate," even if it is not Bank's lowest rate, or (b) 4.25%.
"Receivables" are all existing and later arising accounts receivable,
chattel paper, contract rights, rights to payment and other obligations owed to
Borrower in connection with its sale or lease of goods (including licensing
software and other technology) or provision of services, along with all credit
insurance, guaranties, letters of credit or other security associated therewith
and all merchandise returned or reclaimed by Borrower relating to any of the
foregoing and any proceeds therefrom.
"Reconciliation Day" is the last calendar day of each month.
"Reconciliation Period" is each calendar month.
"Subordination Agreement" is a written agreement, in form and substance
acceptable to Bank in Bank's sole discretion, under which a security interest
that Borrower has granted in any Collateral in order to secure indebtedness to
any third party creditor is expressly subordinated to the Bank's senior security
interest in such Collateral.
"Subordinated Debt" is debt incurred by Borrower that is subject to a
Subordination Agreement.
"Subsidiary" is for any Person, a joint venture, or any other business
entity of which more than 50% of the voting stock or other equity interests is
owned or controlled, directly or indirectly, by the Person or one or more
Affiliates of the Person.
"Tangible Net Worth" is, on any date, the consolidated total assets of
Borrower and its Subsidiaries minus, (i) 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) reserves not already
deducted from assets, and (ii) Total Liabilities.
"Total Liabilities" is on any day, obligations that should, under GAAP,
be classified as liabilities on Borrower's consolidated balance sheet, including
all indebtedness and Subordinated Debt.
2. FINANCING OF RECEIVABLES.
2.1. Request for Advances. During the Facility Period and as long as there
has been no Event of Default, Borrower may offer any and all Receivables to Bank
and request an Advance against such Receivables by delivery to Bank of an
Invoice Transmittal for each Receivable it offers. Bank may rely on information
on or with the Invoice Transmittal.
2.2. Acceptance of Receivables; Advances. Bank is not obligated to finance
any Receivable. Bank may approve any Account Debtor's credit before accepting
any Receivable. When Bank accepts a Receivable, Bank will lend to Borrower an
amount equal to the Advance Rate times the face amount of the Receivable (the
"Advance"). Bank may, in its discretion, change the percentage of the Advance
Rate. When Bank makes an Advance, the Receivable becomes a "Financed
Receivable." All representations and warranties in Section 6 must be true as of
the date of the Invoice Transmittal and of the Advance and no Event of Default
exists or would occur as a result of the Advance. The Financed Receivable
Balance outstanding at any time may not exceed the Facility Amount.
2.3. Conditions Precedent to Initial Advance. Bank's obligation to make the
initial Advance is subject to the condition precedent that it receive the
agreements, documents and fees it requires, including: (a) a Subordination
Agreement from General Electric Capital Corporation acknowledging Bank's first
lien position against all of the Collateral, except such specific equipment and
fixed assets as identified on Schedule 2 attached hereto, and (b) with regard to
any and all additional outstanding notes or credit facilities, either (i) a
Subordination Agreement or (ii) evidence satisfactory to Bank that such
outstanding note or credit facility has been terminated.
3. COLLECTIONS, FINANCE CHARGES, REMITTANCES AND FEES. The Obligations
shall be subject to the following fees and Finance Charges. Fees and Finance
Charges may, in Bank's discretion, be charged as an Advance, and shall
thereafter accrue fees and Finance Charges as described below. Bank may, in its
discretion, charge fee and Finance Charges to Borrower's deposit account
maintained with Bank.
3.1. Collections. Collections of each Financed Receivable will be credited by
Bank within one business day of its receipt against the Advance made with
respect to such Financed Receivable. As long as there is not an Event of Default
or an event that with notice of lapse of time will be an Event of Default,
within three (3) business days of Bank's receipt of any Collections, Bank will
use its best efforts to remit to Borrower the difference of (i) the amount of
Collections in excess of the amount for which Bank has made an Advance to
Borrower for such Financed Receivable, plus any amount received for Receivables
other than Financed Receivables, minus (ii) any amount then due and owing to
Bank hereunder, such as outstanding fees, expenses or otherwise. This Section
does not impose any affirmative duty on Bank to do any act other than to turn
over amounts. All Receivables and Collections are Collateral and if an Event of
Default occurs, Bank need not remit Collections of Collateral and may apply them
to the Obligations.
3.2. Finance Charges. In computing Finance Charges on the Obligations, all
Collections received by Bank shall be deemed applied by Bank on account of the
Obligations within one business day after receipt of the Collections. Borrower
will pay a finance charge (the "Finance Charge") of (i) the Applicable Rate
times (ii) the number of days in the Reconciliation Period divided by 360 days
times (iii) the outstanding average daily Financed Receivable Balance for that
Reconciliation Period. After an Event of Default, Obligations accrue interest at
5 percent above the Applicable Rate effective immediately before the Event of
Default.
3.3. Commitment Fee. A fully earned, non-refundable commitment fee of $62,500
was paid March 31, 2003,and receipt is hereby acknowledged.
3.4. Collateral Handling Fee. On each Reconciliation Day, Borrower will pay
to Bank a collateral handling fee, equal to $3,000 (the "Collateral Handling
Fee").
3.5. Early Termination Fee. A fully earned, non-refundable early termination
fee of 1% of the Facility Amount (the "Early Termination Fee") is due upon
voluntary full payment of the Obligations and termination of this Facility by
Borrower prior to June 9, 2004, unless the Obligations are paid in full from
borrowings under a loan agreement with Bank.
3.6. Accounting. After each Reconciliation Period, Bank will provide an
accounting of the transactions for that Reconciliation Period, including the
amount of all Financed Receivables, all Collections, Adjustments, Finance
Charges, and the Collateral Handling Fee. If Borrower does not object to the
accounting in writing within 30 days it is considered correct. All Finance
Charges and other interest and fees calculated on the basis of a 360 day year
and actual days elapsed.
3.7. Deductions. Bank may deduct fees, finance charges and other amounts due
from any Advances made or Collections received by Bank.
3.8. Good Faith Deposit. Borrower has paid to Bank a good faith deposit of
$10,000 to initiate Banks due diligence review process (the "Good Faith
Deposit"). Any portion of the Good Faith Deposit not utilized to pay expenses
will be refunded to Borrower.
3.9. Account Collection Services; Lockbox. Borrower shall notify and direct
all of the Borrower's Account Debtors to make all payments for Borrower's
Receivables to a lockbox account established with the Bank ("Lockbox") or to
wire transfer payments to a cash collateral account that Bank controls.
Notwithstanding the foregoing, Bank shall have the right to notify and direct
all of Borrower's Account Debtors to make payments to the Lockbox. It will be
considered an immediate Event of Default if the Lockbox is not set-up and
operational within 45 days from the date of this Agreement. Until such time as
the Lockbox is set-up and operational, Borrower shall provide Bank by the close
of business on each Friday a detailed cash receipts journal detailing the
amounts collected on any Financed Receivable. In addition, if any amount is
collected by Borrower with respect to a Receivable after the date the Lockbox is
operational, such amount will be held in constructive trust by the Borrower for
the Bank and will be promptly deposited by Borrower into the Lockbox.
4. REPAYMENT OF OBLIGATIONS.
4.1. Repayment on Maturity. Borrower will repay each Advance on the earliest
of: (a) payment of the Financed Receivable in respect which the Advance was
made, (b) the Financed Receivable becomes an Ineligible Receivable, (c) when any
Adjustment is made to the Financed Receivable (but only to the extent of the
Adjustment if the Financed Receivable does not become an Ineligible Receivable
as a result of such Adjustment), or (d) the Maturity Date. Each payment will
also include all accrued Finance Charges on the Advance and all other amounts
due hereunder.
4.2. Repayment on Event of Default. When there is an Event of Default,
Borrower will, if Bank demands (or, in an Event of Default under Section 9(B),
immediately without notice or demand from Bank) repay all of the Advances. The
demand may, at Bank's option, include the Advance for each Financed Receivable
then outstanding and all accrued Finance Charges, attorneys and professional
fees, court costs and expenses, and any other Obligations.
4.3. Extension Option. Borrower shall have the right to extend the Facility
Period for additional twelve (12) month periods subject to the following terms
and conditions:
(A) Borrower shall request the extension, if at all, by written
notice to Bank not more than one hundred twenty (120) days, and not less than
thirty (30) days, prior to the Maturity Date. Bank shall acknowledge in writing
with thirty (30) days of receipt of such notice whether such requested extension
shall be granted.
(B) At the time of the request, and at the time of the extension,
there shall not exist any Event of Default.
(C) Current financial statements regarding Borrower and any Guarantor
and all other financial statements and other information as may be required
hereunder shall have been submitted to Bank within the time periods prescribed
hereunder.
(D) Whether or not the extension becomes effective, Borrower shall
pay all out-of-pocket costs and expenses incurred by Bank in connection with the
proposed extension (pre-and post-closing), including, without limitation,
appraisal fees and legal fees; all such costs and expenses incurred up to the
time of Bank's written instrument confirming such extension shall be due and
payable prior to Bank's execution of that instrument (or if the proposed
extension does not become effective, then upon demand by Bank), and any failure
to pay such amounts shall constitute a default hereunder. Upon request, Bank
will provide Borrower with an itemization of all expenses that are due in
connection with such extension.
(E) Not later than the Maturity Date, (i) the extension shall have
been documented to Bank's satisfaction by Borrower, Guarantors, Bank, and all
other parties deemed necessary by Bank; and (ii) Bank and Borrower shall agree
as to the amount of the Early Termination Fee to apply during such extension
period.
5. POWER OF ATTORNEY. Borrower irrevocably appoints Bank and its successors
and assigns as Borrower's attorney-in-fact and authorizes Bank to:
(A) Regardless of whether there has been an Event of Default:
(1) prepare, file and sign Borrower's name on any notice, claim,
assignment, demand, draft, or notice of or satisfaction of lien or mechanics'
lien or similar document;
(2) notify all Account Debtors to pay Receivables to Bank
directly;
(3) receive, open, and dispose of mail addressed to Borrower;
(4) endorse Borrower's name on checks or other instruments;
(5) execute on Borrower's behalf any instruments, documents, or
financing statements to perfect Bank's interests in the Financed Receivables and
Collateral; and
(6) do all acts and things necessary or expedient in connection
with the foregoing.
(B) After the occurrence of an Event of Default:
(1) sell, assign, transfer, pledge, compromise, or discharge all
or any part of the Financed Receivables; and
(2) demand, collect, xxx, and give releases to any Account Debtor
for monies due and compromise, prosecute, or defend any action, claim, case or
proceeding about the Financed Receivables, including filing a claim or voting a
claim in any bankruptcy case in Bank's or Borrower's name, as Bank chooses.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1. Representations and Warranties. Borrower represents and warrants for
each Financed Receivable:
(A) Borrower is the owner with legal right to sell, transfer and
assign such Financed Receivable;
(B) The correct amount is shown on the Invoice Transmittal relating
thereto and is not disputed;
(C) Payment is not contingent on any unperformed obligation or
contract and Borrower has fulfilled all obligations necessary to its right to
receive payment as of the Invoice Transmittal date;
(D) Such Financed Receivable is based on an actual sale and delivery
of goods and/or services rendered, is due to Borrower, is not past due or in
default, has not been previously sold, assigned, transferred, or pledged and is
free of any liens, security interests and encumbrances, other than those created
hereby;
(E) There are no defenses, offsets, counterclaims or agreements for
which the Account Debtor may claim any deduction or discount;
(F) Borrower reasonably believes that the Account Debtor is solvent
and not subject to any Insolvency Proceedings;
(G) Bank has the right to endorse and/ or require Borrower to endorse
all payments received on Financed Receivables and all proceeds of other
Collateral.
6.1.1 Additional Representations and Warranties. Borrower represents and
warrants as follows:
(A) Borrower is duly existing and in good standing in its state of
formation 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 this
Agreement has been duly authorized, and does not conflict with Borrower's
organizational documents, nor constitute an Event of Default under any material
agreement by which Borrower is bound. Borrower is not in default under any
agreement to which or by which it is bound.
(B) Borrower has good title to the Collateral. All inventory is in
all material respects of good and marketable quality, free from material
defects.
(C) Borrower is not an "investment company" or a company "controlled"
by an "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 G, T and U of the Federal Reserve Board of Governors).
Borrower has complied with the Federal Fair Labor Standards Act. Borrower has
not materially violated, in Bank's discretion, any laws, ordinances or rules.
None of Borrower's properties or assets have been used by Borrower, to the best
of Borrower's knowledge, by previous persons, in disposing, producing, storing,
treating, or transporting any hazardous substance other than legally. 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.
(D) Borrower will maintain its primary depository and operating
accounts with Bank, all of which such accounts will be established within 45
days of document execution. In the event any accounts, excluding foreign
accounts, consisting in the aggregate of more than 15% of Borrower's total
deposits continue to exist after 45 days of document execution, Borrower shall
execute and deliver to Bank an account control agreement in form and content
acceptable to Bank in Bank's sole discretion.
(E) Borrower has not filed or had filed against it Insolvency
Proceedings and does not anticipate any filing.
(F) 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
statement contained in the certificates or statement not misleading.
(G) Within 60 days from the Effective Date, Borrower shall deliver to
Bank a Landlord's Consent in the form attached hereto as Exhibit C from the
landlord of Borrower's corporate offices in Omaha, Nebraska and of Borrower's
warehouse facilities located in Omaha, Nebraska, Boulder, Colorado and San Jose,
California.
6.2. Affirmative Covenants. Borrower will do all of the following:
(A) Maintain its corporate existence and good standing in its
jurisdictions of incorporation and maintain its qualification in each
jurisdiction necessary to Borrower's business or operations.
(B) Give Bank at least 10 days prior written notice of changes to its
name, organization, chief executive office or location of records.
(C) Pay all its taxes including gross payroll, withholding and sales
taxes when due and will deliver satisfactory evidence of payment if requested.
(D) Give Bank copies of all Forms 10-K, 10-Q and 8-K (or equivalents)
within 5 days of filing with the Securities and Exchange Commission, while any
Obligation is outstanding.
(E) 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.
(F) Provide Bank with a Compliance Certificate no later than 5 days
following each quarter end or as requested by Bank.
(G) Provide Bank with, as soon as available, but no later than 30
days following each Reconciliation Period, a company prepared balance sheet and
income statement, prepared under GAAP,
consistently applied, covering Borrower's operations during the period, an aged
listing of accounts receivable and accounts payable and a deferred revenue
listing.
(H) Immediately notify, transfer and deliver to Bank all Collections
Borrower receives for Financed Receivables.
(I) Borrower will allow Bank to audit Borrower's Collateral,
including but not limited to Borrower's Receivables and Borrower's Books, at
Borrower's expense, no later than 90 days after the execution of this Agreement
and annually thereafter. Bank may audit Borrower's Collateral, including but not
limited to Borrower's Receivables and Borrower's Books at Bank's sole discretion
and without notification and authorization from Borrower.
(J) Borrower shall maintain at all times a Tangible Net Worth of no
less than $25,000,000.
6.3. Negative Covenants. Borrower will not do any of the following without
Bank's prior written consent:
(A) Grant, or permit any lien or security interest in the Collateral,
other than Permitted Liens.
(B) Convey, sell, lease, transfer or otherwise dispose of the
Collateral, except in the ordinary course of business.
(C) Create, incur, assume, or be liable for any indebtedness, except
for Permitted Indebtedness.
(D) Become an "investment company" or a company controlled by an
"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; fail to comply with the Federal Fair
Labor Standards Act or materially violate, in Bank's discretion, any other law
or regulation, or permit any of its subsidiaries to do so.
7. ADJUSTMENTS. If any Account Debtor asserts a claim for an Adjustment or
if Borrower breaches any of the representations, warranties or covenants set
forth in Section 6, Borrower will promptly advise Bank. Borrower will resell any
rejected, returned, returned, or recovered personal property, at Borrower's
expense, and pay proceeds to Bank.
8. SECURITY INTEREST. Borrower grants to Bank a continuing security
interest in all presently and later acquired Collateral to secure all
Obligations and the performance of each of Borrower's duties hereunder. Any
security interest will be a first priority security interest in the Collateral,
except as otherwise allowed herein with respect to Permitted Liens.
9. EVENTS OF DEFAULT. Any one or more of the following is an Event of
Default.
(A) Borrower fails to satisfy or pay any Obligation to Bank when due;
(B) Borrower files or has filed against it any Insolvency Proceedings
or any assignment for the benefit of creditors, or appointment of a receiver or
custodian for any of its assets;
(C) Borrower becomes insolvent or is generally not paying its debts
as they become due or is left with unreasonably small capital;
(D) Any involuntary lien, garnishment, attachment attaches to the
Financed Receivables or any other Collateral;
(E) Borrower breaches any covenant, agreement, warranty, or
representation;
(F) Borrower is in default under any document, instrument or
agreement evidencing any debt, obligation or liability in favor of Bank its
affiliates or vendors regardless of whether the debt, obligation or liability is
direct or indirect, primary or secondary, or fixed or contingent;
(G) An event of default occurs under any Guaranty of the Obligations
or any material provision of any Guaranty is not valid or enforceable or a
Guaranty is repudiated or terminated;
(H) A material default or Event of Default occurs under any agreement
between Borrower and any creditor of Borrower that signed a Subordination
Agreement with Bank;
(I) Any creditor that has signed a Subordination Agreement with Bank
breaches any terms of the Subordination Agreement; or
(J) (i) A material impairment in the perfection or priority of
the Bank's security interest in the Collateral; (ii) a material adverse change
in the business, operations, or conditions (financial or otherwise) of the
Borrower occurs; or (iii) a material impairment of the prospect of repayment of
any portion of the Advances occurs.
10. REMEDIES.
10.1. Remedies Upon Default. When an Event of Default occurs, (1) Bank may
stop financing Receivables or extending credit to Borrower; (2) at Bank's option
and on demand, all or a portion of the Obligations or, for an Event of Default
described in Section 9(B), automatically and without demand, are due and payable
in full; (3) Bank may 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; and (4) Bank may exercise all rights and remedies under
this Agreement and the law, including those of a secured party under the Code,
power of attorney rights in Section 5 for the Collateral, and the right to
collect, dispose of, sell, lease, use, and realize upon all Financed Receivables
and Collateral in any commercial manner. Borrower agrees that any notice of sale
required to be given to Borrower is deemed given if at least ten (10) days
before the sale may be held.
10.2. 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 guaranties held by Bank on which Borrower is
liable.
10.3. Default Rate. If any Obligation is not paid when due, the amount of such
unpaid Obligation bears interest at the Applicable Rate plus five percent until
the earlier of (a) payment in good funds or (b) entry of a final judgment when
the principal amount of any money judgment will accrue interest at the highest
rate allowed by law.
11. FEES, COSTS AND EXPENSES. The Borrower will pay on demand all fees,
costs and expenses (including attorneys' and professionals' fees with costs and
expenses) that Bank incurs from: (a) preparing, negotiating, administering, and
enforcing this Agreement or any related agreement, including any amendments,
waivers or consents, (b) any litigation or dispute relating to the Financed
Receivables, the Collateral, this Agreement or any other agreement, (c)
enforcing any rights against Borrower or any guarantor, or any Account Debtor,
(d) protecting or enforcing its interest in the Financed Receivables or other
Collateral, (e) collecting the Financed Receivables and the Obligations, and (f)
any bankruptcy case
or insolvency proceeding involving Borrower, any Financed Receivable, the
Collateral, any Account Debtor, or any Guarantor.
12. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER.
12.1. Choice of Law, Choice of Venue. This Agreement shall be governed by, and
construes in accordance with, the internal laws of the State of California,
without regard to principles of conflicts of law. Borrower accepts for itself
and in connection with its properties, unconditionally, the exclusive
jurisdiction of Santa Xxxxx County, State of California in any action, suit, or
proceeding of any kind against it which arises out of or by reason of this
Agreement. Borrower acknowledges that this Agreement has been applied for and
accepted in the State of California. Additionally, Borrower acknowledges that
any and all Advances hereunder shall be made from the Bank's offices in
California and any and all payments to be made by Borrower hereunder shall be
delivered to Bank's offices in California.
___________Borrower's Initials
12.2. JURY TRAIL WAIVER. BORROWER AND BANK EACH WAIVE THEIR RESPECTIVE RIGHTS
TO A JURY TRAIL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF ANY OF THIS
AGREEMENT OR ANY CONTEMPLATED TRANSACTIONS. EACH PARTY RECOGNIZES THAT THIS
WAIVER IS A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT. EACH PARTY
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH COUNSEL AND THAT IT KNOWINGLY
AND VOLUNTARILY WAIVES IT JURY TRAIL RIGHTS.
____________ Borrower's Initials
12.3. Counter Signature. This Agreement shall become effective only when it
shall have been executed by Borrower and Bank (provided, however, in no event
shall this Agreement become effective until signed by an officer of Bank in
California).
13. NOTICES. Notices or demands by either party about this Agreement must be
in writing and personally delivered or sent by an overnight delivery service, by
certified mail postage prepaid return receipt requested, or by FAX to the
addresses listed at the beginning of this Agreement. A party may change notice
address by written notice to the other party.
14. GENERAL PROVISIONS.
14.1. Successors and Assigns. This Agreement binds and is for the benefit of
successors and permitted assigns of each party. Borrower may not assign this
Agreement or any rights under it without Bank's prior written consent which may
be granted or withheld in Bank's discretion. Bank may, without the consent of or
notice to Borrower, sell, transfer, or grant participation in any part of Bank's
obligations, rights or benefits under this Agreement.
14.2. Indemnification. Borrower will indemnify, defend and hold harmless Bank
and its officers, employees, and agents against: (a) obligations, demands,
claims, and liabilities asserted by any other party in connection with the
transactions contemplated by this Agreement; and (b) losses or expenses
incurred, or paid by Bank from or consequential to transactions between Bank and
Borrower (including reasonable attorneys fees and expenses), except for losses
caused by Bank's gross negligence or willful misconduct.
14.3. Time of Essence. Time is of the essence for performance of all
obligations in this Agreement.
14.4. Severability of Provision. Each provision of this Agreement is severable
from every other provision in determining the enforceability of any provision.
14.5. Amendments in Writing, Integration. All amendments to this Agreement
must be in writing. This Agreement is the entire agreement about this subject
matter and supersedes prior negotiations or agreements.
14.6. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts and when executed
and delivered are one Agreement.
14.7. Survival. All covenants, representations and warranties made in this
Agreement continue in force while any Obligation remains outstanding. Borrower's
indemnification obligations survive until all statutes of limitations for
actions that may be brought against Bank have run.
14.8. Confidentiality. Bank will use the same degree of care handling
Borrower's confidential information that it uses for its own confidential
information, but may disclose information; (i) to its subsidiaries or affiliates
in connection with their business with Borrower, (ii) to prospective transferees
or purchasers of any interest in the Agreement, (iii) as required by law,
regulation, subpoena, or other order, (iv) as required in connection with an
examination or audit and (v) as it considers appropriate exercising the remedies
under this Agreement. Confidential information does not include information that
is either: (a) in the public domain or in Bank's possession when disclosed, or
becomes part of the public domain after disclosure to Bank; or (b) disclosed to
Bank by a third party, if Bank does not know that the third party is prohibited
from disclosing the information.
14.9. Other Agreements. This Agreement may not adversely affect Bank's rights
under any other document or agreement. If there is a conflict between this
Agreement and any agreement between Borrower and Bank, Bank may determine in its
sole discretion which provision applies. Borrower acknowledges that any security
agreements, liens and/or security interests securing payment of Borrower's
Obligations also secure Borrower's Obligations under this Agreement and are not
adversely affected by this Agreement. Additionally, (a) any Collateral under
other agreements or documents between Borrower and Bank secures Borrower's
Obligations under this Agreement and (b) a default by Borrower under this
Agreement is a default under agreements between Borrower and Bank.
BORROWER: TRANSGENOMIC, INC., a Delaware corporation
By /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------
Title VP, Secretary & Treasurer
------------------------------------------
BANK: SILICON VALLEY BANK
By /s/ Illegible
----------------------------------
Title Vice President
-----------------------------------
Effective Date: 6-17-2003
------------------------
EXHIBIT A
The Collateral consists of all of Borrower's right, title and interest
in and to the following:
All goods and equipment now owned or hereafter acquired, 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;
All inventory, now owned or hereafter acquired, including, without
limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is temporarily out of Borrower's custody or possession or in
transit and including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the
foregoing and any documents of title representing any of the above;
All contract rights and general intangibles (as such definitions may be
amended from time to time according to the Code), now owned or hereafter
acquired, including, without limitation, goodwill, trademarks, servicemarks,
trade styles, trade names, patents, patent applications, leases, license
agreements, franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, infringements, claims, computer programs, computer
discs, computer tapes, literature, reports, catalogs, design rights, income tax
refunds, payments of insurance and rights to payment of any kind;
All now existing and hereafter arising accounts, contract rights,
royalties, license rights and all other forms of obligations owing to Borrower
arising out of the sale or lease of goods, the licensing of technology or the
rendering of services by Borrower (as such definitions may be amended from time
to time according to the Code) whether or not earned by performance, and any and
all credit insurance, insurance (including refund) claims and proceeds,
guaranties, and other security therefor, as well as all merchandise returned to
or reclaimed by Borrower;
All documents, cash, deposit accounts, securities, securities
entitlements, securities accounts, investment property, financial assets,
letters of credit, letter of credit rights, certificates of deposit, instruments
and chattel paper and electronic chattel paper now owned or hereafter acquired
and Borrower's Books relating to the foregoing;
All copyright rights, copyright applications, copyright registrations
and like protections in each work of authorship and derivative work thereof,
whether published or unpublished, now owned or hereafter acquired; all trade
secret rights, including all rights to unpatented inventions, know-how,
operating manuals, license rights and agreements and confidential information,
now owned or hereafter acquired; all mask work or similar rights available for
the protection of semiconductor chips, now owned or hereafter acquired; all
claims for damages by way of any past, present and future infringement of any of
the foregoing; and
All Borrower's Books relating to the foregoing and any and all claims,
rights and interests in any of the above and all substitutions for, additions
and accessions to and proceeds thereof.
EXHIBIT "B"
SILICON VALLEY BANK
SPECIALTY FINANCE DIVISION
COMPLIANCE CERTIFICATE
I, as authorized officer of Transgenomic, Inc. ("Borrower") certify under the
Accounts Receivable Financing Agreement (the "Agreement") between Borrower and
Silicon Valley Bank ("Bank") as follows.
BORROWER REPRESENTS AND WARRANTS FOR EACH FINANCED RECEIVABLE:
Borrower is the owner of the Financed Receivable with legal right to
sell, transfer and assign such Financed Receivable;
The correct amount of the Financed Receivable is shown on the Invoice
Transmittal relating thereto and is not disputed;
Payment of any Financed Receivable is not contingent on any unperformed
obligation or contract and Borrower has fulfilled all obligations necessary to
its right to receive payment as of the Invoice Transmittal date;
Such Financed Receivable is based on an actual sale and delivery of
goods and/or services rendered, is due to Borrower, is not past due or in
default, has not been previously sold, assigned, transferred, or pledged and is
free of any liens, security interests and encumbrances, other than those created
by the Agreement;
There are no defenses, offsets, counterclaims or agreements for which
the Account Debtor may claim any deduction or discount;
Borrower reasonably believes that the Account Debtor is solvent and not
subject to any Insolvency Proceedings;
Bank has the right to endorse and/ or require Borrower to endorse all
payments received on Financed Receivables and all proceeds of other Collateral.
Additionally, Borrower represents and warrants as follows:
Borrower is duly existing and in good standing in its state of formation
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 Agreement has
been duly authorized, and does not conflict with Borrower's formations
documents, nor constitute an Event of Default under any material agreement by
which Borrower is bound. Borrower is not in default under any agreement to which
or by which it is bound.
Borrower has good title to the Collateral. All inventory is in all
material respects of good and marketable quality, free from material defects.
Borrower is not an "investment company" or a company "controlled" by an
"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 G, T and U of the Federal Reserve Board of Governors). Borrower has
complied with the Federal Fair Labor Standards Act. Borrower has not materially
violated, in Bank's discretion, any laws, ordinances or rules. None of
Borrower's properties or assets has been used by Borrower, to the best of
Borrower's knowledge, by previous persons, in disposing, producing, storing,
treating, or transporting any hazardous substance other than legally.
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.
Borrower has not filed or had filed against it Insolvency Proceedings
and does not anticipate any filing;
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
statement contained in the certificates or statement not misleading.
All representations and warranties in the Agreement are true and correct
in all material respects on this date.
Sincerely,
-----------------------------------------
-----------------------------------------
TITLE:
-----------------------------------
DATE:
-----------------------------------
EXHIBIT "C"
FORM OF LANDLORD'S CONSENT
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
SILICON VALLEY BANK
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: Loan Services
CONSENT TO REMOVAL OF PERSONAL PROPERTY
KNOW ALL PERSONS BY THESE PRESENTS:
(a) The undersigned has an interest as owner and landlord in the following
described real property (the "Real Property"): SEE ATTACHMENT 1 ATTACHED HERETO
FOR FULL LEGAL DESCRIPTION, commonly known as:
(b) Transgenomic, Inc., a Delaware corporation, ("Borrower"), has entered
into or will enter into an Accounts Receivable Financing Agreement with Silicon
Valley Bank ("Bank") dated as of the Effective Date (as defined therein) (as
amended and supplemented from time to time, the "Financing Agreement"). As a
condition to entering into the Financing Agreement, Bank requires that the
undersigned consent to the removal by Bank of the equipment and other assets
covered by the Financing Agreement (hereinafter called "Equipment") from the
Real Property.
NOW, THEREFORE, the undersigned consents to the placing of the Equipment on the
Real Property, and agrees with Bank as follows:
1. The undersigned waives and releases each and every right which
undersigned now has, under applicable law or by virtue of the lease for the Real
Property now in effect, to levy or distrain upon for rent, in arrears, in
advance or both, or to claim or assert title to the Equipment that is already on
said Real Property, or may hereafter be delivered or installed thereon.
2. The Equipment shall be considered to be personal property and
shall not be considered part of the Real Property regardless of whether or by
what means it is or may become attached or affixed to the Real Property.
3. The undersigned will permit Bank, or its agent or representative,
to enter upon the Real Property for the purpose of exercising any right they may
have under the terms of the Financing Agreement or otherwise, including, without
limitation, the right to remove the Equipment; provided, however, that if Bank,
in removing the Equipment damages any improvements of the undersigned on the
Real Property, Bank will, at its expense, cause same to be repaired.
4. This agreement shall be binding upon the heirs, successors and
assigns of the undersigned and shall inure to the benefit of each Bank and its
respective successors and assigns.
IN WITNESS WHEREOF, the undersigned has executed this instrument at _________,
this day of ___________, 200__.
By:
---------------------------------------
Title:
--------------------------------------
