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TBCC
LOAN AND SECURITY AGREEMENT
BORROWER: LIFECELL CORPORATION,
A DELAWARE CORPORATION
ADDRESS: XXX XXXXXXXXX XXX
XXXXXXXXXX, XXX XXXXXX 00000
DATE: DECEMBER 6, 1999
THIS LOAN AND SECURITY AGREEMENT is entered into as of the above date, between
the above borrower(s) (jointly and severally, the "Borrower"), having its chief
executive office and principal place of business at the address shown above, and
TRANSAMERICA BUSINESS CREDIT CORPORATION, a Delaware corporation, ("TBCC")
having its principal office at 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxx 00000 and having an office at 00000 Xxxxxxx Xxxx., Xxxxx 0000, Xxxxxxx
Xxxx, XX 00000. The Schedule to this Agreement (the "Schedule") being signed
concurrently is an integral part of this Agreement. (Definitions of certain
terms used in this Agreement are set forth in Section 9 below.) The parties
agree as follows:
1. Loans.
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1.1. Loans. TBCC, subject to the terms and condi-tions of this Agreement,
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agrees to make loans (the "Loans") to Borrower, from time to time during the
period from the date of this Agreement to the Maturity Date set forth in the
Schedule, at Borrower's request, in an aggregate principal amount at any one
time outstanding not to exceed the Credit Limit shown on the Schedule (the
"Credit Limit"). If at any time the total outstanding Loans and other monetary
Obligations exceed the Credit Limit, Borrower shall repay the excess immediately
without demand. Borrower shall use the proceeds of all Loans solely for lawful
general business purposes.
1.2. Due Date. The Loans, all accrued interest and all other monetary
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Obligations shall be payable in full on the Maturity Date. Borrower may
bor-row, repay and reborrow Loans (other than any Term Loans), in whole or in
part, in accordance with the terms of this Agreement.
1.3. Loan Account. TBCC shall maintain an ac-count on its books in the
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name of Borrower (the "Loan Account"). All Loans and advances made by TBCC to
Borrower or for Borrower's account and all other monetary Obligations will be
Charged to the Loan Account. All amounts received by TBCC from Borrower or for
Borrower's account will be credited to the Loan Account. TBCC will send Borrower
a monthly statement reflecting the activity in the Loan Account, and each such
monthly statement shall be an account stated between Borrower and TBCC and shall
be final, conclusive and binding absent manifest error.
1.4. Collection of Receivables. Subject to the Streamline Agreement of
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even date herewith between the Borrower and TBCC, Borrower shall remit to TBCC
all Collections including all checks, drafts and other documents and instruments
evidencing remittances in payment (collectively referred to as "Items of
Payment") within one Business Day after receipt, in the same form as received,
with any necessary indorsements. For purposes of calculating interest due to
TBCC, credit will be given for Collections and all other proceeds of Collateral
and other payments to TBCC three Business Days after receipt of cleared funds.
For all purposes of this Agreement any cleared funds received by TBCC later than
10:00 a.m. (California time) on any Business Day shall be deemed to have been
received on the following Business Day and any applicable interest or fee shall
continue to accrue. Borrower's Loan Account will be credited only with the net
amounts actually received in payment of Receivables, and such payments shall be
credited to the Obligations in such order as TBCC shall determine in its
discretion. Pending delivery to TBCC, Borrower will not commingle any Items of
Payment with any of its other funds or property, but will segregate them from
the other assets of Borrower and will hold them in trust and for the account and
as the property of TBCC. Borrower hereby agrees to endorse any Items of Payment
upon the re-quest of TBCC.
* SUBJECT TO THE STREAMLINE AGREEMENT OF EVEN DATE HEREWITH BETWEEN THE BORROWER
AND TBCC,
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TBCC LOAN AND SECURITY AGREEMENT
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1.6. Term of Revolving Loan Facility and Term of Agreement.
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(a) Term of Revolving Loan Facility. The period during which Revolving Loans
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(as defined in the Schedule) will be made (the "Revolving Loan Period") shall be
from the date of this Agreement to the Revolving Loan Maturity Date set forth in
the Schedule, unless sooner terminated in accordance with the terms of this
Agreement, provided that the Revolving Loan Maturity Date shall automatically be
extended for successive addi-tional terms of one year each, unless one party
gives written notice to the other, not less than thirty (30)days prior to the
next Revolving Loan Maturity Date, that such party elects to terminate the
Revolving Loan Period effective on the next Revolving Loan Maturity Date. On and
after the Revolving Loan Maturity Date or any earlier termination of this
Agreement, no further Revolving Loans will be made. On the Revolving Loan
Maturity Date or on any earlier termination of this Agreement, Borrower shall
pay in full all outstanding Revolving Loans.
* thirty (30)
(b) Early Termination of Revolving Loan Facility at Borrower's Option. The
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Revolving Loan Period may be termi-nated prior to the Revolving Loan Maturity
Date by Borrower, effective three business days after written notice of
termination is given by Borrower to TBCC.
(c) Term of Agreement. The term of this Agreement shall be from the date
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of this Agreement to the later of the following (the "Maturity Date"): (i) the
termination of the Revolving Loan Period, or (ii) the date the last installment
of principal on the Term Loan is due. On the Maturity Date or on any earlier
termination of this Agreement Borrower shall pay in full all Obligations, and
notwithstanding any termination of this Agreement all of TBCC's security
interests and all of TBCC's other rights and remedies shall continue in full
force and effect until payment and performance in full of all Obligations.
(d) Early Termination of Agreement. This Agreement may be termi-nated
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prior to the Maturity Date as follows: (i) by Borrower, effective three
business days after written notice of termination is given to TBCC; or (ii) by
TBCC at any time after the occurrence of an Event of Default, without notice,
effective immediately.
(e) Termination Fee. If the Revolving Loan Period is termi-nated by
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Borrower under Section 1.6(b), or if this Agreement is termi-nated by Borrower
or by TBCC under Section 1.6(d), then Borrower shall pay to TBCC a termination
fee (the "Termination Fee") in the amount set forth on the Schedule, which
Termination Fee shall be payable on the date of termination.
(f) Payment of Obligations. Notwithstanding anything herein to the contrary,
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Borrower shall have no right to terminate this Agreement at any time that any
prin-cipal of, or interest on any of the Loans or any other mone-tary
Obligations are outstanding, except upon prepayment of all Obligations and the
satisfaction of all other conditions set forth in the Loan Documents.
1.7. Payment Procedures. Borrower hereby authorizes TBCC to charge the
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Loan Account with the amount of all interest, fees, expenses and other payments
to be made hereunder and under the other Loan Documents. TBCC may, but shall
not be obligated to, discharge Borrower's payment obligations hereunder by so
charging the Loan Account. Whenever any payment to be made hereunder is due on
a day that is not a Business Day, the payment may be made on the next succeeding
Business Day and such extension of time shall be included in the compu-tation of
the amount of interest due.
1.8. Conditions to Initial Loan. The obligation of TBCC to make the
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initial Loan is subject to the satisfaction of the following conditions prior to
or concurrent with such initial Loan, and Borrower shall cause all such
conditions to be satisfied by the Closing Deadline set forth in the Schedule:
(a) Except for the filing of termination statements under the Code by the
existing lender to Borrower whose loans are being repaid with the Loan proceeds,
no consent or authorization of, filing with or other act by or in respect of any
Governmental Authority or any other Person is required in connection, with the
execution, delivery, performance, validity or enforceability of this Agreement,
or the other Loan Documents or the consummation of the transactions contemplated
hereby or thereby or the continuing operations of the Borrower following the
consummation of such transactions.
(b) TBCC and its counsel shall have performed (i) a review satisfactory to
TBCC of all of the Material Contracts and other assets of the Borrower, the
financial condition of the Borrower, including all of its tax, litigation,
environmental and other potential contingent liabilities, and the corporate and
capital structure of the Borrower and (ii) a pre-closing audit and collateral
review, in each case with results satisfactory to TBCC.
(c) TBCC shall have received the following, each dated the date of the
initial Loan or as of an earlier date acceptable to TBCC, in form and substance
satisfactory to TBCC and its counsel: (i) a Depository Account Agreement (as
TBCC shall designate), duly executed by the Borrower and its bank on TBCC's
standard form; (ii) acknowledgment copies of Uniform Commercial Code financing
statements (naming TBCC as secured party and the Borrower as debtor), duly filed
in all jurisdictions that TBCC deems necessary or desirable to perfect and
protect the Liens created hereunder, and evidence that all other filings,
registrations and recordings have been made in the appropriate governmental
offices, and all other action has been taken, which shall be necessary to
create, in favor of TBCC, a perfected first priority Lien on the Collateral;
TBCC LOAN AND SECURITY AGREEMENT
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(iii) the opinion of counsel for the Borrower covering such matters incident to
the transactions contemplated by this Agreement as TBCC may specify in its
discretion; (iv) certified copies of all policies of insurance required by this
Agreement and the other Loan Documents, together with loss payee endorsements
for all such policies naming TBCC as lender loss payee and an additional
insured; (v) copies of the Borrower's articles or certificate of incorporation,
certified as true, correct and complete by the secretary of state of Borrower's
state of incorporation within 45 days of the date hereof; (vi) copies of the
bylaws of the Borrower and a copy of the resolutions of the Board of Directors
of the Borrower authorizing the execution, delivery and performance of this
Agreement, the other Loan Documents, and the transactions contemplated hereby
and thereby, attached to which is a certificate of the Secretary or an Assistant
Secretary of the Borrower certifying (A) that such copies of the bylaws and
resolutions are true, complete and accurate copies thereof, have not been
amended or modified since the date of such certificate and are in full force and
effect and (B) the incumbency, names and true signatures of the officers of the
Borrower; (vii) a good standing certificate from the Secretary of State of
Borrower's state of incorporation and each state in which the Borrower is
qualified as a foreign corporation, each dated within ten days of the date
hereof; (viii) the additional documents and agreements, if any, listed in the
Schedule; and (ix) such other agreements and instruments as TBCC deems necessary
in its sole and absolute discretion in connection with the transactions
contemplated hereby.
1.9. Conditions to Lending. The obligation of TBCC to make any Loan is
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subject to the satisfac-tion of the following conditions precedent:
(a) There shall be no pending or, to the knowledge of Borrower after due
inquiry, threatened litigation, proceeding, inquiry or other action relating to
this Agreement, or any other Loan Document, or which could be expected to have a
Material Adverse Effect in the judgment of TBCC;
(b) Borrower shall be in compliance with all Requirements of Law and
Material Contracts, other than such noncompliance that could not have a Material
Adverse Effect;
(c) The Liens in favor of TBCC shall have been duly perfected and shall
constitute first priority Liens, except for Permitted Liens;
(d) All representations and warranties contained in this Agreement and the
other Loan Documents shall be true and correct on and as of the date of such
Loan as if then made, other than representations and warranties that expressly
re-late solely to an earlier date, in which case they shall have been true and
correct as of such earlier date;
(e) No Default or Event of Default shall have occurred and be continuing or
would result from the making of the requested Loan as of the date of such
request; and
(f) No Material Adverse Effect shall have occurred.
2. INTEREST AND FEES.
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2.1. Interest. Borrower shall pay TBCC interest on all outstanding Loans
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and other monetary Obligations, at the interest rate set forth in the Schedule.
Interest shall be payable monthly in arrears on the first Business Day of each
month, and on the Maturity Date. Following the occur-rence and during the
continuance of any Event of Default, the interest rate applicable to all
Obligations shall be in-creased by two percent per annum.
2.2. Fees. Borrower shall pay TBCC the fees set forth in the Schedule.
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2.3. Calculations. All interest and fees under this Agreement shall be
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calculated on the basis of a year of 360 days for the actual number of days
elapsed in the period for which such interest or fees are payable.
2.4. Taxes. Any and all payments by Borrower under this Agreement or any
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other Loan Document shall be made free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions, charges or
with-holdings and penalties, interest and all other liabilities with respect
thereto, excluding in the case of TBCC, taxes imposed on its net income and
franchise taxes imposed on it by the jurisdiction under the laws of which TBCC
is organized or any political subdivision thereof.
3. Security.
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3.1. Grant of Security Interest. To secure the payment and performance
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when due of all of the Obligations, Borrower hereby grants to TBCC a security
interest in all of its present and future Receivables, Investment Property,
Inventory, Equipment, Other Property, and other Collateral, wherever located.
3.2. Other Liens; Location of Collateral. Borrower repre-sents, warrants
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and covenants that all of the Collateral is, and will at all times continue to
be, free and clear of all Liens, other than Permitted Liens and Liens in favor
of TBCC. All Collateral is and will continue to be maintained at the locations
shown on the Schedule.
3.3. Receivables.
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(a) Schedules and Other Actions. Subject to the Streamline Agreement, as
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may from time to time be requested by TBCC, Borrower shall execute and deliver
to TBCC written schedules of Receivables (but the failure to execute or deliver
any schedule shall not affect or limit TBCC's security interest in all
Receivables). On TBCC's request, Borrower shall also furnish to TBCC copies of
invoices to customers and shipping and delivery receipts. Borrower shall deliver
to TBCC the originals of all letters of credit, notes, and instruments in its
favor and such endorsements or assign-ments as TBCC may reasonably request and,
upon the request of TBCC, Borrower shall deliver to TBCC all certificated
securities with respect to any Investment Property, with all necessary
indorsements, and obtain such account control agreements with securities
intermediaries and take such other action with respect to any Investment
Property, as TBCC shall request, in form and substance satisfactory to TBCC.
Upon request of TBCC Borrower additionally shall obtain consents from any letter
of credit issuers with respect to the assignment to TBCC of any letter of credit
proceeds
TBCC LOAN AND SECURITY AGREEMENT
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* Subject to the Streamline Agreement, as
(b) Records, Collections. At the request of TBCC, Borrower shall report all
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cus-tomer credits to TBCC, on the regular reports to TBCC in the form from time
to time specified by TBCC. * Borrower shall notify TBCC of all re-turns and
recoveries of merchandise and of all claims as-serted with respect to
merchandise, on its regular reports to TBCC. * Borrower shall not settle or
adjust any dis-pute or claim, or grant any discount, credit or allowance or
accept any return of merhandise, except in the ordinary course of its business,
without TBCC's prior written consent.
* At the request of TBCC,
3.4. Inventory. Borrower shall maintain full, accurate and complete
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records respecting the Inventory describing the kind, type and quantity of the
Inventory and Borrower's cost therefor, withdrawals therefrom and addi-tions
thereto, including a perpetual inventory for work in process and finished goods.
3.5. Equipment. Borrower shall at all times keep correct and accurate
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records itemizing and describing the location, kind, type, age and condition of
the Equipment, Borrower's cost therefor and accumulated depreciation thereof and
re-tirements, sales, or other dispositions thereof. Borrower shall keep all of
its Equipment in a satisfactory state of re-pair and satisfactory operating
condition in accordance with industry standards, ordinary wear and tear
excepted. No Equipment shall be annexed or affixed to or become part of any
realty, unless the owner of the realty has executed and delivered a Landlord
Waiver in such form as TBCC shall specify. Where Borrower is permitted to
dispose of any Equipment under this Agreement or by any consent thereto
hereafter given by TBCC, Borrower shall do so at arm's length, in good faith and
by obtaining the max-imum amount of recovery practicable therefor and without
impairing the operating integrity or value of the remaining Equipment.
3.6. Investment Property. Borrower shall have the right to retain all
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Investment Property payments and distributions, unless and until a Default or an
Event of Default has occurred. If a Default or an Event of Default exists,
Borrower shall hold all payments on, and proceeds of, and distributions with
respect to, Investment Property in trust for TBCC, and Borrower shall deliver
all such payments, proceeds and distributions to TBCC, immediately upon receipt,
in their original form, duly endorsed, to be applied to the Obligations in such
order as TBCC shall determine. Upon the request of TBCC, any such distributions
and payments with respect to any Investment Property held in any securities
account shall be held and retained in such securities account as part of the
Collateral.
3.7 Further Assurances. Borrower will perform any and all steps that TBCC
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may reasonably request to perfect TBCC's security interests in the Collateral,
includ-ing, without limitation, executing financing and continuation statements
in form and substance satisfactory to TBCC and returning such financing
statements to TBCC at the direction of TBCC for filing and other appropriate
handling. TBCC is hereby authorized by Borrower to sign Borrower's name or file
any financing statements or similar documents or instruments covering the
Collateral whether or not Borrower's signature appears thereon. Borrower
agrees, from time to time, at TBCC's request, to file notices of Liens,
financing statements, similar documents or instruments, and amend-ments,
renewals and continuations thereof, and cooperate with TBCC, in connection with
the continued perfec-tion and protection of the Collateral. If any Collateral
is in the possession or control of any Person other than a public warehouseman
where the warehouse receipt is in the name of or held by TBCC, Borrower shall
notify such Person of TBCC's security interest therein and, upon request,
instruct such Person or Persons to hold all such Collateral for the account of
TBCC and subject to TBCC's instructions. If so requested by TBCC, Borrower will
deliver to TBCC xxxx-house receipts covering any Collateral located in
warehouses showing TBCC as the beneficiary thereof and will also cause the
warehouseman to execute and deliver such agreements as TBCC may request relating
to waivers of liens by such warehouseman and the release of the Inventory to
TBCC on its demand. Borrower shall defend the Collateral against all claims and
demands of all Persons.
* and returning such financial statements to TBCC at the direction of TCBB
for filing and other appropriate handling
3.8. Power of Attorney. Borrower hereby appoints and constitutes TBCC as
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Borrower's attorney-in-fact (i) to request at any time from account debtors
verification of in-formation concerning Receivables and the amount owing
thereon, (ii) upon the occurrence and during the continu-ance of an Event of
Default, to convey any item of Collateral to any purchaser thereof, (iii) to
give or sign Borrower's name to any notices or statements necessary or desirable
to create or continue the Lien on any Collateral granted hereunder, (iv) to
execute and deliver to any securities intermediary or other Person any
entitlement order, account control agreement or other notice, document or
instrument with respect to any Investment Property, and (v) to make any payment
or take any act necessary or desirable to protect or preserve any Collateral.
TBCC's authority hereunder shall include, without limitation, the authority to
execute and give receipt for any certificate of ownership or any document,
transfer ti-tle to any item of Collateral and take any other actions aris-ing
from or incident to the powers granted to TBCC under this Agreement. This power
of attorney is coupled with an interest and is irrevocable.
4. Representations and Warranties of Borrower. Borrower represents and
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warrants as follows:
4.1. Organization, Good Standing and Qualification. Borrower (i) is a
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corporation duly organized, validly exist-ing and in good standing under the
laws of the State set forth above, (ii) has the corporate power and authority to
own its properties and assets and to transact the businesses in which it is
TBCC LOAN AND SECURITY AGREEMENT
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engaged and (iii) is duly qualified, authorized to do business and in good
standing in each jurisdiction where it is engaged in business, except to the
extent that the failure to so qualify or be in good standing would not have a
Material Adverse Effect.
4.2. Locations of Offices, Records and Collateral. The address of the
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principal place of business and chief executive office of Borrower is, and the
books and records of Borrower and all of its chattel paper and records relating
to Collateral are maintained exclusively in the possession of Borrower at, the
address of Borrower specified in the heading of this Agreement. Borrower has
places of business, and Collateral is located, only at such address and at the
addresses set forth in the Schedule and at any additional locations reported to
TBCC as provided in Section 5.8(c) as to which TBCC has taken all necessary
action to perfect and protect its security interests in the Collateral at any
such locations.
4.3. Authority. Borrower has the requisite corporate power and authority to
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execute, deliver and perform its obli-gations under each of the Loan Documents.
All corporate action necessary for the execution, delivery and performance by
Borrower of the Loan Documents has been taken.
4.4. Enforceability. This Agreement is, and, when exe-cuted and delivered,
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each other Loan Document will be, the legal, valid and binding obligation of
Borrower enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency or similar laws affect-ing creditors'
rights generally and general principles of eq-uity.
4.5. No Conflict. The execution, delivery and perfor-xxxxx of each Loan
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Document by Borrower does not and will not contravene (i) any of the Governing
Documents, (ii) any Requirement of Law or (iii) any Material Contract and will
not result in the imposition of any Liens other than in favor of TBCC.
4.6. Consents and Filings. No consent, authorization or approval of, or
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filing with or other act by, any shareholders of Borrower or any Governmental
Authority or other Person is required in connection with the execution,
delivery, per-formance, validity or enforceability of this Agreement or any
other Loan Document, the consummation of the trans-actions contemplated hereby
or thereby or the continuing operations of Borrower following such consummation,
except (i) those that have been obtained or made, (ii) the filing of financing
statements under the Uniform Commercial Code and (iii) any necessary filings
with the U.S. Copyright Office and the U.S. Patent and Trademark Office.
4.7. Solvency. Borrower is Solvent and will be Solvent upon the completion
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of all transactions contemplated to oc-cur on or before the date of this
Agreement (including, without limitation, the Loans to be made on the date of
this Agreement).
4.8. Financial Data. Borrower has provided to TBCC complete and accurate
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Financial Statements, which have been prepared in accordance with GAAP
consis-tently applied throughout the periods involved and fairly present the
financial position and results of operations of Borrower for each of the periods
covered, subject, in the case of any quarterly financial statements, to normal
year end adjustments and the absence of notes. Borrower has no Contingent
Obligation or liability for taxes, unrealized losses, unusual forward or
long-term commitments or long-term leases, which is not reflected in such
Financial Statements or the footnotes thereto. Since the last date covered by
such Financial Statements, there has been no sale, transfer or other disposition
by Borrower of any mate-rial part of its business or property and no purchase or
other acquisition of any business or property (including any capi-tal stock of
any other Person) material in relation to the fi-nancial condition of Borrower
at said date. Since said date, (i) there has been no change, occurrence,
development or event which has had or could reasonably be expected to have a
Material Adverse Effect and (ii) none of the capital stock of Borrower has been
redeemed, retired, purchased or other-wise acquired for value by Borrower.
4.9. Accuracy and Completeness of Information. All data, reports and
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information previously, now or hereafter furnished by or on behalf of Borrower
to TBCC or the Auditors are or will be true and accurate in all material
respects on the date as of which such data, reports and in-formation are dated
or certified, and not incomplete by omit-ting to state any material fact
necessary to make such data, reports and information not materially misleading
at such time. There are no facts now known to Borrower which in-dividually or in
the aggregate would reasonably be expected to have a Material Adverse Effect and
which have not been disclosed in writing to TBCC.
4.10. No Joint Ventures, Partnerships or Subsidiaries. Borrower is not
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engaged in any joint venture or partnership with any other Person. Borrower has
no Subsidiaries.
4.11. Corporate and Trade Name. During the past five years, Borrower has
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not been known by or used any other corporate, trade or fictitious name except
for its name as set forth on the signature page of this Agreement and the other
names specified in the Schedule.
4.12. No Actual or Pending Material Modification of Business. There exists
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no actual or, to the best of Borrower's knowledge after due inquiry, threatened
termina-tion, cancellation or limitation of, or any modification or change in
the business relationship of Borrower with any customer or group of customers
whose purchases individu-ally or in the aggregate are material to the operation
of Borrower's business or with any material supplier.
4.13. No Broker's or Finder's Fees. No broker or finder brought about this
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Agreement or the Loans. No broker's or finder's fees or commissions will be
payable by Borrower to any Person in connection with the transactions
contem-plated by this Agreement.
4.14. Taxes and Tax Returns. Borrower has properly completed and timely
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filed all income tax returns it is re-quired to file. The information filed is
complete and accu-rate in all material respects. All deductions taken in such
TBCC LOAN AND SECURITY AGREEMENT
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income tax returns are appropriate and in accordance with applicable laws and
regulations, except deductions that may have been disallowed but are being
challenged in good faith and for which adequate reserves have been made in
accor-dance with GAAP. All taxes, assessments, fees and other governmental
charges for periods beginning prior to the date of this Agreement have been
timely paid (or, if not yet due, adequate reserves therefor have been
established in accordance with GAAP) and Borrower has no liability for taxes in
excess of the amounts so paid or reserves so established. No deficiencies for
taxes have been claimed, proposed or assessed by any taxing or other
Governmental Authority against Borrower and no no-xxxx of any tax Lien has been
filed. There are no pending or threatened audits, investigations or claims for
or relating to any liability for taxes and there are no matters under
discus-sion with any Governmental Authority which could result in an additional
liability for taxes. No extension of a statute of limitations relating to taxes,
assessments, fees or other governmental charges is in effect with respect to
Borrower. Borrower is not a party to and does not have any obligations under any
written tax sharing agreement or agreement regarding payments in lieu of taxes.
4.15. No Judgments or Litigation. Except as set forth in the Schedule, no
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judgments, orders, writs or decrees are outstanding against Borrower, nor is
there now pending or, to the knowledge of Borrower after due inquiry, threatened
litigation, contested claim, investiga-tion, arbitration, or governmental
proceeding by or against Borrower that (i) could individually or in the
aggregate be likely in the reasonable business judgment of TBCC to have a
Material Adverse Effect or (ii) purports to affect the legality, validity or
enforceability of this Agreement, any other Loan Document or the consummation of
the transactions contemplated hereby or thereby.
4.16. Investments; Contracts. Borrower (i) has not committed to make any
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Investment; (ii) is not a party to any indenture, agreement, contract,
instrument or lease or subject to any charter, by-law or other corporate
restriction or any injunction, order, restriction or decree, which would
materially and adversely affect its business, operations, as-sets or financial
condition; (iii) is not a party to any take or pay contract as to which it is
the purchaser; or (iv) has no material contingent or long-term liability,
including management contracts (excluding employment contracts of full-time
individual officers or employees), which could have a Material Adverse Effect.
4.17. No Defaults; Legal Compliance. Borrower is not in default under any
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term of any Material Contract or in vio-lation of any Requirement of Law, nor is
Borrower subject to any investigation with respect to a claimed violation of any
Requirement of Law.
4.18. Rights in Collateral; Priority of Liens. All Collateral is owned or
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leased by Borrower, free and clear of any and all Liens in favor of third
parties, other than Permitted Liens. The Liens granted to TBCC pur-suant to the
Loan Documents constitute valid, enforceable and perfected first-priority Liens
on the Collateral, except for Permitted Liens.
4.19. Intellectual Property. Set forth in the written Representations and
----------------------
Warranties of Borrower previously delivered to TBCC is a complete and accurate
list of all patents, trademarks, trade names, service marks and copyrights
(registered and unregistered), and all applications therefor and licenses
thereof, of Borrower. Borrower owns or licenses all material patents,
trademarks, service-marks, logos, trade-names, trade secrets, know-how,
copyrights, or licenses and other rights with respect to any of the foregoing,
which are necessary or advisable for the operation of its business as presently
conducted or proposed to be conducted. To the best of its knowledge after due
inquiry, Borrower has not in-fringed any patent, trademark, service-xxxx,
tradename, copyright, license or other right owned by any other Person by the
sale or use of any product, process, method, sub-stance, part or other material
presently contemplated to be sold or used, where such sale or use would
reasonably be expected to have a Material Adverse Effect and no claim or
litigation is pending, or to the best of Borrower's knowl-edge, threatened
against or affecting Borrower that contests its right to sell or use any such
product, process, method, substance, part or other material.
4.20. Labor Matters. There are no existing or threatened strikes, lockouts
-------------
or other disputes relating to any collective bargaining or similar agreement to
which Borrower is a party which would, individually or in the aggregate, be
rea-sonably likely to have a Material Adverse Effect.
4.21. Licenses and Permits. Borrower has obtained and holds in full force
---------------------
and effect, all franchises, licenses, leases, permits, certificates,
authorizations, qualifications, ease-ments, rights of way and other rights and
approvals which are necessary or advisable for the operation of its business as
presently conducted and as proposed to be conducted, except where the failure
to possess any of the foregoing (individually or in the aggregate) would not
have a Material Adverse Effect.
4.22. Government Regulation. Borrower is not subject to regulation under
----------------------
the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, the Investment Company Act of 1940, or any other
Requirement of Law that limits its ability to in-cur indebtedness or its ability
to consummate the transac-tions contemplated by this Agreement and the other
Loan Documents.
4.23. Business and Properties. The business of Borrower is not affected by
-----------------------
any fire, explosion, accident, strike, lock-out or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy or other
casu-alty (whether or not covered by insurance) that could reason-ably be
expected to have a Material Adverse Effect.
TBCC LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
-6-
4.24. Affiliate Transactions. Borrower is not a party to or bound by any
-----------------------
agreement or arrangement (whether oral or written) to which any Affiliate of
Borrower is a party except (i) in the ordinary course of and pursuant to the
reasonable requirements of the business of Borrower and (ii) upon fair and
reasonable terms no less favorable to Borrower than it could obtain in a
comparable arm's-length transaction with an unaffiliated Person.
4.25. Survival of Representations. All representations made by Borrower in
---------------------------
this Agreement and in any other Loan Document executed and delivered by it in
connection here-with shall survive the execution and delivery hereof and thereof
and the closing of the transactions contemplated hereby and thereby.
5. AFFIRMATIVE COVENANTS OF THE BORROWER. Until termination of this Agreement
--------------------------------------
and payment and satis-faction of all Obligations:
5.1. Corporate Existence. Borrower shall (i) maintain its corporate
--------------------
existence, (ii) maintain in full force and effect all material licenses, bonds,
franchises, leases, trademarks, qualifications and authorizations to do
business, and all ma-terial patents, contracts and other rights necessary or
advis-able to the profitable conduct of its business, and (iii) continue in, and
limit its operations to, the same lines of business as presently conducted by
it.
5.2. Maintenance of Property. Borrower shall keep all property useful and
-------------------------
necessary to its business in good work-ing order and condition (ordinary wear
and tear excepted) in accordance with its past operating practices.
5.3. Affiliate Transactions. Borrower shall conduct trans-actions with any
-----------------------
of its Affiliates on an arm's-length basis or other basis no less favorable to
Borrower and which are ap-proved by the board of directors of Borrower.
5.4. Taxes. Borrower shall pay when due (i) all tax as-sessments, and other
-----
governmental charges and levies im-posed against it or any of its property and
(ii) all lawful claims that, if unpaid, might by law become a Lien upon its
property; provided, however, that, unless such tax as-sessment, charge, levy or
claim has become a Lien on any of the property of Borrower, it need not be paid
if it is being contested in good faith, by appropriate proceedings dili-gently
conducted and an adequate reserve or other appropriate provision shall have been
made therefor as required in accor-dance with GAAP.
5.5. Requirements of Law. Borrower shall comply with all Requirements of
--------------------
Law applicable to it, including, without limitation, all applicable Federal,
State, local or foreign laws and regulations, including, without limitation,
those relating to environmental matters, employee matters, the Employee
Retirement Income Security Act of 1974, and the collection, payment and deposit
of employees' income, un-employment and social security taxes, provided that
Borrower shall not be deemed in violation hereof if Borrower's failure to comply
with any of the foregoing would not require more than $50,000 to cure the same.
5.6. Insurance. Borrower shall maintain public liability insurance,
---------
business interruption insurance, third party prop-erty damage insurance and
replacement value insurance on its assets (including the Collateral) under such
policies of insurance, with such insurance companies, in such amounts and
covering such risks as are at all times satisfactory to TBCC in its commercially
reasonable judgment, all of which policies covering the Collateral shall name
TBCC as an additional insured and lender loss payee in case of loss, and contain
other provisions as TBCC may reasonably require to protect fully TBCC's interest
in the Collateral and any payments to be made under such policies
* EXCEPT THAT, PROVIDED NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED, TBCC SHALL
RELEASE TO THE BORROWER INSURANCE PROCEEDS WITH RESPECT TO EQUIPMENT TOTALING
LESS THAN $500,000, PROVIDED THAT PROCEDURES, ACCEPTABLE TO TBCC, ARE
--------
ESTABLISHED FOR THE USE AND DISBURSEMENT OF SUCH PROCEEDS FOR THE REPLACEMENT OF
THE EQUIPMENT WITH RESPECT TO WHICH THE INSURANCE PROCEEDS WERE PAID
5.7. Books and Records; Inspections. Borrower shall (i) maintain books and
------------------------------
records (including computer records) pertaining to the Collateral in such
detail, form and scope as is consistent with good business practice and (ii)
provide TBCC and its agents access to the premises of Borrower at any time and
from time to time, during normal business hours and upon reasonable notice under
the cir-cumstances, and at any time on and after the occurrence of a Default or
Event of Default, for the purposes of (A) inspecting and verifying the
Collateral, (B) inspecting and copying (at Borrower's expense) any and all
records per-taining thereto, and (C) discussing the affairs, finances and
business of Borrower with any officer, employee or director of Borrower or with
the Auditors. Borrower shall reimburse TBCC for the reasonable travel and
related expenses of TBCC's employees or, at TBCC's option, of such outside
accountants or examiners as may be retained by TBCC to verify or inspect
Collateral, records or documents of Borrower on a regular basis or for a special
inspection if TBCC deems the same appropriate. If TBCC's own employees are used,
Borrower shall also pay therefor $600 per person per day (or such other amount
as shall repre-sent TBCC's then current standard charge for the same), or, if
outside examiners or accountants are used, Borrower shall also pay TBCC such sum
as TBCC may be obligated to pay as fees therefor.
5.8. Notification Requirements. Borrower shall give TBCC the following
-------------------------
notices and other documents:
(a) Notice of Defaults. Borrower shall give TBCC written notice of any
-------------------
Default or Event of Default within two Business Days after becoming aware of the
same.
(b) Proceedings or Adverse Changes. Borrower shall give TBCC written notice
-------------------------------
of any of the following, promptly, and in any event within five Business Days
after Borrower becomes aware of any of the following: (i) any proceeding being
instituted or threatened by or against it in any federal, state, local or
foreign court or before any com-mission or other regulatory body involving a
TBCC LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
-7-
sum, together with the sum involved in all other similar proceedings, in excess
of * in the aggregate, (ii) any order, judgment or decree being entered
against Borrower or any of its prop-erties or assets involving a sum, together
with the sum of all other orders, judgments or decrees, in excess of * in
the aggregate, and (iii) any actual or prospective change, de-velopment or event
which has had or could reasonably be expected to have a Material Adverse Effect.
* $200,000
(c) Change of Name or Chief Executive Office; Opening Additional Places of
-----------------------------------------------------------------------
Business. Borrower shall give TBCC at least 30 days prior written notice of any
--------
change of Borrower's corporate name or its chief execu-tive office or of the
opening of any additional place of busi-ness.
(d) Casualty Loss. Borrower shall (i) provide written notice to TBCC,
--------------
within ten Business Days, of any material damage to, the destruction of or any
other material loss to any asset or property owned or used by Borrower other
than any such asset or property with a net book value (individually or in the
aggregate) less than * or any condemnation, confiscation or other taking,
in whole or in part, or any event that otherwise diminishes so as to render
impracticable or unreasonable the use of such asset or prop-erty owned or used
by Borrower together with the amount of the damage, destruction, loss or
diminution in value and (ii) diligently file and prosecute its claim or claims
for any award or payment in connection with any of the forego-ing.
* $100,000
(e) Intellectual Property. Borrower shall give TBCC written
----------------------
notice, on a quarterly basis, of any copyright registration made by it, any
rights Borrower may obtain to any copyrightable works, new trademarks or any new
patentable inventions, and of any renewal or extension of any trademark
registration, or if it shall otherwise become entitled to the benefit of any
patent or patent application or trademark or trademark application. (f) Deposit
Accounts and Security Accounts. Borrower shall promptly give TBCC written notice
of the opening of any new bank account or other deposit account, and any new
securities account.
* , ON A QUARTERLY BASIS,
5.9. Qualify to Transact Business. Borrower shall qualify to transact
-------------------------------
business as a foreign corporation in each jurisdic-tion where the nature or
extent of its business or the owner-ship of its property requires it to be so
qualified or autho-rized and where failure to qualify or be authorized would
have a Material Adverse Effect.
5.10. Financial Reporting. Borrower shall timely deliver to TBCC the
--------------------
following financial information: the information set forth in the Schedule, and,
when requested by TBCC in its good-faith judgment, any further in-formation
respecting Borrower or any Collateral. Borrower authorizes TBCC to communicate
directly with its officers, employees and Auditors and to examine and make
abstracts from its books and records. Borrower authorizes its Auditors to
disclose to TBCC any and all financial statements, work papers and other
information of any kind that they may have with respect to Borrower and its
busi-ness and financial and other affairs. Borrower shall deliver a letter
addressed to the Auditors requesting them to comply with the provisions of this
paragraph when requested by TBCC.
5.11. Payment of Liabilities. Borrower shall pay and dis-charge, in the
-----------------------
ordinary course of business, all Indebtedness, except where the same may be
contested in good faith by appropriate proceedings and adequate reserves with
respect thereto have been provided on the books and records of Borrower in
accordance with GAAP.
5.12. Patents, Trademarks, Etc. Borrower shall do and cause to be done all
-------------------------
things necessary to preserve, maintain and keep in full force and ef-fect all of
its registrations of trademarks, service marks and other marks, trade names and
other trade rights, patents, copyrights and other intellectual property in
accordance with prudent business practices.
5.13. Proceeds of Collateral. * limiting any of the other terms of this
------------------------
Agreement, and without implying any consent to any sale or other transfer of
Collateral in xxxxx-tion of any provision of this Agreement, Borrower shall
de-liver to TBCC all proceeds of any sale or other trans-fer or disposition of
any Collateral, immediately upon re-ceipt of the same and in the same form as
received, with any necessary endorsements, and Borrower will not commingle any
such proceeds with any of its other funds or property, but will segregate them
from the other assets of Borrower and will hold them in trust and for the
account and as the property of TBCC.
* SUBJECT TO THE TERMS AND CONDITIONS OF THE STREAMLINE AGREEMENT OF EVEN DATE
HEREWITH, SALES OF EQUIPMENT AS OTHERWISE PERMITTED HEREUNDER AND SALES OF
INVENTORY IN THE ORDINARY COURSE OF BUSINESS, AND WITHOUT
5.14. Solvency. Borrower shall be Solvent at all times.
--------
6. Negative Covenants. Until termination of this Agreement and payment and
-------------------
satisfaction of all Obligations:
6.1. Contingent Obligations. Borrower will not, directly or indirectly,
-----------------------
incur, assume, or suffer to exist any Contingent Obligation, excluding
indemnities given in connection with this Agreement or the other Loan Documents
in favor of TBCC or in connection with the sale of Inventory or other asset
dispositions permitted hereunder.
6.2. Corporate Changes. Borrower will not, directly or indirectly, merge
-----------------
or consolidate with any Person, or liqui-date or dissolve (or suffer any
liquidation or dissolution). If TBCC fails to so provide its written consent for
any contemplated corporate changes, then such an occurrence shall constitute a
"Consent Condition" for purposes of all Term Notes and repayment thereof.
* WITHOUT THE WRITTEN CONSENT OF TBCC,
** IF TBCC FAILS TO SO PROVIDE ITS WRITTEN CONSENT FOR ANY CONTEMPLATED
CORPORATE CHANGES, THEN SUCH AN OCCURRENCE SHALL CONSTITUTE A "CONSENT
CONDITION" FOR PURPOSES OF ALL TERM NOTES AND REPAYMENT THEREOF.
TBCC LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
-8-
6.3. Change in Nature of Business. Borrower will not at any time make any
material change in the lines of its busi-ness as carried on at the date of this
Agreement or enter into any new line of business , other than business relating
to or arising in connection with the Borrower's current line of business.
* , OTHER THAN BUSINESS RELATING TO OR ARISING IN CONNECTION WITH THE
BORROWER'S CURRENT LINE OF BUSINESS
6.4. Sales of Assets. Borrower will not, directly or indi-rectly, in any
fiscal year, sell, transfer or otherwise dispose of any assets, or grant any
option or other right to purchase or otherwise acquire any assets other than (i)
Equipment with an aggregate value of less than $100,000 * the proceeds of which
shall be paid to TBCC and applied to the Obligations, (ii) sales of Inventory in
the ordinary course of business and (iii) licenses or sublicenses on a
non-exclusive basis of intellectual property in the ordinary course of
Borrower's business.
*100,000
6.5. Cancellation of Debt. Borrower will not cancel any claim or debt owed
to it, except in the ordinary course of business.
6.6. Loans to Other Persons. Borrower will not at any time make loans or
advance any credit (except to trade debtors in the ordinary course of business)
to any Person in excess of $25,000 in the aggregate at any time for all such
loans.
6.7. Liens. Borrower will not, directly or indirectly, at any time create,
incur, assume or suffer to exist any Lien on or with respect to any of the
Collateral, other than: Liens created hereunder and by any other Loan Document;
and Permitted Liens, provided that the aggregate amount of debt relating to
Purchase Money Liens with respect to Equipment shall not exceed $4,000,000
outstanding at any one time.
* , PROVIDED THAT THE AGGREGATE AMOUNT OF DEBT RELATING TO PURCHASE MONEY
LIENS WITH RESPECT TO EQUIPMENT SHALL NOT EXCEED $4,000,000 OUTSTANDING AT ANY
ONE TIME
6.8. Dividends, Stock Redemptions. Borrower will not, directly or
indirectly, pay any dividends or distributions on, purchase, redeem or retire
any shares of any class of its capi-tal stock or any warrants, options or rights
to purchase any such capital stock, whether now or hereafter outstanding
("Stock"), or make any payment on account of or set apart assets for a sinking
or other analogous fund for, the pur-chase, redemption, defeasance, retirement
or other acquisi-tion of its Stock, or make any other distribution in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of Borrower, except for dividends paid solely in stock of the
Borrower, provided that, so long as no Default or Event of Default is then
occurring that relates to or arises from the failure of Borrower to make payment
on the Obligations, then Borrower shall be permitted to pay dividends on its
preferred stock in an aggregate amount not to exceed $800,000 per calendar year;
provided, further, that, in any event, Borrower may issue dividends in common
stock of the Borrower without the consent of TBCC
* , PROVIDED THAT, SO LONG AS NO DEFAULT OR EVENT OF DEFAULT IS THEN
--------
OCCURRING THAT RELATES TO OR ARISES FROM THE FAILURE OF BORROWER TO MAKE PAYMENT
ON THE OBLIGATIONS, THEN BORROWER SHALL BE PERMITTED TO PAY DIVIDENDS ON ITS
PREFERRED STOCK IN AN AGGREGATE AMOUNT NOT TO EXCEED $800,000 PER CALENDAR YEAR;
PROVIDED, FURTHER, THAT, IN ANY EVENT, BORROWER MAY ISSUE DIVIDENDS IN COMMON
-------- -------
STOCK OF THE BORROWER WITHOUT THE CONSENT OF TBCC
6.9. Investments in Other Persons. Without the written consent of TBCC,
Borrower will not, directly or indirectly, at any time make or hold any
Investment in any Person (whether in cash, securities or other property of any
kind) other than Investments in Cash Equivalents. If TBCC fails to so provide
its written consent for any contemplated corporate changes, then such an
occurrence shall constitute a "Consent Condition" for purposes of all Term Notes
and the repayment thereof.
* WITHOUT THE WRITTEN CONSENT OF TBCC,
** IF TBCC FAILS TO SO PROVIDE ITS WRITTEN CONSENT FOR ANY CONTEMPLATED
CORPORATE CHANGES, THEN SUCH AN OCCURRENCE SHALL CONSTITUTE A "CONSENT
CONDITION" FOR PURPOSES OF ALL TERM NOTES AND THE REPAYMENT THEREOF.
6.10. Partnerships; Subsidiaries; Joint Ventures; Management Contracts.
Without the written consent of TBCC, Borrower will not at any time cre-ate any
direct or indirect Subsidiary, enter into any joint venture or similar
arrangement or become a partner in any general or limited partnership or enter
into any management contract (other than an employment contract for the
em-ployment of an officer or employee entered into in the regu-lar course of
Borrower's business) permitting third party management rights with respect to
Borrower's business. If TBCC fails to so provide its written consent for any
contemplated corporate changes, then such an occurrence shall constitute a
"Consent Condition" for purposes of all Term Notes and the repayment thereof.
6.11. Fiscal Year. Borrower will not change its fiscal year.
------------
6.12. Accounting Changes. Borrower will not at any time make or permit any
------------------
change in accounting policies or reporting practices, except as required by
GAAP.
6.13. Broker's or Finder's Fees. Borrower will not pay or incur any
----------------------------
broker's or finder's fees in connection with this Agreement or the transactions
contemplated hereby.
6.14. Unusual Terms of Sale. Borrower will not sell goods or products on
----------------------
extended terms, consignment terms, on a progress billing or xxxx and hold basis,
or on any other unusual terms.
6.15. Amendments of Material Contracts. Without the written consent of TBCC
--------------------------------
(which will not be unreasonably withheld), Borrower will not amend, modify,
cancel or terminate, or permit the amendment, modification, cancellation or
termination of, any Material Contract, if such amendment, modification,
cancellation or termination could have a Material Adverse Effect.
* WITHOUT THE WRITTEN CONSENT OF TBCC (WHICH WILL NOT BE UNREASONABLY
WITHHELD),
6.16. Sale and Leaseback Obligations. Borrower will not at any time create,
------------------------------
incur or assume any obligations as lessee for the rental of real or personal
property in connection with any sale and leaseback transaction.
6.17. Acquisition of Stock or Assets. Borrower will not acquire or commit
------------------------------
or agree to acquire all or any stock, secu-rities or assets of any other Person
other than Inventory and Equipment acquired in the ordinary course of business.
TBCC LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
-9-
7. Events of Default.
-------------------
7.1. Events of Default. The occurrence of any of the fol-lowing events
shall constitute an Event of Default:
(a) Borrower shall fail to pay any principal, interest, fees, expenses or
other Obligations when payable, whether at stated maturity, by acceleration, or
otherwise within 5 calendar days of the date due; or
* WITHIN 5 CALENDAR DAYS OF THE DATE DUE
(b) Borrower shall default in the performance or ob-xxxxxxxx of any
agreement, covenant, condition, provision or term contained in Section 1.1, 1.2,
1.4, 3.3, 5.7, 5.13, 6 (and its Sections and subsections), or 8.1 of this
Agreement, or Borrower shall fail to perform any non-monetary Obligation which
by its nature cannot be cured; or
(c) Borrower shall default in the performance or observance of any other
agreement, covenant, condition, provision or term of this Agreement (other than
those referred to in Section
(d) Borrower or any Guarantor shall dissolve, wind up or otherwise cease to
conduct its business; or
(e) Borrower or any Guarantor shall become the subject of (i) an Insolvency
Event except as set forth in clause (e) of the def-inition of Insolvency Event
or (ii) an Insolvency Event as set forth in clause (e) of the definition of
Insolvency Event that is not dismissed within sixty days; or
(f) any representation or warranty made by or on behalf of Borrower or any
Guarantor to TBCC, under this Agreement or oth-erwise, shall be incorrect or
misleading in any material re-spect when made or deemed made; or
(g) A change in the ownership or control of more than 30% of the voting
stock of the Borrower compared to such ownership on the date of this Agreement
other than for changes in the foregoing percentages arising from issuances of
new equity securities or the conversion of preferred stock of the Borrower to
common shares of Borrower; or
* 30%
** OTHER THAN FOR CHANGES IN THE FOREGOING PERCENTAGES ARISING FROM
ISSUANCES OF NEW EQUITY SECURITIES OR THE CONVERSION OF PREFERRED STOCK OF THE
BORROWER TO COMMON SHARES OF BORROWER
(h) any judgment or order for the payment of money shall be rendered
against Borrower in an aggregate amount of $100,000 or more and shall not be
stayed, vacated, bonded or discharged within thirty days, provided that any
liens in any Collateral arising from any such judgments or orders do not attain
a higher priority than the liens of TBCC therein; or
* IN AN AGGREGATE AMOUNT OF $100,000 OR MORE
** , PROVIDED THAT ANY LIENS IN ANY COLLATERAL ARISING FROM ANY SUCH
JUDGMENTS OR ORDERS DO NOT ATTAIN A HIGHER PRIORITY THAN THE LIENS OF TBCC
THEREIN
(i) any defined "Event of Default" shall occur under any other Loan
Document; or Borrower or any Guarantor shall deny or disaffirm its obligations
un-der any of the Loan Documents or any Liens granted in connection therewith or
shall otherwise challenge any of its obligations under any of the Loan
Documents; or any Liens granted in any of the Collateral shall be determined to
be void, voidable or invalid, are subordinated or are not given the priority
contemplated by this Agreement; or
(j) any Loan Document shall for any reason cease to create a valid and
perfected Lien on the Collateral purported to be covered thereby, of first
priority (except for Permitted Liens); or
(k) the Auditors for Borrower shall deliver a Qualified opinion on any
Financial Statement; or
(l) Borrower or any Guarantor (i) shall fail to pay any Indebtedness owing
to TBCC under any other agreement with TBCC or note or instrument in favor of
TBCC, when due (whether at scheduled maturity or by required prepayment,
acceleration, demand or otherwise), or (ii) shall otherwise be in breach of or
default in any of its obligations under any such agreement, note or instrument
with respect to any such Indebtedness; or
(m) Borrower or any Guarantor (i) shall fail to pay any Indebtedness in
excess of $200,000 * owing to any Person other than TBCC or any interest or
premium thereon, when due (whether at scheduled maturity or by required
prepayment, acceleration, demand or otherwise), or (ii) shall otherwise be in
breach or default in any of its obligations under any agreement with respect to
any such Indebtedness, if the effect of such breach, default or failure to pay
is to cause such Indebtedness to become due or redeemed or permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to declare such Indebtedness due or require such Indebtedness to be
redeemed prior to its stated maturity; or
* $200,000
(n) the occurrence of any event or condition that, in TBCC's judgment,
could reasonably be expected to have a Material Adverse Effect. TBCC may cease
making any Loans hereunder during any of the above cure periods, and thereafter
if any Event of Default has occurred and is continuing.
7.2. Remedies. Upon the occurrence and during the con-tinuance of an Event
--------
of Default, TBCC shall have all rights and remedies under applicable law and the
Loan Documents, and TBCC may do any or all of the fol-lowing:
(a) Declare all Obligations to be imme-diately due and payable (except with
respect to any Event of Default with respect to Borrower set forth in Section
(b) Cease making any Loans or other extensions of credit to Borrower of any
kind;
(c) Take possession of all documents, instruments, files and records
(including the copying of any computer records) relating to the Receivables or
other Collateral and use (at the expense of Borrower) such supplies or space of
Borrower at Borrower's places of business necessary to administer and collect
the Receivables and other Collateral;
TBCC LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
-10-
(d) Accelerate or extend the time of payment, compro-mise, issue credits,
or bring suit on the Receivables and other Collateral (in the name of Borrower
or TBCC) and otherwise administer and collect the Receivables and other
Collateral;
(e) Collect, receive, dispose of and realize upon any Investment Property,
including withdrawal of any and all funds from any securities accounts;
(f) Sell, assign and deliver the Receivables and other Collateral, with or
without advertisement, at public or pri-vate sale, for cash, on credit or
otherwise, subject to appli-cable law;
(g) Foreclose on the security interests created pursuant to the Loan
Documents by any available procedure, take pos-session of any or all of the
Collateral, with or without xxxx-cial process and enter any premises where any
Collateral may be located for the purpose of taking possession of or removing
the same; and
(h) Bid or become a purchaser at any sale, free from any right of
redemption, which right is ex-pressly waived by Borrower, if permitted under
applicable law. If notice of intended disposition of any Collateral is required
by law, it is agreed that ten days' notice shall con-stitute reasonable
notification. Borrower will assemble the Collateral and make it available at
such locations as TBCC may specify, whether at the premises of Borrower or
elsewhere, and will make available to TBCC the premises and facilities of
Borrower for the purpose of TBCC's taking possession of or removing the
Collateral or putting the Collateral in salable form.
(i) Borrower recognizes that TBCC may be unable to make a public sale of
any or all of the Investment Property, by reasons of prohibitions contained in
applicable securities laws or otherwise, and expressly agrees that a private
sale to a restricted group of purchasers for investment and not with a view to
any distribution thereof shall be considered a commercially reasonable sale.
7.3. Receivables. Upon the occurrence and during the continuance of an
-----------
Event of Default, or at any time that TBCC believes in good faith that fraud has
occurred or that Borrower has failed to deliver the proceeds of Receivables or
other Collateral to TBCC as may be required by this Agreement from time to time
or any other Loan Document, TBCC may (i) settle or adjust disputes or claims
di-rectly with account debtors for amounts and upon terms which it considers
advisable, and (ii) notify account debtors on the Receivables and other
Collateral that the Receivables and Collateral have been assigned to TBCC, and
that payments in respect thereof shall be made directly to TBCC. If an Event of
Default has occurred and is continuing or TBCC reasonably believes in good faith
that fraud has occurred, or that Borrower has failed to deliver the proceeds of
Receivables or other Collateral to TBCC as required by this Agreement or any
other Loan Document, Borrower hereby irrevocably authorizes and appoints TBCC,
or any Person TBCC may designate, as its attorney-in-fact, at Borrower's sole
cost and expense, to exercise, all of the following powers, which are coupled
with an interest and are irrevocable, until all of the Obligations have been
indefeasibly paid and satisfied in full in cash: (A) to receive, take, endorse,
sign, assign and de-liver, all in the name of TBCC or Borrower, any and all
checks, notes, drafts, and other documents or instruments relating to the
Collateral; (B) to receive, open and dispose of all mail addressed to Borrower
and to notify postal au-thorities to change the address for delivery thereof to
such address as TBCC may designate; and (C) to take or bring, in the name of
TBCC or Borrower, all steps, actions, suits or proceedings deemed by TBCC
neces-sary or desirable to enforce or effect collection of Receivables and
other Collateral or file and sign Borrower's name on a proof of claim in
bankruptcy or similar docu-ment against any obligor of Borrower.
7.4. Right of Set off. In addition to all rights of offset that TBCC may
----------------
have under applicable law, upon the occurrence and during the continuance of any
Event of Default, and whether or not TBCC has made any xx-xxxx or the
Obligations of Borrower have matured, TBCC shall have the right to appropriate
and apply to the payment of the Obligations of Borrower all deposits and other
obligations then or thereafter owing by TBCC to or for the credit or the account
of Borrower. In the event that TBCC exercises any of its rights under this
Section, TBCC shall provide notice to Borrower of such exercise, provided that
the failure to give such notice shall not affect the validity of the exercise of
such rights.
7.5. License for Use of Software and Other Intellectual Property. After the
--------------------------------------------------------------
occurrence and during the continuance of an Event of Default, unless expressly
prohibited by any licensor thereof, TBCC is hereby granted a license to use all
computer software programs, data bases, processes, trademarks, tradenames and
materials used by Borrower in connection with its businesses or in connection
with the Collateral.
7.6. No Marshalling; Deficiencies; Remedies Cumulative. The net cash
--------------------------------------------------
proceeds resulting from TBCC's exercise of any of its rights with respect to
Collateral, including any and all Collections (after deducting all of TBCC's
reasonable expenses related thereto), shall be applied by TBCC to such of the
Obligations in such order as TBCC shall elect in its sole and absolute
discretion, whether due or to become due. Borrower shall remain liable to TBCC
for any defi-ciencies and TBCC shall remit to Borrower or its successor or
assign, any surplus resulting therefrom. The remedies specified in this
Agreement are cumulative, may be exercised in such order and with respect to
such Collateral as TBCC may deem desirable and are not intended to be exclusive,
and the full or partial exercise of any of them shall not preclude the full or
partial exercise of any other available remedy under this Agreement, under any
other Loan Document, at equity or at law.
TBCC LOAN AND SECURITY AGREEMENT
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-11-
7.7. Waivers. Borrower hereby waives any bonds, secu-rity or sureties
-------
required by any statute, rule or any other law as an incident to any taking of
possession by TBCC of any Collateral. Borrower also waives any damages (direct,
consequential or otherwise) occasioned by the en-forcement of TBCC's rights
under this Agreement or any other Loan Document including the taking of
posses-sion of any Collateral or the giving of notice to any account debtor or
the collection of any Receivable or other Collateral (other than damages that
are the result of acts or omissions constituting gross negligence or willful
miscon-duct of TBCC). These waivers and all other waivers provided for in this
Agreement and the other Loan Documents have been negotiated by the parties and
Borrower acknowledges that it has been represented by counsel of its own choice
and has consulted such counsel with respect to its rights hereunder.
7.8. Right to Make Payments. In the event that Borrower shall fail to
-----------------------
purchase or maintain insurance re-quired hereunder, or to pay any tax,
assessment, government charge or levy, except as the same may be otherwise
permit-xxx hereunder, or in the event that any Lien prohibited hereby shall not
be paid in full or discharged, or in the event that Borrower shall fail to
perform or comply with any other covenant, promise or obligation to TBCC
here-under or under any other Loan Document, TBCC may (but shall not be required
to) perform, pay, satisfy, discharge or bond the same for the account of
Borrower, and all amounts so paid by TBCC shall be treated as a Loan hereunder
to Borrower and shall constitute part of the Obligations.
8. Assignments and Participations.
--------------------------------
8.1. Assignments. Borrower shall not assign this Agreement or any right or
-----------
obligation hereunder without the prior written consent of TBCC. TBCC may assign
(without the consent of Borrower) to one or more Persons all or a portion of its
rights and obligations under this Agreement and the other Loan Documents.
8.2. Participations. TBCC may sell participations in or to all or a portion
--------------
of its rights and obligations under this Agreement (including, without
limitation, all or a por-tion of the Loans); provided, however, that TBCC's
obligations under this Agreement shall remain unchanged.
8.3. Disclosure. TBCC may, in connection with any permitted assignment or
----------
participation or proposed as-signment or participation pursuant to this
Agreement, dis-close to the assignee or participant or proposed assignee or
participant any information relating to Borrower furnished to TBCC by or on
behalf of Borrower.
9. DEFINITIONS.
-----------
9.1. General Definitions. As used herein, the following terms shall have
--------------------
the meanings herein specified (to be equally applicable to both the singular and
plural forms of the terms defined):
(a) Affiliate means as to any Person, any other Person who directly or
---------
indirectly controls, is under common control with, is controlled by or is a
director or officer of such Person. As used in this definition, "control"
(including its correlative meanings, "controlled by" and "un-der common control
with") means possession, directly or indirectly, of the power to direct or cause
the direction of management or policies (whether through ownership of vot-ing
securities or partnership or other ownership interests, by contract or
otherwise), provided that, in any event, any Person who owns directly or
indirectly twenty percent (20%) or more of the securities having ordinary voting
power for the election of the members of the board of direc-tors or other
governing body of a corporation or twenty per-cent (20%) or more of the
partnership or other ownership interests of any other Person (other than as a
limited partner of such other Person) will be deemed to control such
corpo-ration, partnership or other Person.
(b) Agreement means this Loan and Security Agreement, as amended,
---------
supplemented or otherwise modi-fied from time to time.
(c) Auditors means a nationally recognized firm of in-dependent public
--------
accountants selected by Borrower and rea-sonably satisfactory to TBCC.
(d) Bankruptcy Code means Title 11 of the United States Code entitled
----------------
"Bankruptcy," as that title may be amended from time to time, or any successor
statute.
(e) Borrowing means a borrowing of Loans.
---------
(f) Business Day means any day other than a Saturday, Sunday or any other
--------
day on which commercial banks in Chicago, Illinois are re-quired or permitted by
law to close.
(g) Cash Equivalents means (i) securities issued, guaranteed or insured by
---------------
the United States or any of its agencies with maturities of not more than one
year from the date acquired; (ii) certificates of deposit with maturities of not
more than one year from the date acquired, issued by any U.S. federal or state
chartered commercial bank of recog-nized standing which has capital and
unimpaired surplus in excess of $100,000,000; (iii) investments in money market
funds registered under the Investment Company Act of 1940; and (iv) other
instruments, commercial paper or investments acceptable to TBCC in its sole
discre-tion.
(h) Collateral means Receivables, Investment Property, Inventory,
---------
Equipment, and Other Property, and all additions and acces-sions thereto and
substitutions and replacements therefor and improvements thereon, and all
TBCC LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
-12-
proceeds (whether cash or other property) and products thereof, including,
without lim-itation, all proceeds of insurance covering the same and all tort
claims in connection therewith, and all records, files, computer programs and
files, data and writings relating to the foregoing, and all equipment containing
the foregoing *.
* , PROVIDED THAT THE FOREGOING SHALL NOT INCLUDE EQUIPMENT THAT IS THE SUBJECT
OF ANY PURCHASE MONEY LIEN TO THE EXTENT THE AGREEMENTS AND CONTRACTS
GIVING RISE TO ANY SUCH PURCHASE MONEY LIEN PROHIBIT THE GRANT OF A SECURITY
INTEREST THEREIN
(i) Collections means all cash, funds, checks, notes, instruments, any
-----------
other form of remittance tendered by ac-count debtors in respect of payment of
Receivables and any other payments received by Borrower with respect to any
other Collateral.
(j) Compliance Certificate means a certificate as to compliance with the
-----------------------
Obligations, on TBCC's xxxx-dard form (in effect from time to time).
(k) Contingent Obligation means any direct, indirect, contingent or
----------------------
on-contingent guaranty or obligation for the Indebtedness of another Person,
except endorsements in the ordinary course of business.
(l) Default means any of the events specified in Section 7.1, whether or
-------
not any of the requirements for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
(m) [Reserved]
--------
(n) [Reserved]
--------
(o) Equipment means all machinery, equipment, furniture, fixtures,
---------
conveyors, tools, materials, storage and handling equipment, hydraulic presses,
cutting equipment, computer equipment and hardware, including central
process-ing units, terminals, drives, memory units, printers, key-boards,
screens, peripherals and input or output devices, molds, dies, stamps, vehicles,
and other equipment of every kind and nature and wherever situated now or
hereafter owned by Borrower or in which Borrower may have any in-terest as
lessee or otherwise (to the extent of such interest), together with all
additions and accessions thereto, all re-placements and all accessories and
parts therefor, all manu-als, blueprints, know-how, warranties and records in
connec-tion therewith, all rights against suppliers, warrantors, manufacturers,
sellers or others in connection therewith, and together with all substitutes for
any of the foregoing.
(p) Event of Default means the occurrence of any of the events specified in
----------------
Section 7.1.
(q) Financial Statements means the balance sheets, profit and loss
---------------------
statements, statements of cash flow, and statements of changes in intercompany
accounts, if any, for the period specified, prepared in accordance with GAAP and
consistent with prior practices.
(r) GAAP means generally accepted accounting prin-ciples set forth in the
----
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pro-nouncements of
the Financial Accounting Standards Board that are applicable to the
circumstances as of the date of de-termination. Whenever any accounting term is
used herein which is not otherwise defined, it shall be interpreted in
ac-cordance with GAAP.
(s) Good Faith means "good faith" as defined in the Uniform Commercial
----------
Code, from time to time in effect in the State of Illinois.
(t) Governing Documents means the articles or cer-tificate of incorporation
-------------------
and by-laws of Borrower.
(u) Governmental Authority means any nation or government, any state or
-----------------------
other political subdivision thereof or any entity exercising executive,
legislative, judicial, reg-ulatory or administrative functions thereof or
pertaining thereto.
(v) Guarantor means any present or future guarantor of any or all of the
---------
Obligations.
(w) Indebtedness means, with respect to any Person, as of the date of
------------
determination any indebtedness, liability or obligation of such Person
(including without limitation obligations under capital leases and Contingent
Obligations).
(x) Insolvency Event means, with respect to any Person, the occurrence of
----------------
any of the following: (a) such Person shall be adjudicated insolvent or
bankrupt, or shall generally fail to pay or admit in writing its inability to
pay its debts as they become due, (b) such Person shall seek dissolution or
reorganization or the appointment of a re-ceiver, trustee, custodian or
liquidator for it or a substantial portion of its property, assets or business
or to effect a plan or other arrangement with its creditors, (c) such Person
shall make a general assignment for the benefit of its credi-tors, or consent to
or acquiesce in the appointment of a re-ceiver, trustee, custodian or liquidator
for a substantial por-tion of its property, assets or business, (d) such Person
shall file a voluntary petition under any bankruptcy, insol-vency or similar law
or take any corporate or similar act in furtherance thereof, or (e) such Person,
or a substantial por-tion of its property, assets or business shall become the
subject of an involuntary proceeding or petition for its dis-solution,
reorganization, and such proceeding is not dis-missed or stayed within sixty
days, or the appointment of a receiver, trustee, custodian or liquidator, and
such receiver is not dismissed within sixty days.
(y) Inventory means all present and future goods in-tended for sale, lease
---------
or other disposition by Borrower in-cluding, without limitation, all raw
materials, work in pro-cess, finished goods and other retail inventory, goods in
the possession of outside processors or other third parties, goods consigned to
Borrower to the extent of its interest therein as consignee, materials and
supplies of any kind, na-ture or description which are or might be used in
connection with the manufacture, packing, shipping, advertising, sell-ing or
finishing of any such goods, and all documents of ti-tle or documents
representing the same.
(z) Investment in any Person means, as of the date of determination
----------
thereof, any payment or contribution, or commitment to make a payment or
contribution, by any Person including, without limitation, property contributed
or committed to be contributed by any Person, on its ac-count for or in
connection with its acquisition of any stock, bonds, notes, debentures,
partnership or other ownership in-terest or any other security of the Person in
TBCC LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
-13-
whom such Investment is made or any evidence of indebtedness by rea-son of a
loan, advance, extension of credit, guaranty or other similar obligation for any
debt, liability or indebtedness of such Person in whom the Investment is made.
(aa) Investment Property means any and all investment property of Borrower,
-------------------
including all securities, whether certificated or uncertificated, security
entitlements, securities accounts, commodity contracts and commodity accounts,
and all financial assets held in any securities account or otherwise, wherever
located, and whether now existing or hereafter acquired or arising.
(bb) Lien means any lien, claim, charge, pledge, secu-rity interest,
----
assignment, hypothecation, deed of trust, mortgage, lease, conditional sale,
retention of title or other preferential arrangement having substantially the
same eco-nomic effect as any of the foregoing, whether voluntary or imposed by
law.
(cc) Loan Account has the meaning specified in Section 1.3.
------------
(dd) Loan Documents means this Agreement and all present and future
---------------
documets and instruments delivered or to be delivered by Borrower or any of its
Affiliates or any Guarantor under, in connection with or relating to this
Agreement, or any other present or future instrument or agreement between TBCC
and Borrower, as each of the same may be amended, supplemented or otherwise
modi-fied from time to time.
(ee) Loans means the loans and financial accommoda-tions made by TBCC
-----
hereunder.
(ff) Material Adverse Effect means (i) a material ad-verse effect on the
------------------------
business, prospects, operations, results of operations, assets, liabilities or
condition (financial or otherwise) of Borrower, (ii) the impairment of
Borrower's ability to perform its obligations under the Loan Documents to which
it is a party or of TBCC to en-force the Obligations or realize upon the
Collateral or (iii) a material adverse effect on the value of the Collateral or
the amount which TBCC would be likely to receive (after giving consideration to
delays in payment and costs of en-forcement) in the liquidation of the
Collateral.
(gg) Material Contract means any contract or other ar-rangement to which
------------------
Borrower is a party (other than the Loan Documents) for which breach,
nonperformance, can-cellation or failure to renew could have a Material Adverse
Effect.
(hh) Obligations means and includes all loans (including the Loans),
-----------
advances, debts, liabilities, obliga-tions, covenants and duties owing by
Borrower to TBCC of any kind or nature, present or future, whether or not
evidenced by any note, guaranty or other in-strument, whether or not arising
under or in connection with, this Agreement, any other Loan Document or any
other present or future instrument or agreement, whether or not for the payment
of money, whether arising by reason of an extension of credit, opening,
guaran-teeing or confirming of a letter of credit, loan, guaranty,
in-demnification or in any other manner, whether direct or indi-rect (including
those acquired by assignment, purchase, dis-count or otherwise), whether
absolute or contingent, due or to become due, now due or hereafter arising and
however ac-quired (including without limitation all loans previously made by
TBCC to Borrower). The term includes, without limitation, all interest
(including interest accruing on or after an Insolvency Event, whether or not an
allowed claim), charges, expenses, com-mitment, facility, closing and collateral
management fees, letter of credit fees, reasonable attorneys' fees, and any
other sum properly chargeable to Borrower under this Agreement, the other Loan
Documents or any other present or future agreement between TBCC and Borrower.
(ii) Other Property means all present and future: in-struments, documents,
--------------
documents of title, securities, bonds, notes, promissory notes, drafts,
acceptances, letters of credit and rights to receive proceeds of letters of
credit, deposit accounts, chattel paper, certificates, insurance policies,
insurance proceeds, leases, computer tapes, causes of action, judgments, claims
against third par-ties, leasehold rights in any personal property, books,
ledgers, files and records, general intangibles (including without limitation,
all contract rights, tax refunds, rights to receive tax refunds, patents, patent
applications, copyrights (registered and unregistered), royalties, licenses,
permits, franchise rights, authorizations, customer lists, rights of
in-demnification, contribution and subrogation, computer pro-grams, discs and
software, trade secrets, computer service contracts, trademarks, trade names,
service marks and names, logos, goodwill, deposits, choses in action, designs,
blueprints, plans, know-how, telephone numbers and rights thereto, credits,
reserves, and all forms of obligations what-soever now or hereafter owing to
Borrower), all property at any time in the possession or under the control of
TBCC, and all security given by Borrower to TBCC pursuant to any other Loan
Document or agreement.
(jj) Permitted Liens means such of the following as to which no
-----------------
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced and be continuing: (i) Liens for taxes, assessments and other
gov-ernmental charges or levies or the claims or demands of landlords, carriers,
warehousemen, mechanics, laborers, materialmen and other like Persons arising by
operation of law in the ordinary course of business for sums which are not yet
due and payable, (ii) deposits or pledges to secure the payment of workmen's
compensation, unemployment insurance or other social security benefits or
obligations, public or statutory obligations, surety or ap-peal bonds, bid or
performance bonds, or other obligations of a like nature incurred in the
ordinary course of business (but nothing in this clause (ii) shall permit the
creation of Liens on Receivables, Investment Property, Inventory or Other
Property), (iii) zoning restrictions, easements, encroachments, li-censes,
TBCC LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
-14-
restrictions or covenants on the use of property which do not materially impair
either the use of the property in the operation of the business of Borrower or
the value of the property, (iv) rights of general application re-served to or
vested in any municipality or other governmen-tal, statutory or public authority
to control or regulate prop-erty, or to use property in a manner which does not
materi-ally impair the use of the property for the purposes for which it is held
by Borrower, (v) state and municipal Liens for personal property taxes which are
not yet due and payable, and (vi) Purchase Money Liens.
(kk) Person means any individual, sole proprietor-ship, partnership, joint
------
venture, limited liability company, trust, unincorporated orga-nization, joint
stock company, association, corporation, in-stitution, entity, party or
government (including any divi-sion, agency or department thereof) or any other
legal en-tity, whether acting in an individual, fiduciary or other ca-pacity,
and, as applicable, the successors, heirs and assigns of each.
(ll) Plan means any employee benefit plan, program or arrangement
----
maintained or contributed to by Borrower or with respect to which it may incur
liability.
(mm) Purchase Money Lien means a Lien on any item of Equipment created
---------------------
substantially simultaneously with the acquisition of such Equipment for the
purpose of financing such acquisition, provided that such Lien shall attach only
to the Equipment acquired.
(nn) Qualification or Qualified means, with respect to any report of
----------------------------
Auditors covering Financial Statements, a material qualification to such report
(i) resulting from a limitation on the scope of examination of such Financial
Statements or the underlying data, (ii) as to the capability of Borrower to
continue operations as a go-ing concern or (iii) which could be eliminated by
changes in Financial Statements or notes thereto covered by such re-port (such
as by the creation of or increase in a reserve or a decrease in the carrying
value of assets) and which if so eliminated by the making of any such change and
after giv-ing effect thereto would result in a Default or an Event of Default.
(oo) Receivables means all present and future accounts and accounts
-----------
receivable, together with all security therefor and guaranties thereof and all
rights and remedies relating thereto, including any right of stoppage in
transit.
(pp) Requirement of Law means (a) the Governing Documents, (b) any law,
-------------------
treaty, rule, regulation, order or determination of an arbitrator, court or
other Governmental Authority or (c) any franchise, license, lease, permit,
cer-tificate, authorization, qualification, easement, right of way, right or
approval binding on Borrower or any of its prop-erty.
(qq) Schedule means the Schedule to this Agreement being signed
--------
concurrently by Borrower and TBCC, as amended from time to time.
(rr) Solvent means when used with respect to any Person that as of the date
-------
as to which such Person's sol-vency is to be measured: (a) the fair salable
value of its as-sets is in excess of the total amount of its liabilities
(including contingent liabilities as valued in accordance with applicable law)
as they become absolute and matured; (b) it has sufficient capital to conduct
its business; and (c) it is able to meet its debts as they mature.
(ss) Subsidiary means, as to any Person, a corpora-tion or other entity in
----------
which that Person directly or indi-rectly owns or controls shares of stock or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or appoint other managers of such corporation or other
entity.
9.2. Accounting Terms and Determinations. Unless oth-erwise defined or
--------------------------------------
specified herein, all accounting terms used in this Agreement shall be construed
in accordance with GAAP, applied on a basis consistent in all material respects
with the Financial Statements delivered to TBCC on or before the date of this
Agreement. All accounting deter-minations for purposes of determining
compliance with this Agreement shall be made in accordance with GAAP as in
ef-fect on the date of this Agreement and applied on a basis consistent in all
material respects with the audited Financial Statements delivered to TBCC on or
before the date of this Agreement. The Financial Statements required to be
delivered hereunder, and all financial records, shall be main-tained in
accordance with GAAP. If GAAP shall change from the basis used in preparing the
audited Financial Statements delivered to TBCC on or before the date of this
Agreement, the Compliance Certificates required to be delivered pursuant to this
Agreement shall include calcu-lations setting forth the adjustments necessary to
demon-strate how Borrower is in compliance with the Financial Covenants (if any)
based upon GAAP as in effect on the date of this Agreement.
9.3. Other Terms; Headings; Construction. Unless otherwise defined herein,
------------------------------------
terms used herein that are defined in the Uniform Commercial Code, from time to
time in effect in the State of Illinois, shall have the meanings set forth
therein. Each of the words "hereof," "herein," and "hereunder" refer to this
Agreement as a whole. The term "including", when-ever used in this Agreement,
shall mean "including (but not limited to)". An Event of Default shall
"continue" or be "continuing" unless and until such Event of Default has been
waived or cured within the grace period specified therefor under Section 7.1.
References to Articles, Sections, Annexes, Schedules, and Exhibits are internal
ref-erences to this Agreement, and to its attachments, unless otherwise
specified. The headings and any Table of Contents are for convenience only and
shall not affect the meaning or construction of any provision of this Agreement.
This Agreement has been fully reviewed and negotiated between the parties and no
uncertainty or ambiguity in any term or provision of this Agreement shall be
construed strictly against TBCC or Borrower under any rule of construction or
otherwise.
10. GENERAL PROVISIONS.
--------------------
TBCC LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
-15-
10.1. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
-------------
AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY DISPUTE ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, WHETHER
SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE GOVERNED BY THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF ILLINOIS.
10.2. SUBMISSION TO JURISDICTION. ALL DISPUTES BETWEEN THE BORROWER AND
---------------------------
TBCC, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE RESOLVED
ONLY BY STATE AND FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, AND THE COURTS TO
WHICH AN APPEAL THEREFROM MAY BE TAKEN; PROVIDED, HOWEVER, THAT TBCC SHALL HAVE
THE RIGHT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST THE
BORROWER OR ITS PROPERTY IN ANY LOCATION REASONABLY SELECTED BY TBCC IN GOOD
FAITH TO ENABLE TBCC TO REALIZE ON SUCH PROPERTY, OR TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF TBCC. THE BORROWER AGREES THAT IT WILL NOT ASSERT
ANY PERMISSIVE COUNTERCLAIMS, SETOFFS OR CROSS-CLAIMS IN ANY PROCEEDING BROUGHT
BY TBCC. THE BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF
THE COURT IN WHICH TBCC HAS COMMENCED A PROCEEDING, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON FORUM NON
CONVENIENS.
10.3. SERVICE OF PROCESS. THE BORROWER HEREBY IRREVOCABLY DESIGNATES CT
------------------
CORPORATION SYSTEM, 0000 XXXXXX XXXXXX, XXXXXXXXXX, XXXXXXXX 00000, AS THE
DESIGNEE AND AGENT OF THE BORROWER TO RECEIVE, FOR AND ON BEHALF OF THE
BORROWER, SERVICE OF PROCESS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT. IT IS UNDERSTOOD THAT A COPY OF SUCH
PROCESS SERVED ON SUCH AGENT AT ITS ADDRESS WILL BE PROMPTLY FORWARDED BY MAIL
TO THE BORROWER, BUT THE FAILURE OF THE BORROWER TO RECEIVE SUCH COPY SHALL NOT
AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF THE LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
10.4. LIMITATION OF LIABILITY. TBCC SHALL HAVE NO LIABILITY TO THE BORROWER
-----------------------
(WHETHER SOUNDING IN TORT, CONTRACT, OR OTHERWISE) FOR LOSSES SUFFERED BY THE
BORROWER IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO THE
TRANSACTIONS OR RELATIONSHIPS CONTEMPLATED BY THIS AGREEMENT, OR ANY ACT,
OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, UNLESS IT IS DETERMINED BY
A FINAL AND NONAPPEALABLE JUDGMENT OR COURT ORDER OR, IN THE CASE OF A BINDING
ARBITRATION PROCEEDING, IF AGREED TO BE ENTERED INTO BY THE PARTIES HERETO IN
THE SOLE DISCRETION OF EACH OF THE PARTIES, UPON THE ISSUANCE OF A FINAL AND
NONAPPEALABLE DECISION ARISING FROM ANY SUCH PROCEEDING, BINDING ON TBCC THAT
THE LOSSES WERE THE RESULT OF ACTS OR OMISSIONS CONSTITUTING GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF TBCC. THE BORROWER HEREBY WAIVES ALL FUTURE CLAIMS AGAINST
TBCC FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES.
* OR, IN THE CASE OF A BINDING ARBITRATION PROCEEDING, IF AGREED TO BE
ENTERED INTO BY THE PARTIES HERETO IN THE SOLE DISCRETION OF EACH OF THE
PARTIES, UPON THE ISSUANCE OF A FINAL AND NONAPPEALABLE DECISION ARISING FROM
ANY SUCH PROCEEDING,
10.5. Delays; Partial Exercise of Remedies. No delay or omission of TBCC to
------------------------------------
exercise any right or remedy hereunder shall impair any such right or operate as
a waiver thereof. No single or partial exercise by TBCC of any right or remedy
shall preclude any other or further exer-cise thereof, or preclude any other
right or remedy.
10.6. Notices. Except as otherwise provided herein, all notices and
-------
correspondence hereunder shall be in writing and sent by certified or registered
mail, return receipt requested, by overnight delivery service, with all charges
prepaid, or by telecopier followed by a hard copy sent by regular mail, to the
parties at their addresses set forth in the heading to this Agreement. All such
notices and correspondence shall be deemed given (i) if sent by certified or
registered mail, three Business Days after being postmarked, (ii) if sent by
overnight delivery service, when received at the above stated addresses or when
delivery is refused and (iii) if sent by telecopier transmission, when receipt
of such transmission is acknowledged. Borrower's and TBCC's telecopier numbers
for purpose of notice hereunder are set forth in the Schedule; each party's
number may be changed by written notice to the other party.
10.7. Indemnification; Reimbursement of Expenses of Collection. Borrower
---------------------------------------------------------
hereby indemnifies and agrees, whether or not any of the transactions
contemplated by this Agreement or the other Loan Documents are consummated, to
defend and hold harmless (on an after-tax basis) TBCC, its successors and
assigns and their respective directors, officers, agents, employees, advisors,
sharehold-ers, attorneys and Affiliates (each, an "Indemnified Party") from and
against any and all losses, claims, damages, liabil-ities, deficiencies,
obligations, fines, penalties, actions (whether threatened or existing),
judgments, suits (whether threatened or existing) or expenses (including,
without limi-tation, reasonable fees and disbursements of counsel, ex-perts,
consultants and other professionals) incurred by any of them (collectively,
"Claims") (except, in the case of each Indemnified Party, to the extent that any
TBCC LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
-16-
Claim is deter-mined in a final and non-appealable judgment by a court of
competent jurisdiction to have directly resulted from such Indemnified Party's
gross negligence or willful misconduct) arising out of or by reason of (i) any
litigation, investiga-tion, claim or proceeding which arises out of or is
related to (A) Borrower, or this Agreement, any other Loan Document or the
transactions contemplated hereby or thereby, (B) any actual or proposed use by
Borrower of the proceeds of the Loans, or (C) TBCC's entering into this
Agreement or any other Loan Document or any other agreements and documents
relating hereto, including, with-out limitation, amounts paid in settlement,
court costs and the reasonable fees and disbursements of counsel incurred in
connection with any such litigation, investigation, claim or proceeding, (ii)
any remedial or other action taken by Borrower in connection with compliance by
Borrower, or any of its properties, with any federal, state or local
envi-ronmental laws, rules or regulations, and (iii) any pending, threatened or
actual action, claim, proceeding or suit by any shareholder or director of
Borrower or any actual or pur-ported violation of Borrower's charter, by-laws or
any other agreement or instrument to which Borrower is a party or by which any
of its properties is bound. In addition and with-out limiting the generality of
the foregoing, Borrower shall, upon demand, pay to TBCC all reasonable costs and
expenses incurred by TBCC (including the reasonable fees and disbursements of
counsel and other professionals) in connection with the preparation, execution,
delivery, ad-ministration, modification and amendment of the Loan Documents, and
pay to TBCC all reasonable costs and expenses (including the reasonable fees and
disburse-ments of counsel and other professionals) paid or incurred by TBCC in
order to enforce or defend any of its rights under or in respect of this
Agreement, any other Loan Document or any other document or instrument now or
hereafter executed and delivered in connection herewith, col-lect the
Obligations or otherwise administer this Agreement, foreclose or otherwise
realize upon the Collateral or any part thereof, prosecute ac-tions against, or
defend actions by, account debtors; commence, intervene in, or defend any action
or proceed-ing; initiate any complaint to be relieved of the automatic stay in
bankruptcy; file or pros-ecute any probate claim, bankruptcy claim, third-party
claim, or other claim; exam-ine, audit, copy, and inspect any of the Collateral
or any of Borrower's books and records; protect, obtain possession of, lease,
dispose of, or otherwise enforce TBCC's secu-rity interest in, the Collateral;
and otherwise represent TBCC in any litigation relat-ing to Borrower. Without
limiting the generality of the foregoing, Borrower shall pay TBCC a fee with
respect to each wire transfer in the amount of $15 plus all bank charges and a
fee of $15 for all returned checks plus all bank charges. If either TBCC or
Borrower files any lawsuit against the other predicated on a breach of this
Agreement, the prevailing party in such action shall be enti-tled to recover its
reason-able costs and attorneys' fees, in-cluding (but not limited to)
reasonable attorneys' fees and costs incurred in the en-forcement of, execution
upon or de-fense of any order, xx-xxxx, award or judgment. If and to the extent
that the Obligations of Borrower hereunder are unen-forceable for any reason,
Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of the Obligations which is permissible under applicable law.
Borrower's obligations under Section 2.4 and this Section shall survive any
termination of this Agreement and the other Loan Documents and the payment in
full of the Obligations, and are in addition to, and not in substitution of, any
of the other Obligations.
10.8. Amendments and Waivers. Any provision of this Agreement or any other
----------------------
Loan Document may be amended or waived if, but only if, such amendment or waiver
is in writ-ing and signed by Borrower and TBCC and then any such amendment or
waiver shall be effective only to the ex-tent set forth therein. The failure of
TBCC at any time or times to require Borrower to strictly comply with any of the
pro-visions of this Agreement or any other present or future agreement between
Borrower and TBCC shall not waive or diminish any right of TBCC later to demand
and re-ceive strict compliance therewith. Any waiver of any de-fault shall not
waive or affect any other default, whether prior or subsequent, and whether or
not similar. None of the provisions of this Agreement or any other agreement now
or in the future executed by Borrower and delivered to TBCC shall be deemed to
have been waived by any act or knowledge of TBCC or its agents or employees, but
only by a specific written waiver signed by an authorized officer of TBCC and
delivered to Borrower.
10.9. Counterparts; Telecopied Signatures. This Agreement and any waiver or
-----------------------------------
amendment hereto may be ex-ecuted in counterparts and by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but both of which shall together con-stitute one and the same
instrument. This Agreement and each of the other Loan Documents and any notices
given in connection herewith or therewith may be executed and deliv-ered by
telecopier or other facsimile transmission all with the same force and effect as
if the same was a fully executed and delivered original manual counterpart.
10.10. Severability. In case any provision in or obligation under this
------------
Agreement or any other Loan Document shall be invalid, illegal or unenforceable
in any jurisdiction, the va-lidity, legality and enforceability of the remaining
provi-sions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
10.11. Joint and Several Liability. If Borrower consists of more than one
---------------------------
Person, their liability shall be joint and several, and the compromise of any
claim with, or the re-lease of, any Borrower shall not constitute a compromise
with, or a release of, any other Borrower.
10.12. Maximum Rate. Notwithstanding anything to the contrary contained
------------
elsewhere in this Agreement or in any other Loan Document, the parties hereto
hereby agree that all agreements between them under this Agreement and the other
Loan Documents, whether now existing or hereafter arising and whether written or
oral, are expressly limited so that in no contingency or event whatsoever shall
TBCC LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
-17-
the amount paid, or agreed to be paid, to TBCC for the use, forbearance, or
detention of the money loaned to Borrower and evidenced hereby or thereby or for
the perfor-xxxxx or payment of any covenant or obligation contained herein or
therein, exceed the maximum non-usurious inter-est rate, if any, that at any
time or from time to time may be contracted for, taken, reserved, charged or
received on the Obligations, under the laws of the State of Illinois (or the
laws of any other jurisdiction whose laws may be mandatorily applicable
notwithstanding other provisions of this Agreement and the other Loan
Documents), or under applicable federal laws which may presently or hereafter be
in effect and which allow a higher maximum non-usurious interest rate than under
the laws of the State of Illinois (or such other jurisdiction), in any case
after taking into ac-count, to the extent permitted by applicable law, any and
all relevant payments or charges under this Agreement and the other Loan
Documents executed in connection herewith, and any available exemptions,
exceptions and exclusions (the "Highest Lawful Rate"). If due to any
circumstance what-soever, fulfillment of any provisions of this Agreement or any
of the other Loan Documents at the time performance of such provision shall be
due shall exceed the Highest Lawful Rate, then, automatically, the obligation to
be ful-filled shall be modified or reduced to the extent necessary to limit such
interest to the Highest Lawful Rate, and if from any such circumstance TBCC
should ever receive anything of value deemed interest by applicable law which
would exceed the Highest Lawful Rate, such excessive in-terest shall be applied
to the reduction of the principal amount then outstanding hereunder or on
account of any other then outstanding Obligations and not to the payment of
interest, or if such excessive interest exceeds the principal unpaid balance
then outstanding hereunder and such other then outstanding Obligations, such
excess shall be refunded to Borrower. All sums paid or agreed to be paid to TBCC
for the use, forbearance, or detention of the Obligations and other indebtedness
of Borrower to TBCC shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full term of such
indebtedness, until payment in full thereof, so that the actual rate of interest
on account of all such indebtedness does not exceed the Highest Lawful Rate
throughout the entire term of such indebtedness. The terms and provisions of
this Section shall control every other pro-vision of this Agreement, the other
Loan Documents and all other agreements between the parties hereto.
10.13. Entire Agreement; Successors and Assigns. This Agreement and the
--------------------------------------------
other Loan Documents constitute the en-tire agreement between the parties,
supersede any prior writ-ten and verbal agreements between them, and shall bind
and benefit the parties and their respective successors and per-mitted assigns.
There are no oral under-standings, oral representations or oral agreements
--------------------------------------------------------------------------------
between the par-ties which are not set forth in this Agreement or in other
--------------------------------------------------------------------------------
written agreements signed by the parties in connection herewith.
--------------------------------------------------------------------------------
10.14. MUTUAL WAIVER OF JURY TRIAl. TBCC and Borrower each hereby waive the
----------------------------
right to trial by jury in any action or proceeding based upon, arising out of,
or in any way relating to: (i) this Agreement; or (ii) any other present or
future instrument or agreement between TBCC and Borrower; or (iii) any conduct,
acts or omissions of TBCC or Borrower or any of their directors, officers,
em-ployees, agents, attorneys or any other persons affiliated with TBCC or
Borrower; in each of the foregoing cases, whether sounding in contract or tort
or otherwise.
Borrower:
LifeCell Corporation
By
------------------------------------
Title
----------------------------
TBCC:
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By
------------------------------------
Title
----------------------------
Form-10
Version: -4
TBCC LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
-18-
SCHEDULE
--------------------------------------------------------------------------------
TBCC
Schedule to
Loan and Security Agreement
Borrower: LifeCell Corporation
Address: Xxx Xxxxxxxxx Xxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Date: December 6, 1999
This Schedule is an integral part of the Loan and Security Agreement between
TRANSAMERICA BUSINESS CREDIT CORPORATION ("TBCC") and the above borrower
("Borrower") of even date herewith.
Credit Limit (Section 1.1):
An amount (the "Credit Limit") not to exceed the lesser of
$6,000,000 OR the sum of (A) and (B) below:
(A) Revolving Loans. Loans (the "Revolving Loans") in an
----------------
amount not to exceed the Applicable Revolving Sublimit (as
defined below); PLUS
(B) Term Loans. Loans (each a "Term Loan" and collectively
----------
referred to as the "Term Loans") in an amount not to exceed
the Applicable Term Sublimit (as defined below) at any one
time outstanding.
The term "Applicable Revolving Sublimit" shall mean
----------------------------------
$3,000,000.
The term "Applicable Term Sublimit" shall mean (a)
-----------------------------
$3,000,000, if the NJEDA Guaranty (as defined below) is in
effect and has not been revoked and the NJEDA Participation
(as defined below) has been effected.
The term "NJEDA Guaranty" shall mean a guaranty by the New
-----------------
Jersey Economic Development Authority ("NJEDA") in favor of
TBCC, in such form, having such provisions and relating to
such aggregate amount of Borrower's debt as are acceptable
to TBCC in its discretion.
The term "NJEDA Participation" shall mean a participation by
---------------------
NJEDA in the Term Loans in such amounts and pursuant to such
documentation and agreements as are acceptable to TBCC in
its discretion.
TBCC SCHEDULE TO LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
Term Loans.
-----------
Each Term Loan shall be in the minimum amounts established
by TBCC from time to time. Term Loans may be drawn down
through March 15, 2000 only. Term Loans may not be repaid
and reborrowed.
Term Loans shall be repaid as follows: (i) interest only for
the period from the date on which any portion of the Term
Loan is disbursed through May 31, 2000; and (ii) thereafter,
with respect to the aggregate principal amount of
Term Loans outstanding, 30 equal amortized consecutive
monthly installments of principal and interest, commencing
on June 1, 2000 and continuing through and including
November 1, 2002.
Notwithstanding anything herein to the contrary, any unpaid
principal balance of the Term Loans and all sums due in
connection therewith shall be due in full on any termination
of this Loan Agreement for any reason.
At the request of TBCC, Borrower shall execute and deliver
Notes, on TBCC's standard form, evidencing the Term Loans.
2. Interest. (Section 2.1):
Revolving Loans: The interest rate in effect throughout each
---------------
calendar month during the term of this Agreement shall be
the highest "Base Rate" in effect during such month, plus
3.00% per annum, provided that the interest rate in effect
in each month shall not be less than 9.00% per annum, and
provided that the interest charged for each month with
respect to Revolving Loans shall be a minimum of $5,000,
regardless of the amount of the Obligations outstanding.
Interest shall be calculated on the basis of a 360-day year
for the actual number of days elapsed. "Base Rate" shall
mean the higher of (a) the highest prime, base or equivalent
rate of interest announced from time to time by Citibank,
N.A., First National Bank of Chicago and Bank of America
National Trust and Savings Association (which may not be the
lowest rate of interest charged by such bank) and (b) the
published annualized rate for 90-day dealer commercial paper
which appears in the "Money Rates" section of The Wall
Street Journal.
-2-
TBCC SCHEDULE TO LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
Term Loans: The Term Loans shall bear interest at the rate
----------
of 13.23% per annum; provided that TBCC shall have the right
to increase said interest rate applicable to a Term Loan, as
of the date any Term Loan is made, proportionally to any
increase in the weekly average of the interest rates of
three-year U.S. Treasury Securities (as published in the
Wall St. Journal) from the week ending October 1, 1999 to
the week preceding the date of disbursement of such Term
Loan.
3. Fees: Loan Fee (Section 2.2): $60,000, payable concurrently
herewith. TBCC agrees that any amounts outstanding after the
application of the application fee that the Borrower paid to
the costs and expenses hereunder shall be applied to the
foregoing loan fee.
Termination Fee (Section 1.6(b)): An amount equal to $4,000
multiplied by each month (or portion thereof) from the
effective date of termination to the Revolving Loan Maturity
Date, which Termination Fee shall be payable on the date of
termination, provided that the amount thereof shall not
exceed $24,000.
4. REVOLVING LOAN Maturity Date (Section 1.6):
December 30, 2000 (the "Maturity Date"), subject to
automatic renewal and early termination as provided in
Section 1.6 above.
5. Reporting (Section 5.10): Borrower shall provide TBCC with the following
reports:
(a) Quarterly Financial Statements. Quarterly unaudited
--------------------------------
financial statements, as soon as available, and in any event
within 45 days after the end of each fiscal quarter of
Borrower and copies of all statements, reports and notices
sent or made available generally by Borrower to its security
holders and all reports on Form 10-Q filed with the
Securities and Exchange Commission.
(b) Annual Financial Statements. As soon as available, but
---------------------------
not later than 90 days after the end of the Borrower's
fiscal year, copies of all statements, reports and notices
sent or made available generally by Borrower to its security
holders and all reports on Form 10-K filed with the
Securities and Exchange Commission.
6. Borrower Information:
(a) Prior Names of Borrower (Section 4.11): None
(b) Prior Trade Names of Borrower (Section 4.11): None
(c) Existing Trade Names of Borrower (Section 4.11): None
(d) Other Places of Business and Locations of Collateral
(Section 4.2): None
-3-
TBCC SCHEDULE TO LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
7. FACSIMILE NUMBERS:
Borrower: To be provided under separate letter
TBCC: 000-000-0000
8. CLOSING DEADLINE (Section 1.8): December 15, 1999
9. ADDITIONAL PROVISIONS:
(a) Guaranty; Participation. Borrower shall concurrently
------------------------
herewith cause NJEDA to deliver to TBCC the NJEDA Guaranty
and the NJEDA Participation.
(b) Warrants. The Borrower shall concurrently herewith issue
--------
to TBCC or its designee five-year warrants to purchase
84,211 shares of common stock of the Borrower, at an initial
exercise price of $4.75 per share, on TBCC's standard form
of warrant, together with anti-dilution protection and
registration rights relating thereto all as more
specifically set forth in such warrant agreement.
Borrower:
LifeCell Corporation
TBCC:
ANSAMERICA BUSINESS CREDIT CORPORATION
By By
------------------------------- --------------------------------
President or Vice President Title
--------------------------------
Form-10
Version: -4
-4-
REVOLVING NOTE
--------------------------------------------------------------------------------
REVOLVING CREDIT NOTE
$3,000,000 Chicago, Illinois December 6, 1999
FOR VALUE RECEIVED, LifeCell Corporation, a Delaware corporation having its
chief executive office and principal place of business at Xxx Xxxxxxxxx Xxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "Borrower"), hereby unconditionally and
absolutely promises to pay to the order of TRANSAMERICA BUSINESS CREDIT
CORPORATION, a Delaware corporation ("TBCC"), on the Maturity Date, at TBCC's
office at 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000, or at
such other location as TBCC may from time to time designate, in lawful money of
the United States of America and in immediately available funds, the principal
amount equal to $3,000,000 or such greater or lesser amount as represents the
aggregate unpaid principal amount of all Loans made by TBCC to the Borrower
under the revolving credit facility made available pursuant to the Loan and
Security Agreement between TBCC and Borrower dated December 6, 1999 (the "Loan
Agreement"). The Borrower further promises to pay interest in like money and
funds at TBCC's office specified above (or at such other location as TBCC may
from time to time designate) on the unpaid principal amount hereof from time to
time outstanding from and including the date hereof until paid in full (both
before and after judgment) at the rates and on the dates set forth in the Loan
Agreement. All capitalized terms used herein which are not defined herein shall
have the meanings ascribed to such terms in the Loan Agreement.
The holder of this Note is authorized to record the date and amount of each
Loan evidenced by this Note, the date and amount of each payment or prepayment
of principal hereof and the interest rate with respect thereto on a schedule
attached hereto, or on a continuation of such schedule attached hereto and made
a part hereof, and any such notation shall be conclusive and binding for all
purposes absent manifest error; provided, however, that the failure of TBCC to
-------- -------
make any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Loan Agreement.
Whenever any payment to be made hereunder shall be stated to be due on a
day that is not a Business Day, the payment may be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the amount of interest due hereunder.
This Note is entitled to the benefit of all terms and conditions of, and
the security of all security interests, liens, mortgages, deeds of trust and
rights granted pursuant to, the Loan Agreement and the other Loan Documents, and
is subject to optional and mandatory prepayment as provided therein.
Upon the occurrence of any one or more Events of Default, all amounts then
remaining unpaid on this Note may be declared to be or may automatically become
immediately due and payable as provided in the Loan Agreement.
The Borrower acknowledges that the holder of this Note may assign, transfer
or sell all or a portion of its rights and interests to and under this Note to
one or more Persons as provided in the Loan Agreement and that such Persons
shall thereupon become vested with all of the rights and benefits of TBCC in
respect hereof as to all or that portion of this Note which is so assigned,
transferred or sold.
In the event of any conflict between the terms hereof and the terms and
provisions of the Loan Agreement, the terms and provisions of the Loan Agreement
shall control.
The Borrower and all other parties that at any time may be liable hereupon
in any capacity, jointly or severally, waive presentment, demand for payment,
protest and notice of dishonor of this Note and authorize the holder hereof,
without notice, to increase or decrease the rate of interest on any amount owing
2
TBCC REVOLVING CREDIT NOTE
--------------------------------------------------------------------------------
under this Note in accordance with the Loan Agreement. The Borrower further
waives promptness, diligence, notice of acceptance and any other notice with
respect to any of the Obligations and any requirement that TBCC exhaust any
rights or take any action against any other Person or any collateral. The
Borrower further hereby waives notice of or proof of reliance by TBCC upon this
Note, and the Obligations shall conclusively be deemed to have been created,
contracted, incurred, renewed, extended, amended or waived in reliance upon this
Note. The Borrower shall make all payments hereunder and under the Loan
Agreement without defense, offset or counterclaim. No failure to exercise and no
delay in exercising any rights hereunder on the part of the holder hereof shall
operate as a waiver of such rights. This Note may not be changed orally, but
only by an agreement in writing, which is signed by the party or parties against
whom enforcement of any waiver, change, modification or discharge is sought.
THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS NOTE AND THE OTHER
LOAN DOCUMENTS AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS NOTE,
WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE GOVERNED BY
THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAW PROVISIONS) AND DECISIONS
OF THE STATE OF ILLINOIS.
ALL DISPUTES ARISING UNDER OR IN CONNECTION WITH THIS NOTE AND ANY OTHER
LOAN DOCUMENT BETWEEN THE BORROWER AND TBCC, WHETHER SOUNDING IN CONTRACT, TORT,
EQUITY OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE AND FEDERAL COURTS LOCATED
IN CHICAGO, ILLINOIS, AND THE COURTS TO WHICH AN APPEAL THEREFROM MAY BE TAKEN;
PROVIDED, HOWEVER, THAT TBCC SHALL HAVE THE RIGHT, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN ANY LOCATION
REASONABLY SELECTED BY TBCC IN GOOD FAITH TO ENABLE TBCC TO REALIZE ON SUCH
PROPERTY, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF TBCC. THE
BORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS, SETOFFS OR
CROSS-CLAIMS IN ANY PROCEEDING BROUGHT BY TBCC. THE BORROWER WAIVES ANY
OBJECTION THAT THE BORROWER MAY HAVE TO THE LOCATION OF THE COURT IN WHICH TBCC
HAS COMMENCED A PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON FORUM NON CONVENIENS.
THE BORROWER HEREBY IRREVOCABLY DESIGNATES CT CORPORATION SYSTEM, 0000
XXXXXX XXXXXX, XXXXXXXXXX, XXXXXXXX 00000 AS THE DESIGNEE AND AGENT OF THE
BORROWER TO RECEIVE, FOR AND ON BEHALF OF THE BORROWER SERVICE OF PROCESS IN ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS NOTE OR ANY OTHER LOAN DOCUMENT.
IT IS UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON SUCH AGENT AT ITS ADDRESS
WILL BE PROMPTLY FORWARDED BY MAIL TO THE BORROWER, BUT THE FAILURE OF THE
BORROWER TO RECEIVE SUCH COPY SHALL NOT AFFECT IN ANY WAY THE SERVICE OF SUCH
PROCESS. NOTHING HEREIN SHALL AFFECT THE RIGHT OF TBCC TO SERVE LEGAL PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW.
THE BORROWER AND, BY ITS ACCEPTANCE HEREOF, TBCC EACH hereby waive the
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF,
OR IN ANY WAY RELATING TO: (I) THIS NOTE; OR (II) ANY OTHER PRESENT OR FUTURE
TBCC REVOLVING CREDIT NOTE
--------------------------------------------------------------------------------
INSTRUMENT OR AGREEMENT BETWEEN TBCC AND BORROWER; OR (III) ANY CONDUCT, ACTS OR
OMISSIONS OF TBCC OR BORROWER OR ANY OF THEIR DIRECTORS, OFFICERS, EM-PLOYEES,
AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH TBCC OR BORROWER; IN
EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
LifeCell Corporation
By:
------------------------------
Title:
---------------------------
3
SCHEDULE
TO REVOLVING CREDIT NOTE
DATED December 6, 1999
OF LifeCell Corporation TO
TRANSAMERICA BUSINESS CREDIT CORPORATION
Date Amount of Loan Interest Rate Amount of Principal Paid Unpaid Principal Balance Notation Made by
---- -------------- ------------- ------------------------ ------------------------ ----------------
4
TERM NOTE
5
RESOLUTION
--------------------------------------------------------------------------------
CORPORATE RESOLUTION TO BORROW
RESOLVED, that this corporation, LIFECELL CORPORATION, a Delaware
corporation, borrow from TRANSAMERICA BUSINESS CREDIT CORPORATION ("TBCC"), from
time to time, such sum or sums of money as, in the judgment of the officers
hereinafter authorized, this corporation may require.
RESOLVED FURTHER, that any officer of this corporation (hereinafter
"authorized officers") be, and they hereby are authorized, directed and
empowered, in the name of this corporation, to execute and deliver to TBCC, and
TBCC is requested to accept, the loan agreements, security agreements, notes,
financing statements, and other documents and instruments evidencing and/or
securing the indebtedness of this corporation for the monies so borrowed, or to
be borrowed, with interest thereon, and said authorized officers are authorized
from time to time to execute renewals, extensions and/or amendments of said loan
agreements, security agreements, and other documents and instruments.
RESOLVED FURTHER, that said authorized officers be and they are hereby
authorized, directed and empowered, as security for any notes or any other
indebtedness of this corporation to TBCC, whether arising pursuant to this
resolution or otherwise, to grant, transfer, pledge, mortgage, assign, or
otherwise hypothecate to TBCC, or deed in trust for its benefit, any property of
any and every kind, belonging to this corporation, including, but not limited
to, any and all real property, accounts, inventory, equipment, general
intangibles, instruments, documents, chattel paper, notes, money, deposit
accounts, furniture, fixtures, goods and all other property, of every kind, and
to execute and deliver to TBCC any and all grants, transfers, trust receipts,
loan or credit agreements, pledge agreements, mortgages, deeds of trust,
financing statements, security agreements and other hypothecation agreements,
which said instruments and the note or notes and other instruments referred to
in the preceding paragraph may contain such provisions, covenants, recitals and
agreements as TBCC may require and said authorized officers may approve, and the
execution thereof by said authorized officers shall be conclusive evidence of
such approval.
RESOLVED FURTHER, that any and all acts of the authorized officers of this
corporation done or made heretofore in connection with the borrowing of money
from TBCC, including, but not limited to: the execution of all instruments
evidencing the indebtedness of this corporation for monies so borrowed and
renewals or extensions thereof, and the grant, transfer, pledge, mortgage,
assignment, or any other hypothecation, or deed in trust of any property
belonging to this corporation as security for the indebtedness of this
corporation, to TBCC and the delivery of all instruments related thereto to
TBCC, are hereby ratified, approved and confirmed.
RESOLVED FURTHER, that any bank, banker or trust company be and it hereby
is, authorized and requested to receive for deposit to the credit of TBCC
without further inquiry, all checks, drafts and other instruments for the
payment of money payable to this corporation or its order, and that said bank,
banker, or trust company shall be under no liability to this corporation for the
disposition which TBCC may or shall make of said instruments or the proceeds
thereof, and that any officer or agent of TBCC is hereby authorized and
empowered to endorse the name of this corporation to any and all checks, drafts,
and other instruments payable to this corporation or its order.
Warrants
--------
RESOLVED FURTHER, that, in connection with the foregoing loans, this
corporation shall issue to TBCC Funding Trust II, a Delaware business trust
five-year warrants to purchase 84,211 shares of common stock of this
corporation, at $4.75 per share, on the terms and provisions of TBCC's standard
form Warrant to Purchase Stock and related documents (including without
limitation registration rights agreements and anti-dilution agreements), with
such changes therein as TBCC and this corporation shall agree; any officer of
this corporation is hereby authorized to execute and deliver such Warrant to
Purchase Stock and related documents, and all documents and instruments relating
thereto, in such form and containing such additional provisions as said
authorized officers may approve, and the execution thereof by said authorized
officers shall be conclusive evidence of such approval.
RESOLVED FURTHER, that TBCC is authorized to act upon this resolution until
written notice of its revocation is delivered to, and actually received by,
TBCC, and that the authority hereby granted shall apply with equal force and
effect to the successors in office of the officers herein named.
I, Secretary of LIFECELL CORPORATION, a corporation, incorporated under and
by virtue of the laws of the State of Delaware, do hereby certify that the
foregoing is a full, true and correct copy of resolutions duly and regularly
adopted by the Board of Directors of said corporation as required by law, and by
the by-laws of said corporation.
I further certify that said resolutions are still in full force and effect
and have not been in any way modified, repealed, rescinded, amended or revoked,
and that the following are the names and specimen signatures of the officers and
agents of said corporation:
Name Office Signature
----------------------- ----------------------- -----------------------------
----------------------- ----------------------- -----------------------------
----------------------- ----------------------- -----------------------------
----------------------- ----------------------- -----------------------------
IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary and
affixed the corporate seal of said corporation on December 6, 1999.
--------------------------------
Secretary of Said Corporation
13,746
2
OPINION
--------------------------------------------------------------------------------
[FORM OF TERM NOTE]
-------------------
PROMISSORY NOTE
---------------
$ Date:
---------------- -----------------
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
Transamerica Business Credit Corporation or its assigns (the "Payee") at its
office located at Riverway II, West Office Tower, 0000 Xxxx Xxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, or at such other place as the Payee or the holder
hereof may designate in writing, the principal amount of $ ___________ received
by the undersigned, plus interest, in lawful money of the United States and in
immediately available funds.
This Note is executed and delivered pursuant to the Loan and Security
Agreement between TBCC and Borrower dated DECEMBER 6, 1999 (as amended from time
to time, the "Loan Agreement"). This Note shall be payable commencing with a
first installment of $_____________ per month payable on MAY 1, 2000 and
continuing on the same day of each succeeding month until DECEMBER 1, 2002, on
which date the entire unpaid principal balance of this Note, plus all accrued
interest shall be due and payable; provided that the entire unpaid principal
balance of this Note, plus all accrued interest shall be due and payable on the
date the Loan Agreement terminates by its terms or is terminated by either
party. The Borrower further promises to pay interest in like money and funds at
TBCC's office specified above (or at such other location as TBCC may from time
to time designate) on the unpaid principal amount hereof from time to time
outstanding from and including the date hereof until paid in full (both before
and after judgment) at the rates and on the dates set forth in the Loan
Agreement. All capitalized terms used herein which are not defined herein shall
the meanings ascribed to such terms in the Loan Agreement.
This Note is one of the Notes regarding Term Loans referred to in the
Schedule the Loan and Security Agreement dated as of December 6, 1999 (as
amended, supplemented or otherwise modified from time to time, the "Agreement")
between the undersigned and the Payee and is subject and entitled to all
provisions and benefits thereof. Capitalized terms used but not defined herein
shall have the meanings set forth in the Agreement.
If any installment of this Note is not paid within five days after its due
date, the undersigned agrees to pay on demand, in addition to the amount of such
installment, an amount equal to 5% of such installment, but only to the extent
permitted by Applicable Law.
The undersigned shall have the right to prepay this Note in the aggregate
principal amount outstanding hereunder together with all accrued and unpaid
interest thereon, fees and all other amounts payable relating thereto plus the
following (the "Prepayment Special Amount"): (1) if any such prepayment is made
during the first year after the date hereof, the undersigned shall also pay an
amount equal to 3% of the principal amount outstanding hereunder; and (2) if any
such prepayment is made during the second year after the date hereof, the
undersigned shall also pay an amount equal to 2% of the principal amount
outstanding hereunder. No Prepayment Special Amount is applicable with the
period beginning as of the date of the second anniversary hereof and after.
Further, and notwithstanding the foregoing, if the Warrant Special Condition (as
defined below) occurs at the time of any such prepayment, then no Prepayment
Special Amount is applicable regardless of the date of any such prepayment. As
used herein the term "Warrant" shall mean the Stock Subscription Warrant dated
December 6, 1999 executed by the undersigned in favor of TBCC Funding Trust II,
as amended or otherwise modified from time to time. If the per share current
market price of the common stock of the undersigned as of the date of the
prepayment is greater than two times the Warrant Price (as defined in the
Warrant), then such an occurrence shall constitute the "Warrant Special
Condition".
Upon the maturity of this Note or the acceleration of the maturity of this
Note in accordance with the terms of the Agreement, the entire unpaid principal
amount on this Note, together with all interest, fees and other amounts payable
hereon or in connection herewith (including without limitation the Prepayment
Special Amount referred to in the preceding paragraph), shall be immediately due
and payable without further notice or demand, with interest on all such amounts
at a rate not to exceed the lawful limit, from the date of such maturity or
acceleration, as the case may be, until all such amounts have been paid.
If any payment on this Note becomes payable on a day other than a Business
Day, the maturity thereof shall be extended to the next succeeding Business Day.
The undersigned hereby waives diligence, demand, presentment, protest and
notice of any kind, and assents to extensions of the time of payment, release,
surrender or substitution of security, or forbearance or other indulgence,
without notice. The undersigned agrees to pay all amounts under this Note
without offset, deduction, claim, counterclaim, defense or recoupment, all of
which are hereby waived.
The Payee, the undersigned and any other parties to the Loan Documents
intend to contract in strict compliance with applicable usury law from time to
time in effect. In furtherance thereof such Persons stipulate and agree that
none of the terms and provisions contained in the Loan Documents shall ever be
construed to create a contract to pay, for the use, forbearance or detention of
money, interest in excess of the maximum amount of interest permitted to be
charged by Applicable Law from time to time in effect. Neither the undersigned
nor any present or future guarantors, endorsers, or other Persons hereafter
becoming liable for payment of any Obligation shall ever be liable for unearned
interest thereon or shall ever be required to pay interest thereon in excess of
the maximum amount that may be lawfully charged under Applicable Law from time
to time in effect, and the provisions of this paragraph shall control over all
other provisions of the Loan Documents which may be in conflict or apparent
conflict herewith. The Payee expressly disavows any intention to charge or
collect excessive unearned interest or finance charges in the event the maturity
of any Obligation is accelerated. If (a) the maturity of any Obligation is
accelerated for any reason, (b) any Obligation is prepaid and as a result any
amounts held to constitute interest are determined to be in excess of the legal
maximum, or (c) the Payee or any other holder of any or all of the Obligations
shall otherwise collect amounts which are determined to constitute interest
which would otherwise increase the interest on any or all of the Obligations to
an amount in excess of that permitted to be charged by Applicable Law then in
effect, then all sums determined to constitute interest in excess of such legal
limit shall, without penalty, be promptly applied to reduce the then outstanding
principal of the related Obligations or, at the Payee's or such holder's option,
promptly returned to the undersigned upon such determination. In determining
whether or not the interest paid or payable, under any specific circumstance,
exceeds the maximum amount permitted under Applicable Law, the Payee and the
undersigned (and any other payors thereof) shall to the greatest extent
permitted under Applicable Law, (i) characterize any non-principal payment as an
expense, fee or premium rather than as interest, (ii) exclude voluntary
prepayments and the effects thereof, and (iii) amortize, prorate, allocate, and
spread the total amount of interest through the entire contemplated term of this
Note in accordance with the amount outstanding from time to time thereunder and
the maximum legal rate of interest from time to time in effect under Applicable
Law in order to lawfully charge the maximum amount of interest permitted under
Applicable Law. As used herein, "Applicable Law" means the laws of the State of
Illinois (or any other jurisdiction whose laws are mandatorily applicable
notwithstanding the parties' choice of Illinois law) or the laws of the United
States of America, whichever laws allow the greater interest, as such laws now
exist or may be changed or amended or come into effect in the future.
This Note may not be changed, modified or terminated orally, but only by an
agreement in writing signed by the undersigned and the Payee or any holder
hereof.
The undersigned shall, upon demand, pay to the Payee all costs and expenses
incurred by the Payee (including the fees and disbursements of counsel and other
professionals) in connection with the preparation, execution and delivery of
this Note and all other Loan Documents, and in connection with the
administration, modification and amendment of the Loan Documents, and pay to the
Payee all costs and expenses (including the fees and disbursements of counsel
and other professionals) paid or incurred by the Payee in (A) enforcing or
defending its rights under or in respect of this Note or any of the other Loan
Documents, (B) collecting any of the liabilities by the undersigned to the Payee
or otherwise administering the Loan Documents, (C) foreclosing or otherwise
collecting upon any collateral and (D) obtaining any legal, accounting or other
advice in connection with any of the foregoing.
This Note shall be binding upon the successors and assigns of the
undersigned and inure to the benefit of the Payee and its successors, endorsees
and assigns. If any term or provision of this Note shall be held invalid,
illegal or unenforceable, the validity of all other terms and provisions hereof
shall in no way be affected thereby.
EACH OF THE UNDERSIGNED AND, BY ITS ACCEPTANCE HEREOF, THE PAYEE HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE
ARISING UNDER OR RELATING TO THIS NOTE AND AGREES THAT ANY SUCH DISPUTE SHALL BE
TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
LifeCell Corporation.
By:
---------------------------
Name:
Title:
Form17
--------------------------------------------------------------------------------
TBCC shall have the right to terminate the Streamlined Provisions, upon ___ days
prior written notice to Borrower. In addition, the
TBCC
STREAMLINED FACILITY AGREEMENT
December 6, 1999
LifeCell Corporation
Xxx Xxxxxxxxx Xxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
This Streamlined Facility Agreement (this "Agreement") is entered into
between Transamerica Business Credit Corporation ("TBCC"), and LifeCell
Corporation ("Borrower"), in connection with the Loan and Security Agreement
between TBCC and Borrower dated December 6, 1999 (the "Loan Agreement"). (This
Agreement, the Loan Agreement, and all other written documents and agreements
between TBCC and Borrower are referred to herein collectively as the "Loan
Documents". Capitalized terms used but not defined in this Agreement, shall
have the meanings set forth in the Loan Agreement.)
This will confirm our agreement that the following provisions (the
"Streamlined Provisions") shall apply, effective on the date hereof, until
terminated as provided below:
1. [Reserved]
2. Delivery of the proceeds of Receivables within one Business Day after
receipt, as called for by Section 1.4 of the Loan Agreement, will not be
required.
3. TBCC will also not require any Depository Account Agreement or Blocked
Account Agreement, as called for by Section 1.8 of the Loan Agreement. In
addition, Borrower will not be required to provide TBCC with copies of invoices
to customers or shipping and delivery receipts, as called for by Section 3.3(a)
of the Loan Agreement, or to report customer credits, returns and recoveries of
merchandise as called for by Section 3.3(b) of the Loan Agreement.
The Streamlined Provisions shall immediately terminate if any Default or
Event of Default occurs and is continuing. Upon any termination of the
Streamlined Provisions, without limiting TBCC's other rights and remedies,
Borrower shall, then and thereafter, provide TBCC with such other or additional
reporting of Receivables as TBCC shall request under Section 3.3(a) of the Loan
Agreement, comply in all respects with Section 3.3(b), and deliver all proceeds
of Receivables to TBCC, within one Business Day after receipt, as called for by
Section 1.4 of the Loan Agreement. Additionally, Borrower and its bank shall
execute and deliver a Blocked Account Agreement or Depository Account Agreement
(as TBCC shall designate), in form and substance satisfactory to TBCC.
Please confirm your agreement to the foregoing by signing the enclosed copy of
this Agreement and returning it to us.
Sincerely yours,
Transamerica Business Credit Corporation
By By
------------------------- -------------------------
Title Title
------------------------- -------------------------
Acknowledged and Agreed.
LifeCell Corporation
By By
------------------------- -------------------------
Title Title
------------------------- -------------------------
SECURITY AGREEMENT IN COPYRIGHTED WORKS
This Security Agreement In Copyrighted Works (this "Agreement") is made at
Chicago, Illinois as of December 6, 1999, is entered into between LifeCell
Corporation, a Delaware corporation ("Grantor"), which has a mailing address at
Xxx Xxxxxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, and TRANSAMERICA BUSINESS
CREDIT CORPORATION, a Delaware corporation, ("TBCC") having its principal office
at 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000 and having an
office at 00000 Xxxxxxx Xxxx., Xxxxx 0000, Xxxxxxx Xxxx, Xxxxxxxxxx 00000.
RECITALS
A. TBCC is providing financing to Grantor pursuant to the Loan and
Security Agreement of even date herewith between TBCC and Grantor (as amended
from time to time, the "Loan Agreement"). Pursuant to the Loan Agreement,
Grantor has granted to TBCC a security interest in all of Grantor's present and
future assets, including without limitation all of Grantor's present and future
general intangibles, and including without limitation the "Copyrights" (as
defined below), to secure all of its present and future indebtedness,
liabilities, guaranties and other obligations to TBCC.
B. To supplement TBCC's rights in the Copyrights, Grantor is executing
and delivering this Agreement.
NOW, THEREFORE, for valuable consideration, Grantor agrees as follows:
1. Assignment. To secure the complete and timely payment and
performance of all "Obligations" (as defined in the Loan Agreement), and without
limiting any other security interest Grantor has granted to TBCC, Grantor hereby
hypothecates to TBCC and grants, assigns, and conveys to TBCC a security
interest in Grantor's entire right, title, and interest in and to all of the
following, now owned and hereafter acquired (collectively, the "Collateral"):
(a) Registered Copyrights and Applications for Copyright Registrations.
All of Grantor's present and future United States registered copyrights and
copyright registrations, including, without limitation, the registered
copyrights listed in Schedule A to this Agreement (and including all of the
exclusive rights afforded a copyright registrant in the United States under 17
U.S.C. 106 and any exclusive rights which may in the future arise by act of
Congress or otherwise) and all of Grantor's present and future applications for
copyright registrations (including applications for copyright registrations of
derivative works and compilations) (collectively, the "Registered Copyrights"),
and any and all royalties, payments, and other amounts payable to Grantor in
connection with the Registered Copyrights, together with all renewals and
extensions of the Registered Copyrights, the right to recover for all past,
present, and future infringements of the Registered Copyrights, and all computer
programs, computer databases, computer program flow diagrams, source codes,
object codes and all tangible property embodying or incorporating the Registered
Copyrights, and all other rights of every kind whatsoever accruing thereunder or
pertaining thereto.
(b) Unregistered Copyrights. All of Grantor's present and future
copyrights which are not registered in the United States Copyright Office (the
"Unregistered Copyrights"), whether now owned or hereafter acquired, including
without limitation the Unregistered Copyrights listed in Schedule B to this
Agreement, and any and all royalties, payments, and other amounts payable to
Grantor in connection with the Unregistered Copyrights, together with all
renewals and extensions of the Unregistered Copyrights, the right to recover for
all past, present, and future infringements of the Unregistered Copyrights, and
all computer programs, computer databases, computer program flow diagrams,
source codes, object codes and all tangible property embodying or incorporating
the Unregistered Copyrights, and all other rights of every kind whatsoever
accruing thereunder or pertaining thereto. The Registered Copyrights and the
Unregistered Copyrights collectively are referred to herein as the "Copyrights."
(c) Licenses. All of Grantor's right, title and interest in and to any
and all present and future license agreements with respect to the Copyrights,
including without limitation the license agreements listed in Schedule C to this
Agreement (the "Licenses").
(d) Accounts Receivable. All present and future accounts, accounts
receivable and other rights to payment arising from, in connection with or
relating to the Copyrights.
(e) Proceeds. All cash and non-cash proceeds of any and all of the
foregoing.
2. Representations. Grantor represents and warrants that:
(a) Each of the Copyrights is valid and enforceable (except to the
extent that the Unregistered Copyrights must be registered to be enforced);
(b) Except for the security interest granted hereby and the
non-exclusive licenses granted to Grantor's licensees with respect to the
Copyrights in the ordinary course of business of Grantor, Grantor is (and upon
creation of all future Copyrights, will be) the sole and exclusive owner of the
entire and unencumbered right, title, and interest in and to each of the
Copyrights and other Collateral, free and clear of any liens, charges, or
encumbrances;
(c) There is no pending claim that the use of any of the Copyrights
does or may infringe upon or violate the rights of any third person nor does
Grantor have knowledge of any pending or threatened infringement of any of the
Copyrights by any third person. (d) Listed on Schedules A and B are all
copyrights owned by Grantor, in which Grantor has an interest, or which are used
in Grantor's business.
(e) Listed on Schedule C are all Licenses to which Grantor is a party.
(f) Each employee, agent and/or independent contractor who has
participated in the creation of the property constituting the Collateral has
either executed an assignment of his or her rights of authorship to Grantor or
is an employee of Grantor acting within the scope of his or her employment and
was such an employee at the time of said creation.
(g) All of Grantor's present and future software, computer programs
and other works of authorship subject to United States copyright protection, the
sale, licensing or other disposition of which results in royalties receivable,
license fees receivable, accounts receivable or other sums owing to Grantor
(collectively, "Receivables"), have been and shall be registered with the United
States Copyright Office prior to the date Grantor requests or accepts any loan
from TBCC with respect to such Receivables and prior to the date Grantor
includes any such Receivables in any accounts receivable aging, borrowing base
report or certificate or other similar report provided to TBCC, and Grantor
shall provide to TBCC copies of all such registrations promptly upon the receipt
of the same.
3. Covenants. Until all of the Obligations have been satisfied in full
and the Loan Agreement has terminated:
(a) Grantor shall not grant a security interest in any of the
Copyrights or other Collateral to any other person and shall not enter into any
agreement or take any action that is inconsistent with Grantor's obligations
hereunder or Grantor's other Obligations or would impair TBCC's rights, under
this Agreement or otherwise, without TBCC's prior written consent.
(b) Grantor shall ensure that each use of the Copyrights described in
Section 1 of this Agreement carries a complete and accurate copyright notice.
(c) Grantor shall use its best efforts to preserve and defend
Grantor's rights in the Copyrights unless Grantor, with the concurrence of TBCC,
reasonably determines that a Copyright is not worth preserving or defending.
(d) Grantor shall undertake all reasonable measures to cause its
employees, agents and independent contractors to assign to Grantor all rights of
authorship to any copyrighted material in which Grantor has or may subsequently
acquire any right or interest.
4. License Rights. Grantor may license or sublicense the Copyrights only
in the ordinary course of business and only on a non-exclusive basis, and only
to the extent of Grantor's rights and subject to TBCC's security interest and
Grantor's obligations under this Agreement.
5. TBCC May Supplement. Grantor authorizes TBCC to modify this
Agreement by amending Schedule A or B to include any future copyrights to be
included in the Copyrights. Grantor shall from time to time update the lists of
Registered Copyrights and Unregistered Copyrights on Schedules A and B and lists
of License Agreements on Schedule C as Grantor obtains or acquires copyrights or
grants or obtains licenses in the future. Notwithstanding the foregoing, no
failure to so modify this Agreement or amend Schedules A or B or C shall in any
way affect, invalidate or detract from TBCC's continuing security interest in
all Copyrights, whether or not listed on Schedule A or B and all license
agreements whether or not listed on Schedule C.
6. Default. Upon an Event of Default (as defined in the Loan Agreement)
TBCC shall have, in addition to all of its other rights and remedies under the
Loan Agreement, all rights and remedies of a secured party under the Uniform
Commercial Code (as enacted in any jurisdiction in which the Copyrights or other
Collateral are located or deemed to be located) or other applicable law. Upon
occurrence of an Event of Default, Grantor shall, upon request of TBCC, give
written notice to all parties to the Licenses that all payments thereunder shall
be made to TBCC, and TBCC may itself give such notice.
7. Fees and Expenses. On demand by TBCC, without limiting any of the terms
of the Loan Agreement, Grantor shall pay all reasonable fees, costs, and
expenses (including without limitation reasonable attorneys' fees and legal
expenses) incurred by TBCC in connection with (a) preparing this Agreement and
all other documents relating to this Agreement, (b) consummating this
transaction, (c) filing or recording any documents (including all taxes in
connection therewith) in public offices; and (d) paying or discharging any
taxes, counsel fees, maintenance fees, encumbrances, or other amounts in
connection with protecting, maintaining, or preserving the Copyrights or
defending or prosecuting any actions or proceedings arising out of or related to
the Copyrights.
8. TBCC's Rights. In the event that Grantor fails to use its best efforts
to preserve and defend Grantor's rights in the Copyrights (except as permitted
by paragraph 3(c) hereof) within a reasonable period of time after learning of
the existence of any actual or threatened infringement thereof, upon twenty (20)
days' prior written notice to Grantor, TBCC shall have the right, but shall in
no way be obligated to, bring suit or take any other action, in its own name or
in Grantor's name, to enforce or preserve TBCC's or Grantor's rights in the
Copyrights. Grantor shall at the request of TBCC and at Grantor's expense do
any lawful acts and execute any documents requested by TBCC to assist with such
enforcement. In the event Grantor has not taken action to enforce or preserve
TBCC's and Grantor's rights in the Copyrights and TBCC thereupon takes such
action, Grantor, upon demand, shall promptly reimburse and indemnify TBCC for
all costs and expenses incurred in the exercise of TBCC's or Grantor's rights
under this Section 8.
9. No Waiver. No course of dealing between Grantor and TBCC, nor any
failure to exercise nor any delay in exercising, on the part of TBCC, any right,
power, or privilege under this Agreement or under the Loan Agreement or any
other agreement, shall operate as a waiver. No single or partial exercise of
any right, power, or privilege under this Agreement or under the Loan Agreement
or any other agreement by TBCC shall preclude any other or further exercise of
such right, power, or privilege or the exercise of any other right, power, or
privilege by TBCC.
10. Rights Are Cumulative. All of TBCC's rights and remedies with respect
to the Copyrights and other Collateral whether established by this Agreement,
the Loan Agreement, or any other documents or agreements, or by law shall be
cumulative and may be exercised concurrently or in any order.
11. Copyright Office. At the request of TBCC, Grantor shall execute any
further documents necessary or appropriate to create and perfect TBCC's security
interest in the Copyrights, including without limitation any documents for
filing with the United States Copyright Office and/or any applicable state
office. TBCC may record this Agreement, an abstract thereof, or any other
document describing TBCC's interest in the Copyrights with the United States
Copyright Office, at the expense of Grantor.
12. Indemnity. Grantor shall protect, defend, indemnify, and hold harmless
TBCC and TBCC's assigns from all liabilities, losses, and costs (including
without limitation reasonable attorneys' fees) incurred or imposed on TBCC
relating to the matters in this Agreement, including, without limitation, in
connection with TBCC's defense of any infringement action brought by a third
party against TBCC.
13. Severability. The provisions of this Agreement are severable. If any
provision of this Agreement is held invalid or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such provision, or part thereof, in such jurisdiction, and shall not in any
manner affect such provision or part thereof in any other jurisdiction, or any
other provision of this Agreement in any jurisdiction.
14. Amendments; Entire Agreement. This Agreement is subject to modification
only by a writing signed by the parties, except as provided in Section 5 of this
Agreement. To the extent that any provision of this Agreement conflicts with
any provision of the Loan Agreement, the provision giving TBCC greater rights or
remedies shall govern, it being understood that the purpose of this Agreement is
to add to, and not detract from, the rights granted to TBCC under the Loan
Agreement. This Agreement, the Loan Agreement, and the documents relating
thereto comprise the entire agreement of the parties with respect to the matters
addressed in this Agreement.
15. Further Assurances. At TBCC's request, Grantor shall execute and
deliver to TBCC any further instruments or documentation, and perform any acts,
that may be reasonably necessary or appropriate to implement this Agreement, the
Loan Agreement or any other agreement, and the documents relating thereto,
including without limitation any instrument or documentation reasonably
necessary or appropriate to create, maintain, perfect, or effectuate TBCC's
security interests in the Copyrights or other Collateral.
16. Release. At such time as Grantor shall completely satisfy all of the
Obligations and the Loan Agreement shall be terminated, TBCC shall execute and
deliver to Grantor all assignments and other instruments as may be reasonably
necessary or proper to terminate TBCC's security interest in the Copyrights,
subject to any disposition of the Copyrights which may have been made by TBCC
pursuant to this Agreement. For the purpose of this Agreement, the Obligations
shall be deemed to continue if Grantor enters into any bankruptcy or similar
proceeding at a time when any amount paid to TBCC could be ordered to be repaid
as a preference or pursuant to a similar theory, and shall continue until it is
finally determined that no such repayment can be ordered.
17. True and Lawful Attorney. Grantor hereby appoints TBCC as Grantor's
true and lawful attorney, with full power of substitution, to do any or all of
the following, in the name, place and stead of Grantor: (a) execute an abstract
of this Agreement or any other document describing TBCC's interest in the
Copyrights, for filing with the United States Copyright Office; (b) execute any
modification of this Agreement pursuant to Section 5 of this Agreement; and (c)
following an Event of Default (as defined in the Loan Agreement) execute any
assignments, notices or transfer documents for purposes of transferring title or
right to receive any of the Copyrights or other Collateral to any person,
including without limitation TBCC.
18. Successors. The benefits and burdens of this Agreement shall inure to
the benefit of and be binding upon the respective successors and permitted
assigns of the parties; provided that Grantor may not transfer any of the
Collateral or any rights hereunder, without the prior written consent of TBCC,
except as specifically permitted hereby.
19. Governing Law. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF
THIS AGREEMENT AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE
GOVERNED BY THE INTERNAL LAWS AND DECISIONS OF THE STATE OF ILLINOIS. ALL
DISPUTES BETWEEN THE GRANTOR AND TBCC, WHETHER SOUNDING IN CONTRACT, TORT,
EQUITY OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE AND FEDERAL COURTS LOCATED
IN CHICAGO, ILLINOIS, AND THE COURTS TO WHICH AN APPEAL THEREFROM MAY BE TAKEN;
PROVIDED, HOWEVER, THAT TBCC SHALL HAVE THE RIGHT, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TO PROCEED AGAINST THE GRANTOR OR ITS PROPERTY IN ANY LOCATION
REASONABLY SELECTED BY TBCC IN GOOD FAITH TO ENABLE TBCC TO REALIZE ON SUCH
PROPERTY, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF TBCC. THE
GRANTOR AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS, SETOFFS OR
CROSS-CLAIMS IN ANY PROCEEDING BROUGHT BY TBCC. THE GRANTOR WAIVES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH TBCC HAS
COMMENCED A PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON FORUM NON CONVENIENS.
20. WAIVER OF RIGHT TO JURY TRIAL. TBCC AND GRANTOR EACH HEREBY WAIVE
THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT
OF, OR IN ANY WAY RELATING TO: (I) THIS AGREEMENT; OR (II) ANY OTHER PRESENT OR
FUTURE INSTRUMENT OR AGREEMENT BETWEEN TBCC AND GRANTOR; OR (III) ANY CONDUCT,
ACTS OR OMISSIONS OF TBCC OR GRANTOR OR ANY OF THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH TBCC OR
GRANTOR; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE.
WITNESS the execution hereof as of the date first written above.
Grantor:
LifeCell Corporation
By:
---------------------------------------
Name (please print):
------------------------------------
Title:
------------------------------------
Chairman of the Board,
President, or Vice President
Accepted.
TBCC:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By:
----------------------------------------
Name (please print):
-------------------------------------------
Title:
-------------------------------------
Schedule A
to
Security Agreement in Copyrighted Works
LifeCell Corporation
Registered Copyrights
U.S. Copyrights
TITLE OF WORK/YEAR REGISTRATION DATE
OF CREATION NUMBER OF ISSUANCE
Schedule B
to
Security Agreement in Copyrighted Works
LifeCell Corporation
Unregistered Copyrights
(Where No Copyright Application Is Pending)
Copyright Description
See attached list of software applications.
Schedule C
to
Security Agreement in Copyrighted Works
LifeCell Corporation
License Agreements
--------------------------------------------------------------------------------
PATENT AND TRADEMARK SECURITY AGREEMENT
This PATENT AND TRADEMARK SECURITY AGREEMENT ("Agreement"), dated as of December
6, 1999, is entered into between LifeCell Corporation, a Delaware corporation
("Grantor"), which has a mailing address at Xxx Xxxxxxxxx Xxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000, and TRANSAMERICA BUSINESS CREDIT CORPORATION, a Delaware
corporation, ("TBCC") having its principal office at 0000 Xxxx Xxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000 and having an office at 00000 Xxxxxxx Xxxx.,
Xxxxx 0000, Xxxxxxx Xxxx, Xxxxxxxxxx 00000.
RECITALS
A. Grantor and TBCC are, contemporaneously herewith, entering into that
certain Loan and Security Agreement ("Loan Agreement") and other instruments,
documents and agreements contemplated thereby or related thereto (collectively,
together with the Loan Agreement, the "Loan Documents"); and
B. Grantor is the owner of certain intellectual property, identified
below, in which Grantor is granting a security interest to TBCC.
NOW THEREFORE, in consideration of the mutual promises, covenants, conditions,
representations, and warranties hereinafter set forth and for other good and
valuable consideration, the parties hereto mutually agree as follows:
1. DEFINITIONS AND CONSTRUCTION.
1.1 Definitions. The following terms, as used in this Agreement, have
the following meanings:
"Code" means the Illinois Uniform Commercial Code, as amended and
supplemented from time to time, and any successor statute.
"Collateral" means all of the following, whether now owned or
hereafter acquired:
(i) Each of the trademarks and rights and interest which are capable
of being protected as trademarks (including trademarks, service marks,
designs, logos, indicia, tradenames, corporate names, company names,
business names, fictitious business names, trade styles, and other source
or business identifiers, and applications pertaining thereto), which are
presently, or in the future may be, owned, created, acquired, or used
(whether pursuant to a license or otherwise) by Grantor, in whole or in
part, and all trademark rights with respect thereto throughout the world,
including all proceeds thereof (including license royalties and proceeds of
infringement suits), and rights to renew and extend such trademarks and
trademark rights;
(ii) Each of the patents and patent applications which are presently,
or in the future may be, owned, issued, acquired, or used (whether pursuant
to a license or otherwise) by Grantor, in whole or in part, and all patent
rights with respect thereto throughout the world, including all proceeds
thereof (including license royalties and proceeds of infringement suits),
foreign filing rights, and rights to extend such patents and patent rights;
(iii) All of Grantor's right to the trademarks and trademark
registrations listed on Exhibit A attached hereto, as the same may be
updated hereafter from time to time;
(iv) All of Grantor's right, title, and interest, in and to the
patents and patent applications listed on Exhibit B attached hereto, as the
same may be updated hereafter from time to time;
(v) All of Grantor's right, title and interest to register trademark
claims under any state or federal trademark law or regulation of any
foreign country and to apply for, renew, and extend the trademark
registrations and trademark rights, the right (without obligation) to xxx
or bring opposition or cancellation proceedings in the name of Grantor or
in the name of TBCC for past, present, and future infringements of the
trademarks, registrations, or trademark rights and all rights (but not
obligations) corresponding thereto in the United States and any foreign
country;
(vi) All of Grantor's right, title, and interest in all patentable
inventions, and to file applications for patent under federal patent law or
regulation of any foreign country, and to request reexamination and/or
reissue of the patents, the right (without obligation) to xxx or bring
interference proceedings in the name of Grantor or in the name of TBCC for
past, present, and future infringements of the patents, and all rights (but
not obligations) corresponding thereto in the United States and any foreign
country;
(vii) the entire goodwill of or associated with the businesses now or
hereafter con-ducted by Grantor con-nected with and symbol-ized by any of
the aforementioned properties and assets;
(viii) All general intangibles relating to the foregoing and all other
intangible intellectual or other similar property of the Grantor of any
kind or nature, associated with or arising out of any of the aforementioned
properties and assets and not otherwise described above; and
(ix) All products and proceeds of any and all of the foregoing
(including, without limitation, license royalties and proceeds of
infringement suits) and, to the extent not otherwise included, all payments
under insurance, or any indemnity, warranty, or guaranty payable by reason
of loss or damage to or otherwise with respect to the Collateral.
1.2 Construction. Unless the context of this Agreement clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, and the term "including" is not limiting. The
words "hereof," "herein," "hereby," "hereunder," and other similar terms refer
to this Agreement as a whole and not to any particular provision of this
Agreement. Any initially capitalized terms used but not defined herein shall
have the meaning set forth in the Loan Agreement. Any reference herein to any of
the Loan Documents includes any and all alterations, amendments, extensions,
modifications, renewals, or supplements thereto or thereof, as applicable.
Neither this Agreement nor any uncertainty or ambiguity herein shall be
construed or resolved against TBCC or Grantor, whether under any rule of
construction or otherwise. On the contrary, this Agreement has been reviewed by
Grantor, TBCC, and their respective counsel, and shall be construed and
interpreted according to the ordinary meaning of the words used so as to fairly
accomplish the purposes and intentions of TBCC and Grantor. Headings have been
set forth herein for convenience only, and shall not be used in the construction
of this Agreement.
2. GRANT OF SECURITY INTEREST.
To secure the complete and timely payment and performance of all
Obligations, and without limiting any other security interest Grantor has
granted to TBCC, Grantor hereby grants, assigns, and conveys to TBCC a security
interest in Grantor's entire right, title, and interest in and to the
Collateral.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS.
Grantor hereby represents, warrants, and covenants that:
3.1 Trademarks; Patents. A true and complete schedule setting forth all
federal and state trademark registrations owned or controlled by Grantor or
licensed to Grantor, together with a summary description and full information in
respect of the filing or issuance thereof and expiration dates is set forth on
Exhibit A; and a true and complete schedule setting forth all patent and patent
applications owned or controlled by Grantor or licensed to Grantor, together
with a summary description and full information in respect of the filing or
issuance thereof and expiration dates is set forth on Exhibit B.
3.2 Validity; Enforceability. Each of the patents and trademarks is valid
and enforceable, and Grantor is not presently aware of any past, present, or
prospective claim by any third party that any of the patents or trademarks are
invalid or unenforceable, or that the use of any patents or trademarks violates
the rights of any third person, or of any basis for any such claims.
3.3 Title. Grantor is the sole and exclusive owner of the entire and
unencumbered right, title, and interest in and to each of the patents, patent
applications, trademarks, and trademark registrations, free and clear of any
liens, charges, and encumbrances, including pledges, assignments, licenses, shop
rights, and covenants by Grantor not to xxx third persons.
3.4 Notice. Grantor has used and will continue to use proper statutory
notice in connection with its use of each of the patents and trademarks.
3.5 Quality. Grantor has used and will continue to use consistent standards
of high quality (which may be consistent with Grantor's past practices) in the
manufacture, sale, and delivery of products and services sold or delivered under
or in connection with the trademarks, including, to the extent applicable, in
the operation and maintenance of its merchandising operations, and will continue
to maintain the validity of the trademarks.
3.6 Perfection of Security Interest. Except for the filing of appropriate
financing statements (all of which filings have been made) and filings with the
United States Patent and Trademark Office necessary to perfect the security
interests created hereunder, no authorization, approval, or other action by, and
no notice to or filing with, any governmental authority or regulatory body is
required either for the grant by Grantor of the security interest hereunder or
for the execution, delivery, or performance of this Agreement by Grantor or for
the perfection of or the exercise by TBCC of its rights hereunder to the
Collateral in the United States.
4. AFTER-ACQUIRED PATENT OR TRADEMARK RIGHTS.
If Grantor shall obtain rights to any new trademarks, any new patentable
inventions or become entitled to the benefit of any patent application or patent
for any reissue, division, or continuation, of any patent, the provisions of
this Agreement shall automatically apply thereto. Grantor shall give prompt
notice in writing to TBCC with respect to any such new trademarks or patents, or
renewal or extension of any trademark registration. Grantor shall bear any
expenses incurred in connection with future patent applications or trademark
registrations. Without limiting Grantor's obligation under this Section 4,
Grantor authorizes TBCC to modify this Agreement by amending Exhibits A or B to
include any such new patent or trademark rights. Notwithstanding the foregoing,
no failure to so modify this Agreement or amend Exhibits A or B shall in any way
affect, invalidate or detract from TBCC's continuing security interest in all
Collateral, whether or not listed on Exhibit A or B.
5. LITIGATION AND PROCEEDINGS.
Grantor shall commence and diligently prosecute in its own name, as the
real party in interest, for its own benefit, and its own expense, such suits,
administrative proceedings, or other action for infringement or other damages as
are in its reasonable business judgment necessary to protect the Collateral.
Grantor shall provide to TBCC any information with respect thereto requested by
TBCC. TBCC shall provide at Grantor's expense all necessary cooperation in
connection with any such suits, proceedings, or action, including, without
limitation, joining as a necessary party. Following Grantor's becoming aware
thereof, Grantor shall notify TBCC of the institution of, or any adverse
determination in, any proceeding in the United States Patent and Trademark
Office, or any United States, state, or foreign court regarding Grantor's claim
of ownership in any of the patents or trademarks, its right to apply for the
same, or its right to keep and maintain such patent or trademark rights.
6. POWER OF ATTORNEY.
Grantor hereby appoints TBCC as Grantor's true and lawful attorney, with
full power of substitution, to do any or all of the following, in the name,
place and stead of Grantor: (a) file this Agreement (or an abstract hereof) or
any other document describing TBCC's interest in the Collateral with the United
States Patent and Trademark Office; (b) execute any modification of this
Agreement pursuant to Section 4 of this Agreement; (c) take any action and
execute any instrument which TBCC may deem necessary or advisable to accomplish
the purposes of this Agreement; and (d) following an Event of Default (as
defined in the Loan Agreement), (i) endorse Grantor's name on all applications,
documents, papers and instruments necessary for TBCC to use or maintain the
Collateral; (ii) ask, demand, collect, xxx for, recover, impound, receive, and
give acquittance and receipts for money due or to become due under or in respect
of any of the Collateral; (iii) file any claims or take any action or institute
any proceedings that TBCC may deem necessary or desirable for the collection of
any of the Collateral or otherwise enforce TBCC's rights with respect to any of
the Collateral, and (iv) assign, pledge, convey, or otherwise transfer title in
or dispose of the Collateral to any person.
7. RIGHT TO INSPECT.
Grantor grants to TBCC and its employees and agents the right to visit
Grantor's plants and facilities which manufacture, inspect, or store products
sold under any of the patents or trademarks, and to inspect the products and
quality control records relating thereto at reasonable times during regular
business hours.
8. SPECIFIC REMEDIES.
Upon the occurrence of any Event of Default (as defined in the Loan
Agreement), TBCC shall have, in addition to, other rights given by law or in
this Agreement, the Loan Agreement, or in any other Loan Document, all of the
rights and remedies with respect to the Collateral of a secured party under the
Code, including the following:
8.1 Notification. TBCC may notify licensees to make royalty payments on
license agreements directly to TBCC;
8.2 Sale. TBCC may sell or assign the Collateral and associated goodwill at
public or private sale for such amounts, and at such time or times as TBCC deems
advisable. Any requirement of reasonable notice of any disposition of the
Collateral shall be satisfied if such notice is sent to Grantor five (5) days
prior to such disposition. Grantor shall be credited with the net proceeds of
such sale only when they are actually received by TBCC, and Grantor shall
continue to be liable for any deficiency remaining after the Collateral is sold
or collected. If the sale is to be a public sale, TBCC shall also give notice of
the time and place by publishing a notice one time at least five (5) days before
the date of the sale in a newspaper of general circulation in the county in
which the sale is to be held. To the maximum extent permitted by applicable law,
TBCC may be the purchaser of any or all of the Collateral and associated
goodwill at any public sale and shall be entitled, for the purpose of bidding
and making settlement or payment of the purchase price for all or any portion of
the Collateral sold at any public sale, to use and apply all or any part of the
Obligations as a credit on account of the purchase price of any collateral
payable by TBCC at such sale.
9. GENERAL PROVISIONS.
9.1 Effectiveness. This Agreement shall be binding and deemed effective
when executed by Grantor and TBCC.
9.2 Notices. Except to the extent otherwise provided herein, all notices,
demands, and requests that either party is required or elects to give to the
other shall be in writing and shall be governed by the notice provisions of the
Loan Agreement.
9.3 No Waiver. No course of dealing between Grantor and TBCC, nor any
failure to exercise nor any delay in exercising, on the part of TBCC, any right,
power, or privilege under this Agreement or under the Loan Agreement or any
other agreement, shall operate as a waiver. No single or partial exercise of any
right, power, or privilege under this Agreement or under the Loan Agreement or
any other agreement by TBCC shall preclude any other or further exercise of such
right, power, or privilege or the exercise of any other right, power, or
privilege by TBCC.
9.4 Rights Are Cumulative. All of TBCC's rights and remedies with respect
to the Collateral whether established by this Agreement, the Loan Agreement, or
any other documents or agreements, or by law shall be cumulative and may be
exercised concurrently or in any order.
9.5 Successors. The benefits and burdens of this Agreement shall inure to
the benefit of and be binding upon the respective successors and permitted
assigns of the parties; provided that Grantor may not transfer any of the
Collateral or any rights hereunder, without the prior written consent of TBCC,
except as specifically permitted hereby.
9.6 Severability. The provisions of this Agreement are severable. If any
provision of this Agreement is held invalid or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such provision, or part thereof, in such jurisdiction, and shall not in any
manner affect such provision or part thereof in any other jurisdiction, or any
other provision of this Agreement in any jurisdiction.
9.7 Entire Agreement. This Agreement is subject to modification only by a
writing signed by the parties, except as provided in Section 4 of this
Agreement. To the extent that any provision of this Agreement conflicts with any
provision of the Loan Agreement, the provision giving TBCC greater rights or
remedies shall govern, it being understood that the purpose of this Agreement is
to add to, and not detract from, the rights granted to TBCC under the Loan
Agreement. This Agreement, the Loan Agreement, and the documents relating
thereto comprise the entire agreement of the parties with respect to the matters
addressed in this Agreement.
9.8 Fees and Expenses. Grantor shall pay to TBCC on demand all costs and
expenses that TBCC pays or incurs in connection with the negotiation,
preparation, consummation, administration, enforcement, and termination of this
Agreement, including: (a) reasonable attorneys' and paralegals' fees and
disbursements of counsel to TBCC; (b) costs and expenses (including reasonable
attorneys' and paralegals' fees and disbursements) for any amendment,
supplement, waiver, consent, or subsequent closing in connection with this
Agreement and the transactions contemplated hereby; (c) costs and expenses of
lien and title searches; (d) taxes, fees, and other charges for filing this
Agreement at the United States Patent and Trademark Office, or for filing
financing statements, and continuations, and other actions to perfect, protect,
and continue the security interest created hereunder; (e) sums paid or incurred
to pay any amount or take any action required of Grantor under this Agreement
that Grantor fails to pay or take; (f) costs and expenses of preserving and
protecting the Collateral; and (g) costs and expenses (including reasonable
attorneys' and paralegals' fees and disbursements) paid or incurred to enforce
the security interest created hereunder, sell or otherwise realize upon the
Collateral, and otherwise enforce the provisions of this Agreement, or to defend
any claims made or threatened against the TBCC arising out of the transactions
contemplated hereby (including preparations for the consultations concerning any
such matters). The foregoing shall not be construed to limit any other
provisions of this Agreement or the Loan Documents regarding costs and expenses
to be paid by Grantor. The parties agree that reasonable attorneys' and
paralegals' fees and costs incurred in enforcing any judgment are recoverable as
a separate item in addition to fees and costs incurred in obtaining the judgment
and that the recovery of such attorneys' and paralegals' fees and costs is
intended to survive any judgment, and is not to be deemed merged into any
judgment.
9.9 Indemnity. Grantor shall protect, defend, indemnify, and hold harmless
TBCC and TBCC's assigns from all liabilities, losses, and costs (including
without limitation reasonable attorneys' fees) incurred or imposed on TBCC
relating to the matters in this Agreement.
9.10 Further Assurances. At TBCC's request, Grantor shall execute and
deliver to TBCC any further instruments or documentation, and perform any acts,
that may be reasonably necessary or appropriate to implement this Agreement, the
Loan Agreement or any other agreement, and the documents relating thereto,
including without limitation any instrument or documentation reasonably
necessary or appropriate to create, maintain, perfect, or effectuate TBCC's
security interests in the Collateral.
9.11 Release. At such time as Grantor shall completely satisfy all of the
Obligations and the Loan Agreement shall be terminated, TBCC shall execute and
deliver to Grantor all assignments and other instruments as may be reasonably
necessary or proper to terminate TBCC's security interest in the Collateral,
subject to any disposition of the Collateral which may have been made by TBCC
pursuant to this Agreement. For the purpose of this Agreement, the Obligations
shall be deemed to continue if Grantor enters into any bankruptcy or similar
proceeding at a time when any amount paid to TBCC could be ordered to be repaid
as a preference or pursuant to a similar theory, and shall continue until it is
finally determined that no such repayment can be ordered.
9.12 Governing Law. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AGREEMENT AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE GOVERNED BY
THE INTERNAL LAWS AND DECISIONS OF THE STATE OF ILLINOIS. ALL DISPUTES BETWEEN
THE GRANTOR AND TBCC, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE,
SHALL BE RESOLVED ONLY BY STATE AND FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS,
AND THE COURTS TO WHICH AN APPEAL THEREFROM MAY BE TAKEN; PROVIDED, HOWEVER,
THAT TBCC SHALL HAVE THE RIGHT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO
PROCEED AGAINST THE GRANTOR OR ITS PROPERTY IN ANY LOCATION REASONABLY SELECTED
BY TBCC IN GOOD FAITH TO ENABLE TBCC TO REALIZE ON SUCH PROPERTY, OR TO ENFORCE
A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF TBCC. THE GRANTOR AGREES THAT IT
WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS, SETOFFS OR CROSS-CLAIMS IN ANY
PROCEEDING BROUGHT BY TBCC. THE GRANTOR WAIVES ANY OBJECTION THAT IT MAY HAVE TO
THE LOCATION OF THE COURT IN WHICH TBCC HAS COMMENCED A PROCEEDING, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON FORUM NON
CONVENIENS.
9.13 Waiver of Right to Jury Trial. TBCC and Grantor each hereby waive the
right to trial by jury in any action or proceeding based upon, arising out of,
or in any way relating to: (i) this Agreement; or (ii) any other present or
future instrument or agreement between TBCC and Grantor; or (iii) any conduct,
acts or omissions of TBCC or Grantor or any of their directors, officers,
employees, agents, attorneys or any other persons affiliated with TBCC or
Grantor; in each of the foregoing cases, whether sounding in contract or tort or
otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above.
TRANSAMERICA BUSINESS CREDIT LifeCell Corporation
CORPORATION
By By
------------------------- -------------------------
Title Title
------------------------- -------------------------
Exhibit "A"
REGISTERED TRADEMARKS
Trademark Registration Date Registration No.
--------- ------------------ -----------------
PENDING TRADEMARKS
------------------
Exhibit "B"
PATENTS
Patent Description/Title Issue Date Patent No. Name of Inventor
------------------------- ----------- ----------- ----------------
PATENT APPLICATIONS
-------------------
Description Filing Date Serial No. Name of Inventor
----------- ------------ ----------- ----------------
--------------------------------------------------------------------------------
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR SALE
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER
SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR THE AVAILABILITY OF AN
EXEMPTION FROM REGISTRATION UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
STOCK SUBSCRIPTION WARRANT
To Purchase Common Stock of
LifeCell Corporation (the "Company")
DATE OF INITIAL ISSUANCE: December 6, 1999
THIS CERTIFIES THAT for value received, TBCC Funding Trust II, a Delaware
business trust or its registered assigns (hereinafter called the "Holder") is
entitled to purchase from the Company, at any time during the Term of this
Warrant, 84,211 shares of common stock, $.001 par value, of the Company (the
"Common Stock"), at the Warrant Price, payable as provided herein. The exercise
of this Warrant shall be subject to the provisions, limitations and restrictions
herein contained, and may be exercised in whole or in part.
SECTION 1. Definitions.
-----------
For all purposes of this Warrant, the following terms shall have the
meanings indicated:
Common Stock - shall mean and include the Company's authorized Common
-------------
Stock, $.001 par value, as constituted at the date
hereof.
Exchange Act - shall mean the Securities Exchange Act of 1934, as amended
-------------
from time to time.
Securities Act - the Securities Act of 1933, as amended.
---------------
Term of this Warrant - shall mean the period beginning on the date of
-----------------------
initial issuance hereof and ending on December 31, 2004
Warrant Price - $4.75 per share, subject to adjustment in accordance with
--------------
Section 5 hereof.
Warrants - this Warrant and any other Warrant or Warrants are issued in
--------
connection with a Loan and Security Agreement dated December 6, 1999 by and
between the Company and Transamerica Business Credit Corporation (the "Loan
Agreement") to the original holder of this Warrant, or any transferees from such
original holder or this Holder.
Warrant Shares - shares of Common Stock purchased or purchasable by the
---------------
Holder of this Warrant upon the exercise hereof.
SECTION 2. Exercise of Warrant.
---------------------
2.1. Procedure for Exercise of Warrant. To exercise this Warrant in
------------------------------------
whole or in part (but not as to any fractional share of Common Stock), the
Holder shall deliver to the Company at its office referred to in Section 13
hereof at any time and from time to time during the Term of this Warrant: (i)
the Notice of Exercise in the form attached hereto, (ii) cash, certified or
official bank check payable to the order of the Company, wire transfer of funds
to the Company's account, or evidence of any indebtedness of the Company to the
Holder (or any combination of any of the foregoing) in the amount of the Warrant
Price for each share being purchased, and (iii) this Warrant. Notwithstanding
any provisions herein to the contrary, if the Current Market Price (as defined
in Section 5) is greater than the Warrant Price (at the date of calculation, as
set forth below), in lieu of exercising this Warrant as hereinabove permitted,
the Holder may elect to receive shares of Common Stock equal to the value (as
determined below) of this Warrant (or the portion thereof being canceled) by
surrender of this Warrant at the office of the Company referred to in Section 13
hereof, together with the Notice of Exercise, in which event the Company shall
issue to the Holder that number of shares of Common Stock computed using the
following formula:
CS = WCS x (CMP-WP)
--------------
CMP
Where
CS equals the number of shares of Common Stock to be issued to the Holder
WCS equals the number of shares of Common Stock purchasable under the
Warrant or, if only a portion of the Warrant is being exercised, the
portion of the Warrant being exercised (at the date of such
calculation)
CMP equals the Current Market Price (at the date of such calculation)
WP equals the Warrant Price (as adjusted to the date of such calculation)
In the event of any exercise of the rights represented by this Warrant, a
certificate or certificates for the shares of Common Stock so purchased,
registered in the name of the Holder or such other name or names as may be
designated by the Holder, shall be delivered to the Holder hereof within a
reasonable time, not exceeding fifteen (15) days, after the rights represented
by this Warrant shall have been so exercised; and, unless this Warrant has
expired, a new Warrant representing the number of shares (except a remaining
fractional share), if any, with respect to which this Warrant shall not then
have been exercised shall also be issued to the Holder hereof within such time.
The person in whose name any certificate for shares of Common Stock is issued
upon exercise of this Warrant shall for all purposes be deemed to have become
the holder of record of such shares on the date on which the Warrant was
surrendered and payment of the Warrant Price and any applicable taxes was made,
irrespective of the date of delivery of such certificate, except that, if the
date of such surrender and payment is a date when the stock transfer books of
the Company are closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on which the
stock transfer books are open.
2.2. Transfer Restriction Legend. Each certificate for Warrant Shares
----------------------------
shall bear the following legend (and any additional legend required by (i) any
applicable state securities laws and (ii) any securities exchange upon which
such Warrant Shares may, at the time of such exercise, be listed) on the face
thereof unless at the time of exercise such Warrant Shares shall be registered
under the Securities Act:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be sold or
transferred in the absence of such registration or an exemption
therefrom under said Act."
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution under a registration statement of the securities
represented thereby) shall also bear such legend unless, in the opinion of
counsel for the holder thereof (which counsel shall be reasonably satisfactory
to counsel for the Company) the securities represented thereby are not, at such
time, required by law to bear such legend.
SECTION 3. Covenants as to Common Stock. The Company covenants and agrees that
----------------------------
all shares of Common Stock that may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be validly issued, fully paid
and nonassessable, and free from all taxes, liens and charges with respect to
the issue thereof. The Company further covenants and agrees that it will pay
when due and payable any and all federal and state taxes which may be payable in
respect of the issue of this Warrant or any Common Stock or certificates
therefor issuable upon the exercise of this Warrant. The Company further
covenants and agrees that the Company will at all times have authorized and
reserved, free from preemptive rights, a sufficient number of shares of Common
Stock to provide for the exercise of the rights represented by this Warrant.
The Company further covenants and agrees that if any shares of capital stock to
be reserved for the purpose of the issuance of shares upon the exercise of this
Warrant require registration with or approval of any governmental authority
under any federal or state law before such shares may be validly issued or
delivered upon exercise, then the Company will in good faith and as
expeditiously as possible endeavor to secure such registration or approval, as
the case may be. If and so long as the Common Stock issuable upon the exercise
of this Warrant is listed on any national securities exchange, the Company will,
if permitted by the rules of such exchange, list and keep listed on such
exchange, upon official notice of issuance, all shares of such Common Stock
issuable upon exercise of this Warrant.
SECTION 4. Adjustment of Number of Shares. Upon each adjustment of the Warrant
------------------------------
Price as provided in Section 5, the Holder shall thereafter be entitled to
purchase, at the Warrant Price resulting from such adjustment, the number of
shares (calculated to the nearest tenth of a share) obtained by multiplying the
Warrant Price in effect immediately prior to such adjustment by the number of
shares purchasable pursuant hereto immediately prior to such adjustment and
dividing the product thereof by the Warrant Price resulting from such
adjustment.
SECTION 5. Adjustment of Warrant Price. The Warrant Price shall be subject to
---------------------------
adjustment from time to time as follows:
(iii) If, at any time during the Term of this Warrant, the number of
shares of Common Stock outstanding is increased by a stock dividend payable in
shares of Common Stock or by a subdivision or split-up of shares of Common
Stock, then, following the record date fixed for the determination of holders of
Common Stock entitled to receive such stock dividend, subdivision or split-up,
the Warrant Price shall be appropriately decreased so that the number of shares
of Common Stock issuable upon the exercise hereof shall be increased in
proportion to such increase in outstanding shares.
(iv) If, at any time during the Term of this Warrant, the number of shares
of Common Stock outstanding is decreased by a combination of the outstanding
shares of Common Stock, then, following the record date for such combination,
the Warrant Price shall appropriately increase so that the number of shares of
Common Stock issuable upon the exercise hereof shall be decreased in proportion
to such decrease in outstanding shares.
(v) In case, at any time during the Term of this Warrant, the Company
shall declare a cash dividend upon its Common Stock payable otherwise than out
of earnings or earned surplus or shall distribute to holders of its Common Stock
shares of its capital stock (other than Common Stock), stock or other securities
of other persons, evidences of indebtedness issued by the Company or other
persons, assets (excluding cash dividends and distributions) or options or
rights (excluding options to purchase and rights to subscribe for Common Stock
or other securities of the Company convertible into or exchangeable for Common
Stock), then, in each such case, immediately following the record date fixed for
the determination of the holders of Common Stock entitled to receive such
dividend or distribution, the Warrant Price in effect thereafter shall be
determined by multiplying the Warrant Price in effect immediately prior to such
record date by a fraction of which the numerator shall be an amount equal to the
difference of (x) the Current Market Price of one share of Common Stock minus
(y) the fair market value (as determined by the Board of Directors of the
Company, whose determination shall be conclusive) of the stock, securities,
evidences of indebtedness, assets, options or rights so distributed in respect
of one share of Common Stock, and of which the denominator shall be such Current
Market Price.
(vi) All calculations under this Section 5 shall be made to the nearest
cent or to the nearest one-tenth (1/10) of a share, as the case may be.
(vii) For the purpose of any computation pursuant to Section 2 hereof, or
this Section 5, the Current Market Price at any date of one share of Common
Stock shall be deemed to be the average of the daily closing prices for the 15
consecutive business days ending on the last business day before the day in
question (as adjusted for any stock dividend, split, combination or
reclassification that took effect during such 15 business day period). The
closing price for each day shall be the last reported sales price regular way
or, in case no such reported sales took place on such day, the average of the
last reported bid and asked prices regular way, in either case on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading or as reported by Nasdaq (or if the Common Stock is not at the time
listed or admitted for trading on any such exchange or if prices of the Common
Stock are not reported by Nasdaq then such price shall be equal to the average
of the last reported bid and asked prices on such day as reported by The
National Quotation Bureau Incorporated or any similar reputable quotation and
reporting service, if such quotation is not reported by The National Quotation
Bureau Incorporated); provided, however, that if the Common Stock is not traded
in such manner that the quotations referred to in this clause (vii) are
available for the period required hereunder, the Current Market Price shall be
determined in good faith by the Board of Directors of the Company or, if such
determination cannot be made, by a nationally recognized independent investment
banking firm selected by the Board of Directors of the Company (or if such
selection cannot be made, by a nationally recognized independent investment
banking firm selected by the American Arbitration Association in accordance with
its rules).
(viii) Whenever the Warrant Price shall be adjusted as provided in Section
5, the Company shall prepare a statement showing the facts requiring such
adjustment and the Warrant Price that shall be in effect after such adjustment.
The Company shall cause a copy of such statement to be sent by mail, first class
postage prepaid, to each Holder of this Warrant at its, his or her address
appearing on the Company's records. Where appropriate, such copy may be given
in advance and may be included as part of the notice required to be mailed under
the provisions of subsection (x) of this Section 5.
(ix) Adjustments made pursuant to clauses (iii), (iv) and (v) above shall
be made on the date such dividend, subdivision, split-up, combination or
distribution, as the case may be, is made, and shall become effective at the
opening of business on the business day next following the record date for the
determination of stockholders entitled to such dividend, subdivision, split-up,
combination or distribution.
(x) In the event the Company shall propose to take any action of the types
described in clauses (iii), (iv) or (v) of this Section 5, the Company shall
forward, at the same time and in the same manner, to the Holder of this Warrant
such notice, if any, which the Company shall give to the holders of capital
stock of the Company.
(xi) In any case in which the provisions of this Section 5 shall require
that an adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event issuing to the
Holder of all or any part of this Warrant which is exercised after such record
date and before the occurrence of such event the additional shares of capital
stock issuable upon such exercise by reason of the adjustment required by such
event over and above the shares of capital stock issuable upon such exercise
before giving effect to such adjustment exercise; provided, however, that the
Company shall deliver to such Holder a due xxxx or other appropriate instrument
evidencing such Holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
SECTION 6. Ownership.
---------
6.1. Ownership of This Warrant. The Company may deem and treat the
----------------------------
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary until presentation of this Warrant for registration of transfer
as provided in this Section 6.
6.2. Transfer and Replacement. This Warrant and all rights hereunder
--------------------------
are transferable in whole or in part upon the books of the Company by the Holder
hereof in person or by duly authorized attorney, and a new Warrant or Warrants,
of the same tenor as this Warrant but registered in the name of the transferee
or transferees (and in the name of the Holder, if a partial transfer is
effected) shall be made and delivered by the Company upon surrender of this
Warrant duly endorsed, at the office of the Company referred to in Section 13
hereof. Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft or destruction, and, in such case, of indemnity or security
reasonably satisfactory to it, and upon surrender of this Warrant if mutilated,
the Company will make and deliver a new Warrant of like tenor, in lieu of this
Warrant; provided that if the Holder hereof is an instrumentality of a state or
local government or an institutional holder or a nominee for such an
instrumentality or institutional holder an irrevocable agreement of indemnity by
such Holder shall be sufficient for all purposes of this Section 6, and no
evidence of loss or theft or destruction shall be necessary. This Warrant shall
be promptly cancelled by the Company upon the surrender hereof in connection
with any transfer or replacement. Except as otherwise provided above, in the
case of the loss, theft or destruction of a Warrant, the Company shall pay all
expenses, taxes and other charges payable in connection with any transfer or
replacement of this Warrant, other than stock transfer taxes (if any) payable in
connection with a transfer of this Warrant, which shall be payable by the
Holder. Holder will not transfer this Warrant and the rights hereunder except
in compliance with federal and state securities laws.
SECTION 7. Mergers, Consolidation, Sales. In the case of any proposed
-------------------------------
consolidation or merger of the Company with another entity, or the proposed sale
of all or substantially all of its assets to another person or entity, or any
proposed reorganization or reclassification of the capital stock of the Company,
then, as a condition of such consolidation, merger, sale, reorganization or
reclassification, lawful and adequate provision shall be made whereby the Holder
of this Warrant shall thereafter have the right to receive upon the basis and
upon the terms and conditions specified herein, in lieu of the shares of the
Common Stock of the Company immediately theretofore purchasable hereunder, such
shares of stock, securities or assets as may (by virtue of such consolidation,
merger, sale, reorganization or reclassification) be issued or payable with
respect to or in exchange for the number of shares of such Common Stock
purchasable hereunder immediately before such consolidation, merger, sale,
reorganization or reclassification. In any such case appropriate provision
shall be made with respect to the rights and interests of the Holder of this
Warrant to the end that the provisions hereof shall thereafter be applicable as
nearly as may be, in relation to any shares of stock, securities or assets
thereafter deliverable upon the exercise of this Warrant.
SECTION 8. Notice of Dissolution or Liquidation. In case of any distribution
-------------------------------------
of the assets of the Company in dissolution or liquidation (except under
circumstances when the foregoing Section 7 shall be applicable), the Company
shall give notice thereof to the Holder hereof and shall make no distribution to
shareholders until the expiration of thirty (30) days from the date of mailing
of the aforesaid notice and, in any case, the Holder hereof may exercise this
Warrant within thirty (30) days from the date of the giving of such notice, and
all rights herein granted not so exercised within such thirty-day period shall
thereafter become null and void.
SECTION 9. Notice of Extraordinary Dividends. If the Board of Directors of the
---------------------------------
Company shall declare any dividend or other distribution on its Common Stock
except out of earned surplus or by way of a stock dividend payable in shares of
its Common Stock, the Company shall mail notice thereof to the Holder hereof not
less than thirty (30) days prior to the record date fixed for determining
shareholders entitled to participate in such dividend or other distribution, and
the Holder hereof shall not participate in such dividend or other distribution
unless this Warrant is exercised prior to such record date. The provisions of
this Section 9 shall not apply to distributions made in connection with
transactions covered by Section 7.
SECTION 10. Fractional Shares. Fractional shares shall not be issued upon the
-----------------
exercise of this Warrant but in any case where the Holder would, except for the
provisions of this Section 10, be entitled under the terms hereof to receive a
fractional share upon the complete exercise of this Warrant, the Company shall,
upon the exercise of this Warrant for the largest number of whole shares then
called for, pay a sum in cash equal to the excess of the value of such
fractional share (determined in such reasonable manner as may be prescribed in
good faith by the Board of Directors of the Company) over the Warrant Price for
such fractional share.
SECTION 11. Special Arrangements of the Company. The Company covenants and
--------------------------------------
agrees that during the Term of this Warrant, unless otherwise approved by the
Holder of this Warrant:
11.1. Will Reserve Shares. The Company will reserve and set apart and
--------------------
have available for issuance at all times, free from preemptive or other
preferential rights, the number of shares of authorized but unissued Common
Stock deliverable upon the exercise of this Warrant.
11.2. Will Not Amend Certificate. The Company will not amend its
-----------------------------
Certificate of Incorporation to eliminate as an authorized class of capital
stock that class denominated as "Common Stock" on the date hereof.
11.3. Will Bind Successors. This Warrant shall be binding upon any
----------------------
corporation or other person or entity succeeding to the Company by merger,
consolidation or acquisition of all or substantially all of the Company's
assets.
SECTION 12. Registration Rights; etc.
--------------------------
12.1. Certain Definitions. As used in this Section 12, the following
--------------------
terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Registrable Securities" shall mean the Warrant Shares less any Warrant
Shares theretofore sold to the public or in a private placement.
The terms "register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses incurred by the Company in
compliance with Section 12.2 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses, and the expense of any
special audits incident to or required by any such registration (but excluding
the compensation of regular employees of the Company, which shall be paid in any
event by the Company).
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities, all fees and
disbursements of counsel for any Holder and any blue sky fees and expenses
excluded from the definition of "Registration Expenses."
"Holder" shall mean any holder of outstanding Warrant Shares or Registrable
Securities which (except for purposes of determining "Holders" under Section
12.5 hereof) have not been sold to the public.
"Other Shareholders" shall mean holders of securities of the Company who
are entitled by contract with the Company or who are permitted by the Company to
have securities included in a registration of the Company's securities.
12.2. Company Registration.
---------------------
(a) Notice of Registration. If the Company shall determine to
------------------------
register any of its securities either for its own account or the account of a
security holder or holders, other than a registration relating solely to
employee benefit plans, or a registration relating solely to a Commission Rule
145 transaction, or a registration on any registration form which does not
permit secondary sales, the Company will:
(i) promptly give to each Holder written notice thereof
(which shall include a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under the applicable blue sky or other state
securities laws); and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made by any Holder within fifteen (15) days after receipt of the
written notice from the Company described in clause (i) above, subject to any
limitations on the number of shares as set forth in Section 12.2(b) below.
PROVIDED, it is understood and agreed that the registration rights set
forth in this section 12.2 shall not apply to any registration occurring within
90 days of the date of this Warrant.
(b) Underwriting. If the registration of which the Company gives
------------
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as part of the written notice given pursuant
to Section 12.2(a)(i). In such event, the right of any Holder to registration
pursuant to Section 12.2 shall be conditioned upon such Holder's participation
in such underwriting and the inclusion of such Holder's Registrable Securities
in the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company, directors and officers and the Other Shareholders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for underwriting by
the Company.
Notwithstanding any other provision of this Section 12.2, if the
underwriter determines that marketing factors require a limitation on the number
of shares to be underwritten, the underwriter may (subject to the allocation
priority set forth below) exclude from such registration and underwriting some
or all of the Registrable Securities which would otherwise be underwritten
pursuant hereto. The Company shall so advise all holders of securities
requesting registration, and the number of shares of securities that are
entitled to be included in the registration and underwriting shall be allocated
in the following manner. The number of shares that may be included in the
registration and underwriting on behalf of such Holders, directors and officers
and Other Shareholders shall be allocated among such Holders, directors and
officers and Other Shareholders in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities and other securities which they had
requested to be included in such registration at the time of filing the
registration statement.
If any Holder of Registrable Securities or any officer, director or Other
Shareholder disapproves of the terms of any such underwriting, it, he or she may
elect to withdraw therefrom by written notice to the Company and the
underwriter. Any Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration.
12.3. Registration Rights. In the event that the Company grants
--------------------
registration rights, including demand registration rights, to any other holder
of securities of the Company, the Company will promptly give to the Holder
written notice thereof and, if in the opinion of the Holder such registration
rights are more favorable than the registration rights provided under this
Warrant, the Holder shall so notify the Company within thirty (30) days of
receipt of the foregoing notice from the Company, whereupon such registration
rights shall automatically be deemed to be incorporated in this Warrant.
12.4. Expenses of Registration. The Company shall bear all
--------------------------
Registration Expenses incurred in connection with any registration,
qualification and compliance by the Company pursuant to Section 12.2 hereof.
All Selling Expenses shall be borne by the holders of the securities so
registered pro rata on the basis of the number of their shares so registered.
12.5. Registration Procedures. In the case of each registration
------------------------
effected by the Company pursuant to this Section 12, the Company will keep each
Holder advised in writing as to the initiation of each registration and as to
the completion thereof. The Company will, at its expense:
(a) keep such registration effective for a period of one hundred
twenty (120) days or until the Holder or Holders have completed the distribution
described in the registration statement relating thereto, whichever first
occurs;
(b) furnish such number of prospectuses and other documents
incident thereto as a Holder from time to time may reasonably request; and
(c) use its best efforts to register or qualify the Registrable
Securities under the securities laws or blue-sky laws of such jurisdictions as
any Holder may request; provided, however, that the Company shall not be
obligated to register or qualify such Registrable Securities in any particular
jurisdiction in which the Company would be required to execute a general consent
to service of process in order to effect such registration, qualification or
compliance, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act or applicable
rules or regulations thereunder.
12.6. Indemnification.
---------------
(a) The Company, with respect to each registration, qualification
and compliance effected pursuant to this Section 12, will indemnify and hold
harmless each Holder, each of its officers, directors, partners, and agents, and
each party controlling such Holder, and each underwriter, if any, and each party
who controls any underwriter, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of the Securities Act or any rule or regulation thereunder applicable to
the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance, and will
reimburse each such Holder, each of its officers, directors, partners, and
agents, and each party controlling such Holder, each such underwriter and each
party who controls any such underwriter, for any legal and any other expenses
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action, provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission based solely upon
written information furnished to the Company by such Holder or underwriter, as
the case may be, and stated to be specifically for use in any prospectus,
offering circular or other document (including any related registration
statement, notification or the like) incident to any such registration,
qualification or compliance.
(b) Each Holder and Other Shareholder will, if Registrable
Securities held by it, him or her are included in the securities as to which
such registration, qualification or compliance is being effected, indemnify and
hold harmless the Company, each of its directors and officers and each
underwriter, if any, of the Company's securities covered by such a registration
statement, each party who controls the Company or such underwriter, each other
such Holder and Other Shareholder and each of their respective officers,
directors, partners, and agents, and each party controlling such Holder or Other
Shareholder, against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Company and such Holders, Other Shareholders, directors, officers, partners,
agents, parties, underwriters or control persons for any legal or any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document solely in reliance upon and in
conformity with written information furnished to the Company by such Holder or
Other Shareholder and stated to be specifically for use in any prospectus,
offering circular or other document (including any related registration
statement, notification or the like) incident to any such registration,
qualification or compliance; provided, however, that the obligations of such
Holders and Other Shareholders hereunder shall be limited to an amount equal to
the proceeds to each such Holder or Other Shareholder of securities sold as
contemplated herein.
(c) Each party entitled to indemnification under this Section 12.5
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense (unless the Indemnified Party shall have been
advised by counsel that actual or potential differing interests or defenses
exist or may exist between the Indemnifying Party and the Indemnified Party, in
which case such expense shall be paid by the Indemnifying Party), and provided
further that the failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Section 12. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. Each Indemnified Party shall provide such information as may be
reasonably requested by an Indemnifying Party in order to enable such
Indemnifying Party to defend a claim as to which indemnity is sought.
12.7. Information by Holder. Each Holder of Registrable Securities,
-----------------------
and each Other Shareholder holding securities included in any registration,
shall furnish to the Company such information regarding such Holder or Other
Shareholder as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Section 12.
12.8. Rule 144 Reporting. With a view to making available the benefits
------------------
of certain rules and regulations of the Commission which may permit the sale of
the Registrable Securities to the public without registration, the Company
agrees to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times from
and after ninety (90) days following the effective date of the first
registration under the Securities Act filed by the Company for an offering of
its securities to the general public;
(b) File with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act") at any time
after it has become subject to such reporting requirements; and
(c) So long as the Holder owns any Registrable Securities, furnish
to the Holder forthwith upon request a written statement by the Company as to
its compliance with the reporting requirements of Rule 144 (at any time from and
after ninety (90) days following the effective date of the first registration
statement in connection with an offering of its Securities to the general
public), and of the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
so filed as the Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing the Holder to sell any such securities
without registration.
SECTION 13. Notices. Any notice or other document required or permitted to be
-------
given or delivered to the Holder shall be delivered at, or sent by certified or
registered mail to, the Holder at 00000 Xxxxxxx Xxxx., Xxxxx 0000, Xxxxxxx Xxxx,
Xxxxxxxxxx 00000, with a copy to Holder at Riverway II, West Office Tower, 0000
Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Legal Department or to
such other address as shall have been furnished to the Company in writing by the
Holder. Any notice or other document required or permitted to be given or
delivered to the Company shall be delivered at, or sent by certified or
registered mail to, the Company at Xxx Xxxxxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, or to such other address as shall have been furnished in writing to the
Holder by the Company. Any notice so addressed and mailed by registered or
certified mail shall be deemed to be given when so mailed. Any notice so
addressed and otherwise delivered shall be deemed to be given when actually
received by the addressee.
SECTION 14. No Rights as Stockholder; Limitation of Liability. This Warrant
---------------------------------------------------
shall not entitle the Holder to any of the rights of a shareholder of the
Company except upon exercise in accordance with the terms hereof. No provision
hereof, in the absence of affirmative action by the Holder to purchase shares of
Common Stock, and no mere enumeration herein of the rights or privileges of the
Holder, shall give rise to any liability of the Holder for the Warrant Price
hereunder or as a shareholder of the Company, whether such liability is asserted
by the Company or by creditors of the Company.
SECTION 15. Law Governing. THE VALIDITY, INTERPRETATION, AND ENFORCEMENT OF
--------------
THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
SECTION 16. Miscellaneous.
(a) This Warrant and any provision hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by both parties
(or any respective predecessor in interest thereof). The headings in this
Warrant are for purposes of reference only and shall not affect the meaning or
construction of any of the provisions hereof
(b) All capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Loan Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer on December 6, 1999.
LifeCell Corporation
[CORPORATE SEAL]
By:
--------------------------------------
Title:
--------------------------------------
FORM OF NOTICE OF EXERCISE
[To be signed only upon exercise of the Warrant]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO EXERCISE THE WITHIN WARRANT
The undersigned hereby exercises the right to purchase _________ shares of
Common Stock which the undersigned is entitled to purchase by the terms of the
within Warrant according to the conditions thereof, and herewith
[check one]
o makes payment of $ therefor; or
---------------
o directs the Company to issue shares, and to withhold shares
in lieu of payment of the Warrant Price, as described in
Section 2.1 of the Warrant.
All shares to be issued pursuant hereto shall be issued in the name of and the
initial address of such person to be entered on the books of the Company shall
be:
The shares are to be issued in certificates of the following denominations:
--------------------------------------
[Type Name of Holder]
By:
--------------------------------------
Title:
--------------------------------------
Dated:
-----------
FORM OF ASSIGNMENT
(ENTIRE)
[To be signed only upon transfer of entire Warrant]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO TRANSFER THE WITHIN WARRANT
FOR VALUE RECEIVED hereby sells, assigns and
---------------------------
transfers unto all rights of the undersigned
-------------------------------
under and pursuant to the within Warrant, and the undersigned does hereby
irrevocably constitute and appoint Attorney to
-------------------------------
transfer the said Warrant on the books of the Company, with full power of
substitution.
--------------------------------------
[Type Name of Holder]
By:
--------------------------------------
Title:
--------------------------------------
Dated:
-----------
NOTICE
The signature to the foregoing Assignment must correspond to the name as
written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatsoever.
FORM OF ASSIGNMENT
(PARTIAL)
[To be signed only upon partial transfer of Warrant]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO TRANSFER THE WITHIN WARRANT
FOR VALUE RECEIVED hereby sells, assigns and
-------------------------
transfers unto (i) the rights of the undersigned
-------------------------------
to purchase shares of Common Stock under and pursuant to the within Warrant,
---
and (ii) on a non-exclusive basis, all other rights of the undersigned under and
pursuant to the within Warrant, it being understood that the undersigned shall
retain, severally (and not jointly) with the transferee(s) named herein, all
rights assigned on such non-exclusive basis. The undersigned does hereby
irrevocably constitute and appoint Attorney to
------------------------------
transfer the said Warrant on the books of the Company, with full power of
substitution.
--------------------------------------
[Type Name of Holder]
By:
--------------------------------------
Title:
--------------------------------------
Dated:
-----------
NOTICE
The signature to the foregoing Assignment must correspond to the name as
written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatsoever.
