Exhibit 10.20
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SENIOR LOAN AND SECURITY AGREEMENT NO.0096
THIS SENIOR LOAN AND SECURITY AGREEMENT NO.0096 (this "Security Agreement") is
dated as of August 29, 1997 between MATRITECH, INC., a Delaware corporation
("Borrower") and PHOENIX LEASING INCORPORATED, a California corporation
("Lender").
RECITALS
A. Borrower desires to borrow from Lender in one or more borrowings an
amount not to exceed $1,200,000 in the aggregate, and Lender desires to loan,
subject to the terms and conditions herein set forth, such amount to Borrower
(each, a "Loan" and collectively, the "Loans"). Such borrowings shall be
evidenced by one or more Senior Secured Promissory Notes (each, a "Note" and
collectively, the "Notes"), in the form attached hereto.
B. As security for Borrower's obligations to Lender under this Security
Agreement, the Notes and any other agreement between Borrower and Lender,
Borrower will grant to Lender hereunder a first perfected security interest in
certain of its equipment, machinery, fixtures, other items and intangibles
including but not limited to a security access card system, computer, laboratory
and test equipment, whether now owned by Borrower or hereafter acquired, and all
substitutions and replacements of and additions, improvements, accessions and
accumulations to said equipment, machinery and fixtures and other items,
together with all rents, issues, income, profits and proceeds therefrom
(collectively, the "Collateral") which is described on the Note attached hereto
or any subsequently-executed Note entered into by Lender and Borrower and which
incorporates this Security Agreement by reference. In addition to the foregoing
Collateral, under certain circumstances Borrower's obligations to Lender may
also be secured by certain "Additional Security" as provided below, in which
case the term "Collateral" shall include such Additional Security.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
SECTION 1. TERM OF AGREEMENT. The term of this Security Agreement begins on the
date set forth above and shall continue thereafter and be in effect so long as
and at any time any Note entered into pursuant to this Security Agreement is in
effect. The 48 month base term and monthly payment amount payable with respect
to each item of Collateral shall be as set forth in and as stated in the
respective Note(s). The terms of each Note hereto are subject to all conditions
and provisions of this Security Agreement as it may at any time be amended. Each
Note shall constitute a separate and independent Loan and contractual obligation
of Borrower and shall incorporate the terms and conditions of this Security
Agreement and any additional provisions contained in such Note. In the event of
a conflict between the terms and conditions of this Security Agreement and any
provisions of such Note, the provisions of such Note shall prevail with respect
to such Note only.
SECTION 2. NON-CANCELABLE LOAN. This Security Agreement and each Note cannot be
canceled or terminated except as expressly provided herein. Borrower agrees that
its obligations to pay all monthly payment amounts and other sums payable
hereunder (and under any Note) and the rights of Lender and any assignee in and
to such rent and other sums, are absolute and unconditional and are not subject
to any abatement, reduction, setoff, defense, counterclaim or recoupment due or
alleged to be due to, or by reason of, any past, present or future claims which
Borrower may have against Lender, any assignee, the manufacturer or seller of
the Collateral, or against any person for any reason whatsoever.
SECTION 3. LENDER COMMITMENT. (a) General Terms. Subject to the terms and
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conditions of this Security Agreement and so long as no Event of Default or
event which with the giving of notice or passage of time, or both, could become
an Event of Default has occurred or is continuing, Lender hereby agrees to make
one or more senior secured Loans to Borrower, subject to the following
conditions: (i) each Loan shall be evidenced by a Note; (ii) the total principal
amount of the Loans shall not exceed $1,200,000 in the aggregate (the
"Commitment") provided
that no more than $25,000 may be used to finance computers; (iii) at the time of
each Loan, no Event of Default or event which with the giving of notice or
passage of time, or both, could become an Event of Default shall have occurred
and be continuing, as reasonably determined by Lender, and certified by
Borrower; (iv) the amount of each Loan, which shall occur no more than monthly,
shall be at least $35,000 except for a final Loan which may be less than
$35,000; (v) Lender shall not be obligated to make any Loan after December 31,
1997 provided that the funding period may be extended to June 30, 1998 if Lender
has received and approved in its sole discretion Borrower's calendar 1998
monthly financial plan ("1998 Business Plan") and no Events of Default have
occurred; (vi) for each Loan, Borrower shall present to Lender a list of
proposed Collateral for approval by Lender in its sole discretion; (vii) for
each Loan, Borrower shall have provided Lender with each of the closing
documents described in Exhibit A hereto (which documents shall be in form and
substance acceptable to Lender); (viii) at all fundings Borrower is performing
according to its business plan referred to as "Proforma Cash Flow -1997
Operating Plan" fax dated April 28, 1997, two pages, (the "Business Plan"), as
may be amended from time to time in form and substance acceptable to Lender;
(ix) there shall be no material adverse change in Borrower's condition,
financial or otherwise, as reasonably determined by Lender, and Borrower so
certifies, from (yy) the date of the most recent financial statements delivered
by Borrower to Lender to (zz) the date of the proposed Loan; (x) Borrower shall
use the proceeds of all Loans hereunder for working capital; (xi) at the time of
each Loan, Borrower has reimbursed Lender for all UCC filing and search costs
and appraisal fees; (xii) all Collateral has been marked and labeled by Lender
or Lender's agent; and (xiii) Lender has received in form and substance
acceptable to Lender: (a) Borrower's interim financial statements signed by a
financial officer of Borrower, and (b) complete copies of the Borrower's audit
reports for its most recent fiscal year, which shall include at least Borrower's
balance sheet as of the close of such year, and Borrower's statement of income
and retained earnings and of changes in financial position for such year,
prepared on a consolidated basis and certified by independent public
accountants. Such certificate shall not be qualified or limited because of
restricted or limited examination by such accountant of any material portion of
the company's records. Such reports shall be prepared in accordance with
generally accepted accounting principles and practices consistently applied.
Lender acknowledges receipt of satisfactory evidence of the bona fide progress
of Borrower's $10,000,000 equity financing and of Borrower's $6,160,000 cash
position as of February 28, 1997.
(b) The Notes. Each Loan shall be evidenced by a Note which may not be
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prepaid in whole or in part. Each Note shall bear interest and be payable at the
times and in the manner provided therein. Following payment of the Indebtedness
related to each Note, Lender shall return such Note, marked "canceled," to
Borrower.
SECTION 4. SECURITY INTERESTS. (a) Borrower hereby grants to Lender a first
security interest in all Collateral; (b) This Security Agreement secures (i) the
payment of the principal of and interest on the Notes and all other sums due
thereunder and under this Security Agreement (the "Indebtedness") and (ii) the
performance by Borrower of all of its other covenants now or hereafter existing
under the Notes, this Security Agreement and any other obligation owed by
Borrower to Lender (the "Obligations").
SECTION 5. BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants that (a) it is in good standing under the laws of the state of its
formation, duly qualified to do business and will remain duly qualified during
the term of each Loan in each state where necessary to carry on its present
business and operations, including the jurisdiction(s) where the Collateral will
be located as specified on each Exhibit A to each Note; (b) it has full
authority to execute and deliver this Security Agreement and the Notes and
perform the terms hereof and thereof, and this Security Agreement and the Notes
have been duly authorized, executed and delivered and constitute valid and
binding obligations of Borrower enforceable in accordance with their terms; (c)
the execution and delivery of this Security Agreement and the Notes will not
contravene any law, regulation or judgment affecting Borrower or result in any
breach of any agreement or other instrument binding on Borrower; (d) no consent
of Borrower's shareholders or holder of any indebtedness, or filing with, or
approval of, any governmental agency or commission, which has not already been
obtained or performed, as appropriate, is a
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condition to the performance of the terms of this Security Agreement or the
Notes; (e) there is no action or proceeding pending or threatened against
Borrower before any court or administrative agency which might have a materially
adverse effect on the business, financial condition or operations of Borrower;
(f) Borrower owns and will keep all of the Collateral free and clear of all
liens, claims and encumbrances, and, except for this Security Agreement, there
is no deed of trust, mortgage, security agreement or other third party interest
against any of the Collateral; (g) Borrower has good and marketable title to the
Collateral; (h) all Collateral has been received, installed and is ready for use
and is satisfactory in all respects for the purposes of this Security Agreement;
(i) the Collateral is, and will remain at all times under applicable law,
removable personal property, which is free and clear of any lien or encumbrance
except in favor of Lender, notwithstanding the manner in which the Collateral
may be attached to any real property; (j) all credit and financial information
submitted to Lender herewith or at any other time is and will at the time given
be true and correct; and (k) provided Lender has filed UCC- 1 financing
statements timely executed by Borrower, the security interest granted to Lender
hereunder is a perfected first priority security interest.
SECTION 6. METHOD AND PLACE OF PAYMENT. Borrower shall pay to Lender, at such
address as Lender specifies in writing, all amounts payable to it under this
Security Agreement and the Notes.
SECTION 7. LOCATION; INSPECTION; LABELS. All of the Collateral shall be located
at the address (the "Collateral Location") shown on Exhibit A to each Note and
shall not be moved without Lender's prior written consent which location shall
in all events be within the United States. All of the records regarding the
Collateral shall be located at 000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000. Lender shall
have the right to inspect Collateral, including records relating thereto, and
Borrower's books and records at any time (upon reasonable notification) during
regular business hours, such books and records to be maintained in accordance
with generally accepted accounting principles. Borrower shall be responsible for
all labor, material and freight charges incurred in connection with any removal
or relocation of Collateral which is requested by Borrower and consented to by
Lender, as well as for any charges due to the installation or moving of the
Collateral. Payments under the Notes and under this Security Agreement shall
continue during any period in which the Collateral is in transit during a
relocation. Lender or its agent shall xxxx and label Collateral, winch labels
(to be provided by Lender) shall state that such Collateral is subject to a
security interest of Lender, and Borrower shall keep such labels on the
Collateral as so labeled.
SECTION 8. COLLATERAL MAINTENANCE. (a) General. Borrower will reasonably permit
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Lender to inspect each item of Collateral and its maintenance records. Borrower
will at its sole expense comply with all applicable laws, rules, regulations,
requirements and orders with respect to the use, maintenance, repair, condition,
storage and operation of each item of Collateral. Except as required herein,
Borrower will not make any addition or improvement to any item of Collateral
that is not readily removable without causing material damage to any item or
impairing its original value or utility. Any addition or improvement that is so
required or cannot be so removed will immediately become Collateral of Lender.
(b) Service and Repair. Borrower will at its sole expense maintain and service
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and repair any damage to each item of Collateral in a manner consistent with
prudent industry practice and Borrower's own practice so that such item of
Collateral is at all times (i) in the same condition as when delivered to
Borrower, except for ordinary wear and tear, and (ii) in good operating order
for the function intended by its manufacturer's warranties and recommendations.
SECTION 9. LOSS OR DAMAGE. Borrower assumes the entire risk of loss to the
Collateral through use, operation or otherwise. Borrower hereby indemnifies and
holds harmless Lender from and against all claims, loss of Loan payments, costs,
damages, and expenses relating to or resulting from any loss, damage or
destruction of the Collateral, any such occurrence being hereinafter called a
"Casualty Occurrence." On the first day payment is due on each Note following
the Casualty Occurrence or, if there is no such payment date, thirty (30) days
after such Casualty Occurrence Borrower shall pay to Lender an amount equal to
the Balance Due (as defined below) for each
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lost or damaged item of Collateral. The Balance Due for each such item is the
sum of: (i) all amounts for each item which may be then due or accrued to the
payment date, plus (ii) as of such payment date, an amount equal to the product
of the fraction specified below times the sum of all remaining payments under
the respective Note, including the amount of any mandatory or optional payment
required or permitted to be paid by Borrower to Lender at the maturity of the
Note. The numerator of the fraction shall be the Collateral Value (as set forth
on the applicable Note) of the item and the denominator shall be the aggregate
Collateral Value of all items under the Note. Upon the making of such payments,
Lender shall release such item of Collateral from its lien hereunder.
Notwithstanding the above, within thirty (30) days following a Casualty
Occurrence, Borrower may repair the Collateral or replace any item of Collateral
which has suffered a Casualty Occurrence with Collateral acceptable to Lender in
its complete discretion and, in such event, the provisions of the previous
paragraph shall not apply. Borrower's tender of such Collateral shall constitute
a representation and warranty that it is free of all liens, claims and
encumbrances and otherwise qualifies as Collateral under this Security
Agreement. Following such tender, Lender shall have a first security interest in
such Collateral.
All insurance proceeds from policies required to be maintained hereunder
received by or payable to Lender on account of a Casualty Occurrence shall be
released to the vendor of the replacement item of Collateral upon Borrower's
request if (i) no Event of Default has occurred and is continuing hereunder, and
(ii) Lender has received an invoice from the vendor describing the replacement
item of Collateral.
If Lender has received from Borrower the Balance Due and all other payments due
with respect to the item of Collateral which has suffered a Casualty Occurrence,
all insurance proceeds received by Lender thereafter or payable on account of
the Casualty Occurrence shall be paid to Borrower as it may direct.
SECTION 10. INSURANCE. Borrower at its expense shall keep the Collateral insured
against all risks of physical loss for at least the replacement value of the
Collateral and in no event for less than the amount payable following a Casualty
Occurrence (as provided in Section 9). Such insurance shall provide for a loss
payable endorsement 'to Lender and/or any assignee of Lender. Borrower shall
maintain commercial general liability insurance with respect to loss or damage
for personal injury, death or property damage in an amount not less than
$2,000,000 in the aggregate, naming Lender and/or Lender's assignee as
additional insured. Such insurance shall contain insurer's agreement to give
thirty (30) days' advance written notice to Lender before cancellation or
material change of any policy of insurance. Borrower will provide Lender and any
assignee of Lender with a certificate of insurance from the insurer evidencing
Lender's or such assignee's interest in the policy of insurance. Such insurance
shall cover any Casualty Occurrence to any unit of Collateral. Notwithstanding
anything in Section 9 or this Section 10 to the contrary, this Security
Agreement and Borrower's obligations hereunder shall remain in full force and
effect with respect to any unit of Collateral which is not subject to a Casualty
Occurrence. If Borrower fails to provide or maintain insurance as required
herein, Lender shall have the right, but shall not be obligated, to obtain such
insurance. In that event, Borrower shall pay to Lender the cost thereof.
SECTION 11. MISCELLANEOUS AFFIRMATIVE COVENANTS. So long as any portion of the
Indebtedness is unpaid and as long as any of the Obligations are outstanding
Borrower will: (a) duly pay all governmental taxes and assessments at the time
they become due and payable; (b) comply with all applicable governmental laws,
rules and regulations relating to its business and the Collateral; (c) maintain
Lender's security interest in the Collateral as a first and prior perfected
security interest; (d) furnish Lender with copies of its Forms 10-K and 10-Q
when filed with the Securities and Exchange Commission; and (e) promptly (but in
no event more than five (5) days after the occurrence of such event) notify
Lender of any material adverse change in Borrower's condition during the
commitment period and of the occurrence of any Event of Default.
SECTION 12. INDEMNITIES. Borrower will protect, indemnify and save harmless
Lender and any assignees on an after-tax basis from and against all liabilities,
obligations, claims, damages, penalties, causes of action, costs
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and expenses (including reasonable attorneys' fees and expenses), imposed upon
or incurred by or asserted against Lender or any assignee of Lender by Borrower
or any third party by reason of the occurrence or existence (or alleged
occurrence or existence) of any act or event relating to or caused by any
portion of the Collateral, or its purchase, acceptance, possession, use,
maintenance or transportation, including without limitation, consequential or
special damages of any kind, any failure on the part of Borrower to perform or
comply with any of the terms of this Security Agreement or any Note, claims for
latent or other defects, claims for patent, trademark or copyright infringement
and claims for personal injury, death or property damage, including those based
on Lender's negligence or strict liability in tort and excluding only those
based on Lender's gross negligence or willful misconduct. In the event that any
action, suit or proceeding is brought against Lender by reason of any such
occurrence, Borrower, upon Lender's request, will, at Borrower's expense, resist
and defend such action, suit or proceeding or cause the same to be resisted and
defended by counsel approved by Lender, such approval not to be unreasonably
withheld. Borrower's obligations under this Section 12 shall survive the payment
in full of all the Indebtedness and the performance of all Obligations with
respect to acts or events occurring or alleged to have occurred prior to the
payment in full of all the Indebtedness and the performance of all Obligations.
SECTION 13. TAXES. Borrower agrees to reimburse Lender (or pay directly if
instructed by Lender) and any assignee of Lender for, and to indemnify and hold
Lender and any assignee harmless from, all fees (including, but not limited to,
license, documentation, recording and registration fees), and all sales, use,
gross receipts, personal property, occupational, value added or other taxes,
levies, imposts, duties, assessments, charges, or withholdings of any nature
whatsoever, together with any penalties, fines, additions to tax, or interest
thereon (the foregoing collectively "Impositions"), except same as may be
attributable to Lender's income, arising at any time prior to or during the term
of any Notes or of this Security Agreement, or upon termination or early
termination of this Security Agreement and levied or imposed upon Lender
directly or otherwise by any Federal, state or local government in the United
States or by any foreign country or foreign or international taxing authority
upon or with respect to (a) the Collateral, (b) the exportation, importation,
registration, purchase, ownership, delivery, leasing, financing, possession,
use, operation, storage, maintenance, repair, return, sale, transfer of title,
or other disposition thereof, (c) the rentals, receipts, or earnings arising
from the Collateral, or any disposition of the rights to such rentals, receipts,
or earnings, (d) any payment pursuant to this Security Agreement or the Notes,
or (e) this Security Agreement, the Notes or any transaction or any part hereof
or thereof.
SECTION 14. RELEASE OF LIENS. Upon payment of all of the Indebtedness and
performance of all of the Obligations, Lender shall execute UCC termination
statements and such other documents as Borrower shall reasonably request to
evidence the release of Lender's lien relating to the Collateral.
SECTION 15. ASSIGNMENT. WITHOUT LENDER'S PRIOR WRITTEN CONSENT WHICH CONSENT
WILL NOT BE UNREASONABLY WITHHELD, BORROWER SHALL NOT (a) ASSIGN, TRANSFER,
PLEDGE, HYPOTHETICAL OR OTHERWISE DISPOSE OF THIS SECURITY AGREEMENT, ANY NOTE,
ANY COLLATERAL, OR ANY INTEREST THEREIN, (1))LEASE OR LEND COLLATERAL OR PERMIT
IT TO BE USED BY ANYONE OTHER THAN BORROWER OR BORROWER'S EMPLOYEES OR (c)
MERGE INTO, CONSOLIDATE WITH OR CONVEY OR TRANSFER ITS PROPERTIES SUBSTANTIALLY
AS AN ENTIRETY TO ANY OTHER PERSON OR ENTITY. LENDER MAY ASSIGN ANY OF THE
NOTES, THIS SECURITY AGREEMENT OR ITS SECURITY INTEREST IN ANY OR ALL
COLLATERAL, OR ANY OR ALL OF THE ABOVE, IN WHOLE OR IN PART TO ONE OR MORE
ASSIGNEES OR SECURED PARTIES WITHOUT NOTICE TO BORROWER. if Borrower is given
notice of such assignment it agrees to acknowledge receipt thereof in writing
and Borrower shall execute such additional documentation as Lender's assignee
and/or secured party shall reasonably require. Each such assignee and/or secured
party shall have all of the rights, but (except as provided in this Section 15)
none of the obligations, of Lender under this Security Agreement, unless such
assignee or secured party expressly agrees to assume such obligations in
writing. Lender shall retain the obligation to fund each Loan hereunder.
Borrower shall not assert against any assignee and/or secured party any defense,
counterclaim or offset that Borrower may have against Lender. Notwithstanding
any
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such assignment, and providing no Event of Default has occurred and is
continuing, Lender, or its assignees, secured parties, or their agents or
assigns, shall not interfere with Borrower's right to quietly enjoy use of
Collateral subject to the terms and conditions of this Security Agreement.
Subject to the foregoing, the Notes and this Security Agreement shall inure to
the benefit O{ and are binding upon, the successors and assignees of the parties
hereto. Borrower acknowledges that any such assignment by Lender will not change
Borrower's duties or obligations under this Security Agreement and the Notes or
increase any burden or risk on Borrower.
SECTION 16. DEFAULT. (a) Events of Default. Any of the following events or
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conditions shall constitute an "Event of Default" hereunder: (i) Borrower's
failure to pay any monies due to Lender hereunder or under any Note beyond the
fifth (5th) day after the same is due; (ii) Borrower's failure to comply with
its obligations under Section 10 or Section 15; (iii) any representation or
warranty of Borrower made in this Security Agreement or the Notes or in any
other agreement, statement or certificate furnished to Lender in connection with
this Security Agreement or the Notes shall prove to have been incorrect in any
material respect when made or given; (iv) Borrower's failure to comply with or
perform any term, covenant or condition of this Security Agreement or any Note
or under any other agreement between Borrower and Lender or under any lease or
mortgage of real property covering the location of the Equipment if such failure
to comply or perform is not cured by Borrower within five (5) days after
Borrower knows of the noncompliance or nonperformance or notice from Lender; (v)
seizure of any of the Collateral under legal process; (vi) the filing by or
against Borrower or any guarantor under any guaranty executed in connection with
this Security Agreement ("Guarantor") of a petition for reorganization or
liquidation under the Bankruptcy Code or any amendment thereto or under any
other insolvency law providing for the relief of debtors; (vii) the voluntary or
involuntary making of an assignment of a substantial portion of its assets by
Borrower or by any Guarantor for the benefit of its creditors, the appointment
of a receiver or trustee for Borrower or any Guarantor or for any of Borrower's
or Guarantor's assets, the institution by or against Borrower or any Guarantor
of any formal or informal proceeding for dissolution, liquidation, settlement of
claims against or winding up of the affairs of Borrower or any Guarantor
provided that in the case of all such involuntary proceedings, same are not
dismissed within sixty (60) days after commencement; (viii) the making by
Borrower or by any Guarantor of a transfer of all or a material portion of
Borrower's or Guarantor's assets or inventory not in the ordinary course of
business; or (ix) any default or breach by any Guarantor of any of the terms of
its guaranty to Lender in connection with this Security Agreement.
(b) Remedies. If any Event of Default has occurred, Lender may in its sole
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discretion exercise one or more of the following remedies with respect to any or
all of the Collateral: (i) declare due any or all of the aggregate sum of all
remaining payments under the Notes, including the amount of any mandatory or
optional payment required or permitted to be paid by Borrower to Lender at the
maturity of the Notes ("Remaining Payments"); (ii) proceed by appropriate court
action or actions either at law or in equity to enforce Borrower's performance)
of the applicable covenants of the Notes and this Security Agreement or to
recover all damages and expenses incurred by Lender by reason of an Event of
Default; (iii) without court order or prior demand, enter upon the premises
where the Collateral is located and take immediate possession of and remove it
without liability of Lender to Borrower or any other person or entity; (iv)
terminate this Security Agreement and sell the Collateral at public or private
sale, or otherwise dispose of, hold, use or lease any or all of the Collateral;
or (v) exercise any other right or remedy available to it under applicable law.
If Lender has declared due any or all of the Remaining Payments, Borrower will
pay immediately to Lender (A) the Remaining Payments, (B) all amounts which may
be then due or accrued, and (C) all other amounts due under this Security
Agreement and under the Notes (Lender's Return, as referred to below, means the
amounts described in clauses (A), (B) and (C) above). The net proceeds of any
sale or lease of such Collateral will be credited against Lender's Return. The
net proceeds of a sale of the Collateral pursuant to this Section 16(b) is
defined as the sales price of the Collateral less selling expenses, including,
without limitation, costs of remarketing the Collateral and all refurbishing
costs and commissions paid with respect to such remarketing. The net proceeds of
a lease of the Collateral pursuant to this Section 16(b) is defined as the
amount equal to the monthly payments due under such lease (discounted at a rate
per annum equal to the 3-year Treasury Xxxx yield as of the date on which Lender
notifies Borrower that this Security Agreement is
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terminated (the "Termination Date") (as such yield is reported in the most
recent Federal Reserve Statistical Release H. 15 (519) ("Statistical Release")
(the "Discount Rate")) plus the residual value of the Collateral at the end of
the basic term of such lease, as reasonably determined by Lender, and discounted
at the Discount Rate.
In addition to the foregoing remedies, Lender may apply the security
deposit pledged to Lender pursuant to Section 25, (A) to compensate Lender for
losses or damages sustained as a result of such Event of Default; and/or (B) to
reimburse Lender for costs and expenses, including reasonable attorney's fees,
incurred by Lender in connection with such failure to perform, whether or not
litigation or other judicial proceedings are commenced. Any surplus remaining
thereafter shall be retained by Lender as security hereunder.
Borrower agrees to pay all reasonable out-of-pocket costs of Lender
incurred in enforcement of this Security Agreement, the Notes or any instrument
or agreement required under this Security Agreement, including, but not limited
to attorneys' fees and litigation expenses and fees of collection agencies
("Remedy Expenses"). At Lender's request, Borrower shall assemble the Collateral
and make it available to Lender at such time and location as Lender may
designate. Borrower waives any right it may have to redeem the Collateral.
Declaration that any or all amounts under this Security Agreement and/or
the Notes are immediately due and payable and Lender's taking possession of any
or all Equipment shall not terminate this Security Agreement or any of the Notes
unless Lender so notifies Borrower in writing. None of the above remedies is
intended to be exclusive but each is cumulative and may be enforced separately
or concurrently.
(c) Application of Proceeds. The proceeds of any sale of all or any part of
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the Collateral and the proceeds of any remedy afforded to Lender by this
Security Agreement shall be paid to and applied as follows:
First, to the payment of reasonable costs and expenses of suit or
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foreclosure, if any, and of the sale, if any, including, without limitation,
refurbishing costs, costs of rernarketing and commissions related to
remarketing, all Remedy Expenses, all expenses, liabilities and advances
incurred or made pursuant to this Security Agreement or any Note by Lender in
connection with foreclosure, suit, sale or enforcement of this Security
Agreement or the Notes, and taxes, assessments or liens superior to Lender's
security interest granted by this Security Agreement;
Second, to the payment of all other amounts not described in item
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Third below due under this Security Agreement and all Notes;
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Third, to pay lender an amount equal to Lender's Return, to the
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extent not previously paid by Borrower; and
Fourth, to the payment of any surplus to Borrower or to whomever may
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lawfully be entitled to receive it.
(d) Effect of Delay; Waiver; Foreclosure on Collateral. No delay or
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omission of Lender, in exercising any right or power arising from any Event of
Default shall prevent Lender from exercising that right or power if the Event of
Default continues. No waiver of an Event of Default, whether full or partial, by
Lender or such holder shall be taken to extend to any subsequent Event of
Default, or to impair the rights of Lender in respect of any damages suffered as
a result of the Event of Default. The giving, taking or enforcement of any other
or additional security, collateral or guaranty for the payment or discharge of
the Indebtedness and performance of the Obligations shall in no way operate to
prejudice, waive or affect the security interest created by this Security
Agreement or any rights, powers or remedies exercised hereunder or thereunder.
Lender shall not be required first to foreclose on the Collateral prior to
bringing an action against Borrower for sums owed to Lender under this Security
Agreement or under any Note.
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SECTION 17. LATE PAYMENTS. Borrower shall pay Lender a late charge in an amount
equal to 10% of each monthly payment and other payments, if any, owed Lender by
Borrower which are not paid when due, for every month such payment is not paid
when due, but in no event an amount greater than the highest rate permitted by
applicable law. If such amounts have not been received by Lender at Lender's
place of business or by Lender's designated agent by the date such amounts are
due under this Security Agreement or the Notes, Lender shall xxxx Borrower for
such charges. Borrower acknowledges that invoices for amounts due hereunder or
under the Notes are sent by Lender for Borrower's convenience only. Borrower's
non-receipt of an invoice will not relieve Borrower of its obligation to make
payments hereunder or under the Notes.
SECTION 18. PAYMENTS BY LENDER. If Borrower shall fail to make any payment or
perform any act required hereunder (including, but not limited to, maintenance
of any insurance required by Section 10, then Lender may, but shall not be
required to, after such notice to Borrower as is reasonable under the
circumstances, make such payment or perform such act with the same effect as if
made or performed by Borrower. Borrower will upon demand reimburse Lender for
all sums paid and all costs and expenses incurred in connection with the
performance of any such act.
SECTION 19. FINANCING STATEMENTS. Borrower will execute all financing statements
pursuant to the Uniform Commercial Code and all such other documents reasonably
requested by Lender to perfect Lender's security interests hereunder. Borrower
authorizes Lender to file financing statements signed only by Lender (where such
authorization is permitted by law) at all places where Lender deems necessary.
SECTION 20. NATURE OF TRANSACTION: Lender makes no representation whatsoever,
express or implied, concerning the legal character of the transaction evidenced
hereby, for tax or any other purpose.
SECTION 21. SUSPENSION OF LENDER'S OBLIGATIONS. The obligations of Lender
hereunder will be suspended to the extent that Lender is hindered or prevented
from complying therewith because of labor disturbances, including but not
limited to strikes and lockouts, acts of God, fires, floods, storms, accidents,
industrial unrest, acts of war, insurrection, riot or civil disorder, any order,
decree, law or governmental regulations or interference, failure of the
manufacturer to deliver any item of Collateral or any cause whatsoever not
within the sole and exclusive control of Lender.
SECTION 22. LENDER'S EXPENSE. Borrower shall pay Lender all costs and expenses
including reasonable attorney's fees and the fees of collection agencies,
incurred by Lender (a) in enforcing any of the terms, conditions or provisions
hereof and related to the exercise of its remedies, and (b) in connection with
any bankruptcy or post-judgment proceeding, whether or not suit is filed and, in
each and every action, suit or proceeding, including any and all appeals and
petitions therefrom.
SECTION 23. ALTERATIONS; ATTACHMENTS. No alterations or attachments shall be
made to the Collateral without Lender's prior written consent, which shall not
be given for changes that will affect the reliability and utility of the
Collateral or which cannot be removed without damage to the Collateral, or which
in any way affect the value of the Collateral for purposes of resale or lease.
All attachments and improvements to the Collateral shall be deemed to be
"Collateral" for purposes of the Security Agreement, and a first priority
security interest therein shall immediately vest in Lessor.
SECTION 24. CHATTEL PAPER. (a) One executed copy of the Security Agreement will
be marked "Original" and all other counterparts will be duplicates. To the
extent, if any, that this Security Agreement constitutes chattel paper (as such
term is defined in the Uniform Commercial Code as in effect in any applicable
jurisdiction) no security interest in the Security Agreement may be created in
any documents other than the "Original." (b) There shall be only one original of
each Note and it shall be marked "Original," and all other counterparts will be
8
duplicates. To the extent, if any, that any Notes(s) to this Security Agreement
constitutes chattel paper (or as such term is defined in the Uniform Commercial
Code as in effect in any applicable jurisdiction) no security interest in any
Note(s) may be created in any documents other than the "Original."
SECTION 25. ADDITIONAL SECURITY (CASH). For each Note executed by Borrower
hereunder, before Lender's funding of the Note, Borrower shall provide to
Lender, as security for the timely performance and payment by Borrower of its
obligations hereunder, cash in a dollar amount equal to one monthly payment due
under each Note of 2.596% of the Collateral's value as set forth on Exhibit A to
such Note ("Additional Security").
Provided (a) no Event of Default hereunder has occurred or is continuing, (b)
Lender is satisfied that Borrower has theretofore continuously performed
according to its Business Plan and (c) Lender has timely received from Borrower
all monthly note payments, then Lender shall apply the Additional Security
prorata to Borrower's End of Loan Position Requirement and Elections (as defined
in Section 30, Additional Interest Compensation) as follows:
(a) against the 20% payment due with respect to any Note for the security
access card system Collateral and custom equipment Collateral, and
(b) if Election No.1 is chosen with respect t6 any Note for standard
Collateral, against the fair market value payment relative to such Collateral,
or
(c) if Election No.2 is chosen with respect to any Note for standard
Collateral, against the tenth (10th) monthly payment due under any extension for
such standard Collateral.
If an Event of Default by Borrower occurs hereunder, the amount of the
Additional Security for any Note then retained by Lender, together with any
interest thereon, shall be applied against the amount of Borrower's default
obligation. In such event, Lender may apply all or part of the Additional
Security for the following purposes:
(a) to compensate Lender for losses or damages sustained as a result of
such Event of Default; and/or
(b) to reimburse Lender for costs and expenses, including reasonable
attorney's fees, incurred by Lender in connection with such failure to perform,
whether or not litigation or other judicial proceedings are commenced. Any
surplus remaining thereafter shall be retained by Lender as security hereunder.
Provided no Event of Default has occurred and is continuing under this Security
Agreement, upon payment by Borrower of all obligations under the Note, any
Additional Security, if any, held by Lender for such Note shall be returned to
Borrower.
SECTION 26. DUE DILIGENCE/NON-UTILIZATION FEE. Borrower has paid to Lender a fee
("Fee") of $10,000.00. The Fee shall be applied by Lender first to reimburse
Lender for all out-of-pocket UCC and other search costs, inspections and
labeling costs and appraisal fees, if any, incurred by Lender, and then
proportionally to the first monthly payment for each Note hereunder in the
proportion that the Collateral value for such Note bears to Lender's entire
commitment. However, the portion of the Fee which is not applied to such monthly
payments shall be non-refundable except if Lender defaults in its obligation to
fund Loans pursuant to Section 3.
SECTION 27. NOTICES. All notices hereunder shall be in writing, by registered
mail, or reliable messenger or delivery service and shall be directed, as the
case may be, to Lender at 0000 Xxxxxx Xxxxxxxxx, Xxx Xxxxxx, Xxxxxxxxxx 00000,
Attention: Asset Management and to Borrower at 000 Xxxxxx Xxxxxx, Xxxxxx, XX
00000, Attention: Xxxxxx X. Xxxx.
SECTION 28. MISCELLANEOUS. (a) Borrower shall provide Lender with such corporate
resolutions, financial statements and other documents as Lender shall reasonably
request from time to time. (b) Borrower represents that
9
the Collateral hereunder is used solely for business purposes. (c) Time is of
the essence with respect to this Security Agreement. (d) Borrower acknowledges
that Borrower has read this Security Agreement and the Notes, understands them
and agrees to be bound by their terms and further agrees that this Security
Agreement and the Notes constitute the entire agreement between Lender and
Borrower with respect to the subject matter hereof and supersede all previous
agreements, promises, or representations. (e) This Security Agreement and the
Notes may not be changed, altered or modified except by an instrument signed by
an officer or authorized representative of Lender and Borrower. (f) Any failure
of Lender to require strict performance by Borrower or any waiver by Lender of
any provision herein or in a Note shall not be construed as a consent or waiver
of any other breach of the same or any other provision. (g) If any provision of
this Security Agreement or any Note is held invalid, such invalidity shall not
affect any other provisions hereof or thereof. (h) The obligations of Borrower
to pay the Indebtedness and perform the Obligations shall survive the expiration
or earlier termination of this Security Agreement and each Note until all
Obligations of Borrower to Lender have been met and all liabilities of Borrower
to Lender and any assignee have been paid in full. (i) Borrower will notify
Lender at least 30 days before changing its name, principal place of business or
chief executive office. (j) Borrower will, at its expense, promptly execute and
deliver to Lender such documents and assurances (including financing statements)
and take such further action as Lender may reasonably request in order to carry
out the intent of this Security Agreement and Lender's rights and remedies. (k)
Borrower hereby appoints Lender (and each of Lender's officers, employees or
agents designated by Lender), with full power of substitution by Lender, as
Borrower's attorney, with power to execute and deliver on Borrower's behalf
financing statements and other documents necessary to perfect and/or give notice
of Lender's security interest in any of the Collateral.
SECTION 29. JURISDICTION AND WAIVER OF JURY TRIAL. This Security Agreement and
the Notes shall be deemed to have been negotiated, entered into and performed in
the State of California and it is understood and agreed that the validity of
this Security Agreement and of any of the terms and provisions, of the Security
Agreement and Notes, as well as the rights and duties of Lender and Borrower,
shall be construed pursuant to and in accordance with the laws of the State of
California, without giving effect to conflicts of law principles. It is agreed
that exclusive jurisdiction and venue for any legal action between the parties
arising out of or relating to this Security Agreement and each Note shall be in
the Superior Court for Marin County, California, or, in cases where federal
diversity jurisdiction is available, in the United States District Court for the
Northern District of California situated in San Francisco. BORROWER, TO THE
EXTENT IT MAY LAWFULLY DO SO, HEREBY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY
ACTION BROUGHT ON OR WITH RESPECT TO THIS SECURITY AGREEMENT, ANY NOTE, ANY
SECURITY DOCUMENTS, OR ANY OTHER AGREEMENTS EXECUTED IN CONNECTION HEREWITH.
SECTION 30. ADDITIONAL INTEREST COMPENSATION: (a) General. If, and as any Note
-------
provides, Borrower shall be required (I) to make a final payment at the
expiration of the first Note's base term with respect to the Security Access
Card System Collateral and custom equipment Collateral or (2) to elect to make
either a final payment or Note extension election with respect to the first
Note's base term with respect to standard Collateral ("Additional Interest
Compensation"), then that requirement or election shall be Borrower's Additional
Interest Compensation requirement or election for all, but not less than all, of
the Collateral under all respective Notes under the Security Agreement.
Until Borrower makes the required payment with respect to any Note referenced in
(1) above, or notifies Lender of its Additional Interest Compensation election
with respect to any Note referenced in (2) above at least 90 days prior to the
end of the term of the first such Note, all Borrower's Obligations, including
payment of the monthly payment amount, shall continue in full force and effect,
on a month-to-month basis.
10
(b) End of Loan Position Requirements and Elections.
-----------------------------------------------
(i) For Security Access Card System Collateral and any custom equipment
Collateral Borrower shall make a final payment of 20% of such Collateral's value
as set forth on Exhibit A to the Note.
(ii) For standard equipment Collateral:
a) Election No.1: Make a final payment equal to the Collateral's fair
-------------
market value, in no event less than 10% nor more than 20% of the Collateral's
value as set forth on Exhibit A to the Note. Fair market value shall be
determined by Lender.
b) Election No.2: Extend the Note's base term for an additional 10
-------------
months ("Extended Term") for a monthly rate of 2.596% of the Collateral's value
as set forth on Exhibit A to the Note.
Following Borrower's timely notice to Lender of its election of either
Election No.1 or Election No. 2 above, if Borrower has elected Election No. 1
and fails to timely make the payment required under Election No. 1, Borrower
shall be deemed to have elected Election No.2.
SECTION 31. RATE ADJUSTMENT. For each Note funded after June 30, 1998, Borrower
and Lender agree that the initial loan rate factor of 2.596% ("the Initial Loan
Rate Factor"), will be adjusted based on the Funding Treasury Note Rate, as
defined below. Borrower and Lender agree that if the Funding Treasury Note Rate
is greater than 6.26%, the Initial Loan Rate Factor for the applicable Note
shall, at Lender's option, be adjusted. The adjustment shall be calculated so
that the new stream rate (calculated using the adjusted loan rate factor) minus
the Funding Treasury Note Rate is equal to 5.50%. Lender and Borrower agree that
in no event will the stream rate exceed 15% for any Note.
The term "Funding Treasury Note Rate" shall mean the average of the yields to
maturity of all "Govt. Bonds & Notes" as set forth in the Ask Yld." column of
the Wall Street Journal, Western Edition, "Treasury Bonds, Notes & Bills" report
published on June 1, 1998, having a maturity 48 months from June 1, 1998. If
there is no such government bond/note having such maturity 48 months from June
1, 1998, the Funding Treasury Note Rate shall be the average of such yields to
maturity of any such government bonds/notes so listed in the Wall Street Journal
having a maturity in the succeeding month which is closest to 48 months from
June 1, 1998.
The term "stream rate" shall mean the interest rate implicit with 48 payments of
the Adjusted Loan Rate Factor multiplied by the face amount of the new Note.
SECTION 32. ADJUST-A-LOAN OPTION: (a) General: After the first 12 months of the
-------
term of any Note, Borrower shall have the option to remove such Note's
Collateral ("Removed Collateral") and obtain financing from Lender for new
Collateral ("New Collateral") under a new Note ("New Note") subject to
subsection (d) below. ~) New Note Amount: The principal amount of the New Note
--- -----------
shall be an amount equal to the purchase price for the New Collateral plus a
prepayment figure for the Removed Collateral. The prepayment figure shall be the
original principal amount of the original Note ("Old Note") less: (i) any trade-
in value or resale proceeds received by Lender for the Removed Collateral and
(ii) a credit for Note payments already made (the total Old Note payments
attributable to the removed Collateral multiplied by the "Allowance Factor"
indicated in the table below). In no event shall the principal amount of the New
Note be less than original principal amount of the Old Note.
11
===============================================================================
Removal Date Allowance Factor
===============================================================================
After 12 Months of Old Note 55%
-------------------------------------------------------------------------------
After 24 Months of Old Note 60%
-------------------------------------------------------------------------------
After 36 Months of Old Note 65%
===============================================================================
(c) Old Note: If any item of Collateral remains on the Old Note, the monthly
--------
payment amount for the Old Note will be reduced in proportion to the Removed
Collateral's value. (d) Option Preconditions: Borrower's right to exercise this
--------------------
Adjust-A-Loan Option ("Option") is conditioned upon the following: (i) no Event
of Default under the Security Agreement has theretofore occurred or is
continuing; (ii) the New Collateral and prepayment of the Removed Collateral are
financed by Lender nnder a New Note, subject to Lender's then current loan rates
and documentation acceptable to Lender; (iii) Lender is satisfied with
Borrower's creditworthiness in its sole discretion; (iv) the New Collateral is
acceptable to Lender; and (v) Borrower has given Lender at least 90 days' prior
written notice of its desire to exercise the Option.
IN WITNESS WHEREOF, Borrower and Lender have caused this Security Agreement to
be executed as of the date and year first above written.
PHOENIX LEASING INCORPORATED MATRITECH, INC.
By: ________________________________ ______________________________________
Name: _____________________________ Name (Print): ________________________
Title: _____________________________ Title: _______________________________
HEADQUARTERS LOCATION:
------------ --------
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
County of Norfolk
EXHIBITS AND SCHEDULES:
-------- --- ----------
Exhibit A -- Closing Memorandum
12
NOTE NO.02
TO SENIOR LOAN AND SECURITY AGREEMENT
NO.0096
BETWEEN MATRITECH, INC.
AS BORROWER AND
PHOENIX LEASING INCORPORATED AS LENDER
SENIOR SECURED PROMISSORY NOTE
------ ------- ---------- ----
$286,378.65 October 20, 1997
----------------
FOR VALUE RECEIVED, the undersigned, MATRITECH, INC., a Delaware corporation
("Borrower"), hereby promises to pay to the order of Phoenix Leasing
Incorporated, or its assigns (the "Lender") the principal sum of Two Hundred
Eighty-six Thousand Three Hundred Seventy-eight and 65/100 Dollars
($286,378.65), together with interest on the decreasing balance of this
principal amount until the principal is fully repaid. On the last day of the
forty-eighth (48th) month the entire remaining unpaid principal balance,
together with interest accrued and unpaid, shall be due and payable. Principal
and interest shall be payable in consecutive monthly installments, each of which
shall be equal to the percentage specified below of the principal sum and in the
amounts each month specified below.
Month Payment Amount Percentage
----- -------------- ----------
1-48 $7,434.39 2.596%
The first payment shall be due on the first day of the month immediately
following the date of this Note (unless the date of this Note is the first day
of the month in which case the first payment is due on that day), and each
succeeding payment shall be made on the first day of each succeeding month. An
interim payment will be due on the same dates as the first payment for the
period from the date Lender funds the principal amount of this Note until the
first day of the following month and shall be equal to 1/30 of the monthly loan
payment multiplied by the number of days, if any, between (and including) the
funding date and the first day of the following month provided, however, no
interim payment will be due if the date of this Note is on or after the 20th day
of the month.
As additional interest compensation, on the first day of the forty-ninth (49th)
month Borrower shall either (a) pay to Lender an amount equal to the then Fair
Market Value of all of the Collateral described in Exhibit A to this Note,
provided that the amount of the payment shall be an amount which is not less
than ten percent (10%) or more than twenty percent (20%) of the original
principal amount of this Note, or provided no Event of Default has occurred,
(b)make the first payment of ten (10) additional consecutive monthly payments
each of which shall be in an amount equal to 2.596% of the original principal
amount of this Note. Following Borrower's timely notice to Lender of its
election of either (a) or (b) above, if Borrower has elected (a) and fails to
timely make the payment required under (a) above, Borrower shall be deemed to
have elected (b).
Fair Market Value shall be determined by Lender.
NOTE NO.02
TO SENIOR LOAN AND SECURITY AGREEMENT
NO.0096
BETWEEN MATRITECH, INC.
AS BORROWER AND
PHOENIX LEASING INCORPORATED AS LENDER
Borrower shall pay to Lender an amount equal to 10% of each monthly payment owed
Lender by Borrower which is not paid when due, for every month such payment is
not paid when due, but in no event an amount greater than the highest rate
permitted by applicable law.
This Note may not be prepaid in whole or in part.
Payments of principal and interest hereunder shall be made in lawful money of
the United States of America at the offices of Lender at 0000 Xxxxxx Xxxxxxxxx,
Xxx Xxxxxx, Xxxxxxxxxx 00000, or such other place as the Lender shall designate
to the Borrower in writing.
This Note is secured by a Senior Loan and Security Agreement, dated as of August
29, 1997 between Borrower and Lender (the "Security Agreement") and is entitled
to the benefits of the Security Agreement which contains, among other things,
provisions for (i) events of default and the Lender's rights and remedies
following an event of default (which include, but are not limited to,
acceleration of this Note), (ii) Collateral which secures the repayment of this
Note and is more particularly described on Exhibit A hereto, and (iii) other
rights and remedies of Lender.
This Note may be declared due prior to its expressed maturity date only in the
events, on the terms and in the manner provided in the Security Agreement.
This Note shall be construed and enforced in accordance with the laws of the
State of California, excluding principles of conflicts of laws.
The Borrower hereby expressly waives presentment for payment, demand for
payment, notice of dishonor, protest, notice of protest, notice of nonpayment,
and all lack of diligence or delays in collection or enforcement of this Note.
BORROWER:
MATRITECH, INC.
By: ____________________________________________
Its: _____________________________________________
EXHIBIT A to
SENIOR SECURED PROMISSORY NOTE NO. 02
(Insert Exhibit A here)
Amortization Schedule
Beginning Principal Ending
Balance Interest Payment Reduction Balance
---------- -------- -------- --------- -----------
1 286,378.65 7,434.39 7,434.39 278,944.26
2 278,944.26 2,732.79 7,434.39 4,701.60 274,242.66
3 274,242.66 2,686.73 7,434.39 4,747.66 269,495.00
4 269,495.00 2,640.21 7,434.39 4,794.18 264,700.82
5 264,700.82 2,593.25 7,434.39 4,841.14 259,859.68
6 259,859.68 2,545.82 7,434.39 4,888.57 254,971.11
7 254,971.11 2,497.93 7,434.39 4,936.46 250,034.64
8 250,034.64 2,449.56 7,434.39 4,984.83 245,049.81
9 245,049.81 2,400.73 7,434.39 5,033.66 240,016.15
10 240,016.15 2,351.41 7,434.39 5,082.98 234,933.18
11 234,933.18 2,301.62 7,434.39 5,132.77 229,800.40
12 229,800.40 2,251.33 7,434.39 5,183.06 224,617.34
13 224,617.34 2,200.55 7,434.39 5,233.84 219,383.51
14 219,383.51 2,149.28 7,434.39 5,285.11 214,098.39
15 214,098.39 2,097.50 7,434.39 5,336.89 208,761.50
16 208,761.50 2,045.21 7,434.39 5,389.18 203,372.33
17 203,372.33 1,992.42 7,434.39 5,441.97 197,930.36
18 197,930.36 1,939.10 7,434.39 5,495.29 192,435.07
19 192,435.07 1,885.27 7,434.39 5,549.12 186,885.95
20 186,885.95 1,830.90 7,434.39 5,603.49 181,282.46
21 181,282.46 1,776.01 7,434.39 5,658.38 175,624.07
22 175,624.07 1,720.57 7,434.39 5,713.82 169,910.26
23 169,910.26 1,664.59 7,434.39 5,769.80 164,140.46
24 164,140.46 1,608.07 7,434.39 5,826.32 158,314.14
25 158,314.14 1,550.99 7,434.39 5,883.40 152,430.73
26 152,430.73 1,493.35 7,434.39 5,941.04 146,489.69
27 146,489.69 1,435.14 7,434.39 5,999.25 140,490.45
28 140,490.45 1,376.37 7,434.39 6,058.02 134,432.43
29 134,432.43 1,317.02 7,434.39 6,117.37 128,315.06
30 128,315.06 1,257.09 7,434.39 6,177.30 122,137.76
31 122,137.76 1,196.57 7,434.39 6,237.82 115,899.94
32 115,899.94 1,135.46 7,434.39 6,298.93 109,601.01
33 109,601.01 1,073.75 7,434.39 6,360.64 103,240.37
34 103,240.37 1,011.44 7,434.39 6,422.95 96,817.41
35 96,817.41 948.51 7,434.39 6,485.88 90,331.53
36 90,331.53 884.97 7,434.39 6,549.42 83,782.11
37 83,782.11 820.80 7,434.39 6,613.59 77,168.53
38 77,168.53 756.01 7,434.39 6,678.38 70,490.15
39 70,490.15 690.58 7,434.39 6,743.81 63,746.34
40 63,746.34 624.52 7,434.39 6,809.87 56,936.47
41 56,936.47 557.80 7,434.39 6,876.59 50,059.88
42 50,059.88 490.43 7,434.39 6,943.96 43,115.92
43 43,115.92 422.40 7,434.39 7,011.99 36,103.93
44 36,103.93 353.71 7,434.39 7,080.68 29,023.25
45 29,023.25 284.34 7,434.39 7,150.05 21,873.20
46 21,873.20 214.29 7,434.39 7,220.10 14,653.10
47 14,653.10 143.55 7,434.39 7,290.84 7,362.26
48 7,362.26 72.13 7,434.39 7,362.26 (0.00)
Excludes Additional Interest as Specified in Senior Secured Promissory Note
OFFICER'S CERTIFICATE
--------- -----------
The undersigned, _______________________________, hereby certifies that:
(i) I am the _____________________ of MATRITECH, INC., a Delaware corporation
(the "Borrower");
(ii) as such officer, I am familiar with the terms and conditions of that
certain Senior Loan and Security Agreement (the "Security Agreement")
dated as of August 29, 1997 between Borrower and PHOENIX LEASING
INCORPORATED ("Lender");
(iii) the equipment, machinery, furniture, fixtures and other items on the
attached list are free and clear of any and all liens, charges, security
interests or other encumbrances that may affect Lender's right, title or
interest in and to the equipment and other items, and no UCC- 1 financing
statements or other grants of security interests have been or are in the
process of being filed against any of such equipment or other items;
(iv) Borrower is performing according to Borrower's business plan described in
Section 3 of the Security Agreement, a true copy of which business plan
has been delivered to Lender;
(v) there has been no material adverse change in the financial condition of
Borrower from the date of its most recent financial statements, true
copies of which have been delivered to Lender;
(vi) as of the date hereof, no Event of Default (as defined in the Security
Agreement) or event which with the giving of notice or passage of time, or
both, could become an Event of Default has occurred and is continuing; and
(vii) the representations and warranties in Section 5 of the Security Agreement
are true and correct as if made on the date of the Loan.
IN WITNESS WHEREOF, I hereby execute this certificate on this ____ day
of____________ 19__.
Phoenix Leasing Incorporated
Funding Request
Exhibit A
BORROWER: MATRITECH, INC.
------------------------
000 XXXXXX XXXXXX
XXXXXX, XX 00000
MASTER LOAN: 0096 NOTE: 01
------------------------ ----------------------
L IVOICED AMT
VENDOR NAME INVOICE BRIEF DESCRIPTION EQP SERIAL O NET OF
(ABBREVIATION OK) NO. OF ITEM COD NUMBER C SALES TAX
----------------------------------------------------------------------------------------------------
Ciphergen Bio 0000235-IN seldi mass spectrometer 2 NA 1 90,500.00
---------------------------------------------------------------------------------------------------
Biacore 40132780 2000 processing unit 2 33-9180-2327 1 195,878.65
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
NO ENTRY REQUIRED
------------------------
TAX PD
VENDOR NAME AMT PAID VENDOR? CHECK TRANSACT NET $ AMT. NET $ AMT.
(ABBREVIATION OK) BY BORROWER Y/N NO. DATE DUE BORROWER DUE VENDOR
-------------------------------------------------------------------------------------------
Ciphergen Bio 90,500.00 N 7422 8/22/97 $ 90,500.00 $ 0.00
--------------------------------------------------------------------------------------------
Biacore 195,878.65 N 6598 5/30/97 $195,878.65 $ 0.00
--------------------------------------------------------------------------------------------
TOTAL AMOUNT DU TO BORROWER $286,378.65
--------------------------------------------------------------------------------------------
TOTAL AMOUNT DUE TO VENDOR $ 0.00
------------------------------------
TOTAL DRAW $286,378.65
------------------------------------
BORROWER SIGNATURE: DATE:
------------------------------ -----------------
