Exhibit 10.45
LOAN & SECURITY AGREEMENT
THIS LOAN & SECURITY AGREEMENT ("Agreement") is this day of April, 2003, by and
between Molecular Diagnostics, Inc. ("Borrower" and sometimes referred to
herein as the "Debtor") a Delaware corporation, and Xx. Xxxxxxx Xxxxxxxxxx-
Xxxxxxxx ("Lender" and sometimes referred to herein as the "Secured Party")
individually.
RECITALS
WHEREAS, Borrower has borrowed, on or about February 26, 2003, the principal
amount of One Hundred Thousand and 00/100 Dollars ($100,000) from the Lender
(the "Previous Loan"); and
WHEREAS, Borrower now desires for Lender to lend to it an additional principal
amount of Nine Hundred Thousand and 00/100 Dollars ($900,000) and the Lender
desires to lend to Borrower that additional amount subject to the terms
conditions set forth herein.
NOW, THEREFORE, in consideration of the promises and covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Borrower and Lender hereby agree as follows:
1.0 DEFINITIONS; INTERPRETATION
Where applicable in the context of this Agreement and except as otherwise
defined herein, terms used in this Agreement shall have the meanings assigned
to them in the Uniform Commercial Code as in effect in the State of Illinois.
As used in this Agreement, the following terms shall have the following
meanings:
"Collateral" has the meaning set forth in Section 3 hereto.
"Days" means calendar days unless stated otherwise.
"Loan Documents" means this Agreement, the Note, such UCC-1 Financing
Statements as Lender shall require, together with all other documents,
instruments and agreements executed in connection with, or contemplated by such
documents and any amendments thereof.
"Note" means that certain 12% Convertible Secured Promissory Note, attached
hereto as Exhibit A, issued by the Borrower to the Secured Party of even date
herewith, as may be renewed, replaced, modified, waived or extended from time
to time.
"PTO" means the United States Patent and Trademark Office.
"UCC" means the Uniform Commercial Code as in effect in the State of Illinois.
In this Agreement, the following rules of construction and interpretation shall
be applicable: (i) no reference to "proceeds" in this Agreement authorizes any
sale, transfer, or other disposition of any Collateral by Debtor; (ii)
"includes" and "including" are not limiting; (iii) "or" is not exclusive, and
(iv) "all" includes "any" and "any" includes "all."
2.0 LOAN
2.1 LOAN AMOUNT & NOTE. Subject to the terms and conditions of this
Agreement, on the Closing Date, Lender agrees to loan to Borrower a principal
amount equal to- Nine Hundred Thousand and 00/ 100 Dollars ($900,000) which,
together with the Previous Loan amount (which, by execution of this Agreement,
the Borrower acknowledges the receipt thereof) equals One Million and 00/100
Dollars ($1,000,000) (the "Loan"). The Loan will be evidenced by the Note and
secured by the Loan Documents. Debtor shall repay the outstanding principal
amount of the Loan with interest thereon in the manner and in accordance with
the terms and conditions of the Note. Nine Hundred Thousand and 00/ 100 Dollars
($900,000) shall be advanced to Debtor in cash or otherwise immediately
available funds at the Closing.
2.2 USE OF LOAN PROCEEDS. The loan proceeds shall be used by the Borrower
solely to exercise its option to under that certain Option Agreement ("Option
Agreement") dated March 3, 2003, by and between Borrower and Round Valley
Capital, L.L.C. ("RVC") an Arizona limited liability company, to acquire
certain "Assets" (as such term is defined in the Option Agreement).
2.3 CLOSING. The closing ("Closing") of the transactions contemplated by
this Agreement shall take place no later than April 2, 2003, at 9:30 a.m., at
the offices of Xxxxxx, Lipton and Xxxxxxxxx Limited, 000 Xxxxx XxXxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx, or at such other time and location as the parties may
mutually agreed upon.
2.4 EVENTS OF DEFAULT. Each of the following shall be deemed an event of
default by Debtor (each, an "Event of Default"):
(i) If any representation or warranty of the Debtor set forth herein is
false in any material respect;
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(ii) If any principal, interest or other monetary sum due under the Note is not
paid within 5 days after the date when due; provided, however, notwithstanding
the occurrence of such an Event of Default, Secured Party shall not be entitled
to exercise her rights and remedies set forth below unless and until Secured
Party shall have given Debtor notice thereof and a period of 5 days from the
delivery of such notice shall have elapsed without such Event of Default being
cured;
(iii) If Debtor fails to observe or perform any of the other covenants,
conditions, or obligations of this Agreement; provided, however, if any such
failure does not involve the payment of any monetary sum, is not willful or
intentional, does not place any rights or interest in collateral of Secured
Party in immediate jeopardy, and is within the reasonable power of Debtor to
promptly cure after receipt of notice thereof, all as determined by Secured
Party in her sole, reasonable discretion, then such failure shall not
constitute an Event of Default hereunder, unless otherwise expressly provided
herein, unless and until Secured Party shall have given Debtor notice thereof
and a period of 30 days shall have elapsed, during which period Debtor may
correct or cure such failure, upon failure of which an Event of Default shall
be deemed to have occurred hereunder without further notice or demand of any
kind being required. If such failure cannot reasonably be cured within such 30-
day period, as determined by Secured Party in her sole, reasonable discretion,
and Debtor is diligently pursuing a cure of such failure, then Debtor shall
have a reasonable period to cure such failure beyond such 30-day period, which
shall not exceed 90 days after receiving notice of the failure from Secured
Party. If Debtor shall fail to correct or cure such failure within such 90-day
period, an Event of Default shall be deemed to have occurred hereunder without
further notice or demand of any kind being required;
(iv) If the Debtor becomes insolvent within the meaning of Title 11 of
the United States Code, 11 U.S.C. Sec. 10 1 et seq., as amended (the "Code"),
files or notifies Secured Party that it intends to file a petition under the
Code, initiates a proceeding under any similar law or statute relating to
bankruptcy, insolvency, reorganization, winding up or adjustment of debts
(collectively, an "Action"), becomes the subject of either a petition under the
Code or an Action, or is not generally paying its debts as the same become due;
or
(v) If a final, nonappealable judgment is rendered by a court against
the Debtor which has a material adverse effect on the operation of the business
of the Debtor and is not discharged and no provision is made for such discharge
within 60 days from the date of entry of such judgment.
2.5 REMEDIES. Upon the occurrence and during the continuance of an Event of
Default, subject to the limitations set forth in Section 2.4, Secured Party
shall have all rights and remedies of a secured party in, to and against
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the Collateral granted by the UCC and otherwise available at law or in equity,
including, without limitation:
(i) The right to declare any or all payments due under the Note and all
other Loan Documents immediately due and payable without any presentment,
demand, protest or notice of any kind, except as otherwise expressly provided
herein, and Debtor hereby waives notice of intent to accelerate the payment of
the Note and notice of acceleration;
(ii) The right to recover all fees and expenses (including reasonable
attorney fees) in connection with the collection or enforcement of the Note,
which fees and expenses shall constitute additional obligations of Debtor
hereunder;
(iii) The right to act as, and Debtor hereby constitutes and appoints
Secured Party, Debtor's true, lawful and irrevocable attorney-in-fact (which
appointment shall be deemed coupled with an interest) to demand, receive and
enforce payments and to give receipts, releases, satisfaction for and to xxx
for moneys payable to Debtor under or with respect to any of the Collateral,
and actions taken pursuant to this appointment may be taken either in the name
of Debtor or in the name of Secured Party;
(iv) The right to take immediate and exclusive possession of the
Collateral, or any part thereof, and for that purpose, with or without judicial
process and notice to the Debtor, enter (if this can be done without breach of
the peace) upon any premises on which the Collateral or any part thereof may be
situated and remove the same there from (provided that if the Collateral is
affixed to real estate, such removal shall be subject to the conditions stated
in the UCC);
(v) The right to hold, maintain, preserve and prepare the Collateral for
sale, until disposed of;
(vi) The right to render the Collateral unusable and dispose of the
Collateral;
(vii) The right to require Debtor to assemble and package the Collateral
and make it available to Secured Party for its possession at a place to be
designated by Secured Party which is reasonably convenient to Secured Party;
(viii) The right to sell, lease, hold or otherwise dispose of all or any
part of the Collateral; and
(ix) The right to xxx for specific performance of any obligation
hereunder or to recover damages for breach thereof.
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Secured Party shall be entitled to receive on demand, as additional obligations
of Debtor hereunder, interest accruing at the Default Rate (as defined in the
Note) on all amounts not paid when due under the Note until the date of actual
payment. Secured Party shall have no duty to mitigate any loss to Debtor
occasioned by enforcement of any remedy hereunder and shall have no duty of any
kind to any subordinated creditor of Debtor. No remedy herein conferred upon or
reserved to Secured Party is intended to be exclusive of any other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. Every
power or remedy given by any of the Loan Documents to Secured Party, or to
which Secured Party may be otherwise entitled, may be exercised, concurrently
or independently, from time to time and as often as may be deemed expedient by
Secured Party
2.6 APPLICATION OF PROCEEDS. Should Secured Party exercise any of the rights
and remedies specified in the Section 2.5, any proceeds received thereby shall
be first applied to pay the costs and expenses, including reasonable attorneys'
fees, incurred by Secured Party a result of the Event of Default. The remainder
of any proceeds, after payment of Secured Party's costs and expenses, shall be
applied to the satisfaction of the obligations under the Loan Documents and any
excess shall be paid over to Debtor.
2.7 POSSESSION OF COLLATERAL. Until an Event of Default shall occur, Debtor
may retain possession of the Collateral (as defined below) and may use it in
any lawful manner not inconsistent with this Agreement.
3.0 SECURITY INTEREST
3.1 GRANT OF SECURITY INTEREST. As security for the payment and performance
of the Loan and Note, Debtor hereby assigns, transfers and conveys to Secured
Party, and grants to Secured Party a security interest in and mortgage to, all
of Debtor's right, title and interest in, to and under the following
properties, assets and rights of the Debtor, in each case whether now or
hereafter existing or arising or in which Debtor now has or hereafter owns,
acquires or develops an interest and wherever located (collectively, the
"Collateral"):
(i) all patents and patent applications, domestic or foreign, all
licenses relating to any of the foregoing and all income and royalties with
respect to any licenses (including such patents and patent applications as
described in Schedule 3.1 hereto), all rights to xxx for past, present or
future infringement thereof, all rights arising therefrom and pertaining
thereto and all reissues, divisions, continuations, renewals, extensions and
continuations-inpart thereof,
(ii) all general intangibles and all intangible intellectual or other
similar property of Debtor of any kind or nature, associated with or arising
out
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of any of the aforementioned properties and assets and not otherwise described
above;
(iii) all personal and fixture property of every kind and nature
including without limitation all goods (including inventory, equipment and any
accessions thereto), instruments (including promissory notes), documents,
accounts, chattel paper (whether tangible or electronic), deposit accounts,
letter-of-credit rights (whether or not the letter of credit is evidenced by a
writing) securities and all other investment property, supporting obligations,
any other contract rights or rights to the payment of money, insurance claims
and proceeds, and all general intangibles (including all payment intangibles);
and
(iv) all proceeds of any and all of the foregoing Collateral (including
license royalties, rights to payment, accounts and proceeds of infringement
suits) and, to the extent not otherwise included, all payments under insurance
(whether or not Secured Party is the loss payee thereof) or any indemnity,
warranty or guaranty payable by reason of loss or damage to or otherwise with
respect to the foregoing Collateral.
3.2 CONTINUING SECURITY INTEREST. Debtor agrees that this Agreement shall
create a continuing security interest in the Collateral which shall remain in
effect until terminated in accordance with Section 8.5.
4.0 REPRESENTATIONS & WARRANTIES. Debtor hereby represents and warrants to
Secured Party, her heirs and assigns, that:
(i) A true and correct list of all of the existing Collateral consisting of
U.S. patents and patent applications or registrations owned by Debtor, in whole
or in part, is set forth in Schedule 3.1 hereto;
(ii) Debtor is duly organized or formed, validly existing and in good
standing under the laws of its state of incorporation or formation, and Debtor
is qualified as a foreign corporation to do business in the state(s) where the
Collateral is located;
(iii) Upon the execution by the Debtor, this Agreement and the other Loan
Documents shall constitute the legal, valid and binding obligations of the
Debtor, enforceable against the Debtor in accordance with their respective
terms;
(iv) There are no suits, actions, proceedings or investigations pending, or
to the best of its knowledge, threatened against or involving the Debtor or the
Collateral before any arbitrator or any governmental authority, agency,
department, commission, bureau, board, instrumentality, court or
quasigovernmental authority having jurisdiction or supervisory or regulatory
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authority over the Collateral or the Debtor ("Governmental Authority") except
for such suits, actions, proceedings or investigations as set forth in Schedule
4.0 (iv) hereto;
(v) The Debtor is not, and the authorization, execution, delivery and
performance of this Agreement and the other Loan Documents will not result, in
any breach or default under any other document, instrument or agreement to
which the Debtor is a party or by which the Collateral of the Debtor is subject
or bound;
(vi) The Debtor's authorization, execution, delivery and performance of this
Agreement and the other Loan Documents will not violate any applicable law,
statute, regulation, rule, ordinance, code, rule or order;
(vii) Except as otherwise disclosed in Schedule 4.0 (viii) hereto, the
Collateral is not subject to existing liens, security interests or
encumbrances, or any right of first refusal, right of first offer or option. to
purchase or lease granted to any third party; and
(viii) All of the information contained in the Schedules attached hereto are
true and complete as of the date hereof, and no representation or warranty of
Debtor made in this Agreement or any of the Schedules attached hereto omits to
state a material fact necessary to make the statements herein, in light of the
circumstances -in which they were made, not misleading.
5.0 AFFIRMATIVE COVENANTS. Debtor hereby covenants to Secured Party, her
heirs and assigns, that:
(i) Debtor shall make, execute, acknowledge and deliver, and file and
record in the proper filing and recording places, all such instruments and
documents, and take all such action as may be reasonably necessary or advisable
or may be reasonably requested by Secured Party to carry out the intent and
purposes of this Agreement, or for assuring, confirming or protecting the grant
or perfection of the security interest granted or purported to be granted
hereby, to ensure Debtor's compliance with this Agreement or to enable Secured
Party to exercise and enforce her rights and remedies hereunder with respect to
the Collateral, including any documents for filing with the PTO or any
applicable state office.
(ii) Without providing at least 30 days prior written notice to the
Secured Party, the Debtor (x) shall not pledge, mortgage or create, or suffer
to exist any right of any person in or claim by any person to the Collateral,
or any security interest, lien or encumbrance in the Collateral in favor of any
person; (y) will not change its name, its place of business, chief executive
office, or its mailing address; or (z) will not change its type of
organization, jurisdiction of organization or other legal structure;
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(iii) The Debtor will keep the Collateral in good order and repair and
will not use the same in violation of law or any policy of insurance thereon;
and
(iv) Without providing at least 45 days prior written notice to the
Secured Party, the Debtor will not sell or otherwise dispose, or offer to sell
or otherwise dispose, of the Collateral or any interest therein except for in
the ordinary course of business;
6.0 RIGHT TO RECORD AGREEMENT. Secured Party, at its sole expense, may
record this Agreement, an abstract thereof, or any other document describing
Secured Party's interest in the Collateral with the PTO. In addition, Debtor
authorizes Secured Party to file financing statements describing the Collateral
in any UCC filing office deemed appropriate by Secured Party.
7.0 AUTHORIZATION TO SUPPLEMENT. If Debtor shall obtain rights to 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.
Debtor shall give prompt notice in writing to Secured Party with respect to any
such new patent rights. Without limiting Debtor's obligations under this
Section 7.0, Debtor authorizes Secured Party unilaterally to modify this
Agreement by amending Schedule 3.1 to include any such new patent rights.
Notwithstanding the foregoing, no failure to so modify this Agreement or amend
Schedule 3.1 shall in any way affect, invalidate or detract from Secured
Party's continuing security interest in all Collateral, whether or not listed
on Schedule 3.1
8.0 MISCELLANEOUS.
8.1 BINDING EFFECT. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by Debtor, Secured Party and their respective
successors and assigns. Debtor may not assign, transfer, hypothecate or
otherwise convey its rights, benefits, obligations or duties hereunder without
the prior written consent of the Secured Party.
8.2 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the law of the State of Illinois, except as required by
mandatory provisions of law or to the extent the perfection or priority of the
security interests hereunder, or the remedies hereunder, in respect of any
Collateral are governed by the law of a jurisdiction other than Illinois.
8.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement, together with the Exhibits
and Schedules hereto and thereto, contains the entire agreement of the parties
with respect to the subject matter hereof and supersedes all prior drafts and
communications relating to such subject matter. Neither this
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Agreement nor any provision hereof may be modified, amended or waived except by
the written agreement of the parties. Notwithstanding the foregoing, Secured
Party unilaterally may re-execute this Agreement or modify, amend or supplement
the Schedule 3.1 hereto as provided in Section 7.0 hereof.
8.4 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement. Delivery of an
executed counterpart of this Agreement by facsimile shall be equally as
effective as delivery of a manually executed counterpart. Any party hereto
delivering a counterpart of this Agreement by facsimile shall also deliver a
manually executed counterpart, but the failure to so deliver a manually
executed counterpart shall not affect the validity, enforceability, or binding
effect hereof.
8.5 TERMINATION. Upon payment and performance in full of the Loan, the
security interests created by this Agreement shall terminate and Secured Party
(at Debtor's expense) shall promptly execute and deliver to Debtor such
documents and instruments reasonably requested by Debtor as shall be necessary
to evidence termination of all such security interests given by Debtor to
Secured Party hereunder, including cancellation of this Agreement by written
notice from Secured Party to the PTO.
8.6 NOTICES. All notices and other communications hereunder shall be in
writing and shall be mailed, faxed, sent or delivered to the parties at the
addresses set forth below:
If to the Debtor: Molecular Diagnostics, Inc.
000 X. Xxxxxxx Xx., Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Fax (000) 000-0000
Attention: Xx. Xxxxx Xxxxxxxx, CEO
With a courtesy copy to: Ungaretti & Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
If to Secured Party: Xx. Xxxxxxx Xxxxxxxxxx-Xxxxxxxx
00 Xxxx Xxxxxxxx, Xxxx 0000
Xxxxxxx, Xxxxxxxx 00000
With a courtesy copy to: Xxxxxx, Lipton and Xxxxxxxxx, Limited
000 Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
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Fax (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
8.7 SEVERABILITY. If one or more provisions contained in this Agreement
shall be invalid, illegal or unenforceable in any respect in any jurisdiction
or with respect to any party, such invalidity, illegality or unenforceability
in such jurisdiction or with respect to such party shall, to the fullest extent
permitted by applicable law, not invalidate or render illegal or unenforceable
any such provision in any other jurisdiction or with respect to any other
party, or any other provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, as of
the date first above written.
MOLECULAR DIAGNOSTICS, INC.,
A DELAWARE CORPORATION
By: __________________________ __________________________
Xxxxx Xxxxxxxx, CEO Xxxxxxx Xxxxxxxxxx-Xxxxxxxx
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