AGREEMENT TO
WAIVE COVENANT VIOLATION AND MODIFY LOAN
This Agreement to Waive Covenant Violation and Modify Loan
("Agreement") is executed by Alliance Pharmaceutical Corp. ("Borrower") and
Imperial Bank ("Bank") as of May 17, 1999.
WHEREAS, Borrower and Bank entered into a credit agreement ("Credit
Agreement"), security agreement ("Security Agreement") and a promissory note
("Note") in the amount of $15 million (such Credit Agreement, Security Agreement
and Note collectively, the "Loan Documents") providing for a loan in the amount
of $15 million;
WHEREAS, the Loan Documents required Borrower to maintain Liquid
Assets of not less than $25 million at all times;
WHEREAS, in March 1999 Borrower's Liquid Assets were less than
$25 million;
WHEREAS, Borrower expects to close an offering of its common stock
(the "Closing") on or before June 15, 1999;
WHEREAS, Borrower and Bank wish to provide for a waiver of the loan
covenant violation and to restructure the loan pursuant to the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, the parties do hereby agree as follows:
1. Borrower is in violation of Section 2.04 of the Agreement as of
March 1999, requiring Borrower to maintain Liquid Assets of not less than
$25,000,000. As of March 26, 1999, Borrower's Liquid Assets were $21,652,840.
2. The Bank hereby consents to the repurchase by Borrower of all of its
outstanding E-1 Preferred Stock and to the issuance of up to $3 million in
convertible debentures for such purpose.
3. Bank hereby waives the covenant violation discussed in Section 1 above
as of the date of this Agreement and the Closing, subject to the conditions set
forth in Sections 3(a), (b), (c) and (d) below. The waiver contained herein is
specific as to contents and shall not be construed as waiving any other past,
presently existing or future non-compliance with any covenant of the Credit
Agreement and in no way affects any rights and remedies that Bank may have with
respect to any other non-compliance with any other covenant of the Agreement.
On or before June 15, 1999, Borrower will
a. Pledge $5,000,000 in cash, to be held in a Bank Time Certificate
of Deposit ("CD");
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b. Provide Bank with a first priority perfected security interest in
its unlicensed patented technology pursuant to an Intellectual Property Security
Agreement (to be completed as soon as reasonably possible);
c. Issue a warrant to purchase 180,000 shares of Borrower's common
stock to Imperial Bancorp on terms agreed to by the parties (to be completed as
soon as reasonably possible);
d. Have raised a minimum of $18,000,000 in new equity.
4. Contemporaneously with the delivery of $5 million to Bank in
Section 3(a) above and the Closing:
a. The current outstanding promissory note shall be divided into two
promissory notes as follow:
(i) $5,000,000, secured by CD as required in Section 2(a)
above. Repayment to be interest only for 12 months followed by 36 months of
equal principal payments plus interest. The interest rate, at Borrower's
option, shall be 30, 60 or 90 day LIBOR plus one and one quarter of one percent
(1.25%) or at Bank's Prime Rate. The Borrower will have the option to request
quarterly reductions in the cash collateral, however, in no event shall the cash
collateral fall below the outstanding principal.
(ii) $8,945,558 (or the then outstanding balance on Borrower's
debt to Bank less $5,000,000, whichever is less), secured by all of Borrower's
assets and unlicensed technology. Amortization to be principal payments of
$500,000 per month plus interest through and including January 15, 2000 followed
by fully amortizing principal payments of $250,000 per month (expected maturity
will be October 15, 2001).
b. The Loan Documents are amended as of the Closing to require the
following:
(i) Borrower to maintain minimum cash (exclusive of cash
collateral) of the lesser of $5,000,000 or 50% of the outstanding balance of
Section 4(a)(ii) above.
(ii) Borrower to apply 10% of any additional equity raised
(excluding equity raised at the Closing and from the sale of debentures
referenced in Section 2) to the outstanding balance of the note specified in
Section 4(a)(ii) above, however, not to exceed 25% of the outstanding balance
said note.
5. A new Section 1.10 is hereby added to the Credit Agreement to
read in its entirety as follows:
"YEAR 2000 COMPLIANCE. Borrower and its subsidiaries, as applicable,
have reviewed the areas within their operations and business which
could be adversely affected by, and have developed or are developing a
program to address on a
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timely basis, the Year 2000 Problem and are making related appropriate
inquiry of material suppliers and vendors, and based on such review and
program the Borrower believes the Year 2000 Problem will not have a
material adverse effect upon their financial condition, operations or
business as now conducted. "Year 2000 Problem" means the possibility
that any computer applications or equipment used by Borrower may be
unable to recognize and properly perform date sensitive functions
involving certain dates prior to and any dates on or after December 31,
1999."
6. A new Section 2.10 is hereby added to the Credit Agreement to read in
its entirety as follows:
"YEAR 2000 COMPLIANCE. Take all commercially reasonable actions to
ensure that (a) Borrower and any business in which Borrower holds a
substantial interest, and (b) all customers, suppliers and vendors
whose compliance is likely to be material to Borrower's business,
become Year 2000 Compliant in a timely manner. Such acts shall
include, without limitation, performing a comprehensive review and
assessment of all Borrower's material systems and adopting a detailed
plan, for the remediation, monitoring and testing of such systems. As
used in this section, "Year 2000 Compliant" shall mean, in regard to
any entity, that all software, hardware, firmware, equipment, goods or
systems utilized by or material to the business operations or
financial condition of such entity, will properly perform date
sensitive functions before, during and after the year 2000. Borrower
shall, immediately upon request, provide to Bank such certifications
or other evidence of Borrower's compliance with the terms of this
section as Bank may from time to time require."
7. Except as provided above, the Loan Documents will remain unchanged.
8. This Agreement is effective as of May 18, 1999, upon receipt from
Borrower of an extension fee of Two Hundred and Fifty Dollars ($250), and the
parties hereby confirm that the Note, Addendum and Agreement, as amended, are in
full force and effect.
ALLIANCE PHARMACEUTICAL CORP. IMPERIAL BANK
By: ________________________________ By: ____________________________________
Printed Name: ______________________ Printed Name: __________________________
Title: _____________________________ Title: _________________________________
By: ________________________________
Printed Name: ______________________
Title: _____________________________
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