LETTER OF CREDIT SUBLIMIT: Silicon, in its reasonable discretion, will from time to time during the term of this Agreement issue letters of credit for the account of the Borrower ("Letters of Credit"), in an aggregate amount at any one time...
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EXHIBIT 10(n)xxi
[LOGO] SILICON VALLEY BANK
SCHEDULE TO
LOAN AND SECURITY AGREEMENT
BORROWER: CALBIOCHEM-NOVABIOCHEM CORPORATION
ADDRESS: 00000 XXXXXXX XXXXXX XXXXX
XXX XXXXX, XXXXXXXXXX 00000
DATE: JUNE 27, 1997
THIS SCHEDULE is an integral part of the Loan and Security Agreement
between Silicon Valley Bank ("Silicon") and the above-named borrower
("Borrower") of even date.
CREDIT LIMIT
(Section 1.1):
An amount not to exceed $5,000,000 at
any one time outstanding (the "Revolving
Loans" and the loan facility is referred
to as the "Revolving Loan Facility").
LETTER OF CREDIT SUBLIMIT: Silicon, in its reasonable discretion,
will from time to time during the term
of this Agreement issue letters of
credit for the account of the Borrower
("Letters of Credit"), in an aggregate
amount at any one time outstanding not
to exceed $500,000, upon the request of
the Borrower, provided that, on the date
the Letters of Credit are to be issued,
Borrower has availability under the
Revolving Loan Facility in an amount
equal to or greater than the face amount
of the Letters of Credit to be issued.
Prior to the issuance of any Letters of
Credit, Borrower shall execute and
deliver to Silicon Applications for
Letters of Credit and such other
documentation as Silicon shall specify
(the "Letter of Credit Documentation").
Fees for the Letters of Credit shall be
as provided in the Letter of Credit
Documentation. Letters of Credit may
have a maturity date up to twelve months
beyond the Maturity Date in effect from
time to time, provided that if on the
Maturity Date, or on any earlier
effective date of termination, there are
any outstanding letters of credit issued
by Silicon or issued by another
institution based upon an application,
guarantee, indemnity or similar
agreement on the part of Silicon, then
on such date Borrower shall provide to
Silicon cash collateral in an amount
equal to the face amount of all such
letters of credit plus all interest,
fees and costs due or to become due in
connection therewith, to secure all of
the Obligations relating to said letters
of credit, pursuant to Silicon's then
standard form cash pledge agreement.
The Loans available under Revolving Loan
Facility at any time shall be reduced by
the face amount of Letters of Credit
from time to time outstanding.
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
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RESERVE RELATING LOAN The Loans available under
the Revolving Loan Facility at any time
shall be reduced by an amount determined
by Silicon, in its discretion, up to
$200,000 relating to the loan made by
Silicon to Xxxxxxx Xxxxxxxxxxxx.
FOREIGN EXCHANGE
CONTRACT SUBLIMIT Up to $3,000,000 (the "Contract Limit")
may be utilized for spot and future
foreign exchange contracts (the
"Exchange Contracts"). The Credit Limit
regarding the Revolving Loan Facility
available at any time shall be reduced
by the following amounts (the "Foreign
Exchange Reserve") on each day (the
"Determination Date"): (i) on all
outstanding Exchange Contracts on which
delivery is to be effected or settlement
allowed more than two business days from
the Determination Date, 10% of the gross
amount of the Exchange Contracts; plus
(ii) on all outstanding Exchange
Contracts on which delivery is to be
effected or settlement allowed within
two business days after the
Determination Date, 100% of the gross
amount of the Exchange Contracts. In
lieu of the Foreign Exchange Reserve for
100% of the gross amount of any Exchange
Contract, the Borrower may request that
Silicon debit the Borrower's bank
account with Silicon for such amount,
provided Borrower has immediately
available funds in such amount in its
bank account.
Silicon may, in its discretion,
terminate the Exchange Contracts at any
time (a) that an Event of Default occurs
or (b) that there is not sufficient
availability under the Credit Limit and
Borrower does not have available funds
in its bank account to satisfy the
Foreign Exchange Reserve. If either
Silicon or Borrower terminates the
Exchange Contracts, and without
limitation of the FX Indemnity
Provisions (as referred to below),
Xxxxxxxx agrees to reimburse Silicon for
any and all fees, costs and expenses
relating thereto or arising in
connection therewith.
Borrower shall not permit the total
gross amount of all Exchange Contracts
on which delivery is to be effected and
settlement allowed in any two business
day period to be more than $500,000 (the
"Settlement Limit"), nor shall Borrower
permit the total gross amount of all
Exchange Contracts to which Borrower is
a party, outstanding at any one time, to
exceed the Contract Limit.
Notwithstanding the above, however, the
amount which may be settled in any two
(2) business day period may, in
Silicon's sole discretion, be increased
above the Settlement Limit up to, but in
no event to exceed, the amount of the
Contract Limit (the "Discretionary
Settlement Amount") under either of the
following circumstances (the
"Discretionary Settlement
Circumstances"):
(i) if there is sufficient
availability under the Credit Limit
regarding the Revolving Loan
Facility in the amount of the
Foreign Exchange Reserve as of each
Determination Date, provided that
Silicon in advance shall reserve the
full amount of the Foreign Exchange
Reserve against the Credit Limit
regarding the Revolving Loan
Facility; or
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
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(ii) if there is insufficient
availability under the Credit Limit
regarding the Revolving Loan
Facility as to settlements within
any two (2) business day period if
Silicon is able to: (A) verify good
funds overseas prior to crediting
Borrower's deposit account with
Silicon (in the case of Borrower's
sale of foreign currency); or (B)
debit Borrower's deposit account
with Silicon prior to delivering
foreign currency overseas (in the
case of Borrower's purchase of
foreign currency);
Provided that it is expressly understood
that Silicon's willingness to adopt the
Discretionary Settlement Amount is a
matter of Silicon's sole discretion and
the existence of the Discretionary
Settlement Circumstances in no way means
or implies that Silicon shall be
obligated to permit the Borrower to
exceed the Settlement Limit in any two
business day period.
In the case of Xxxxxxxx's purchase of
foreign currency, Borrower in advance
shall instruct Silicon upon settlement
either to treat the settlement amount as
an advance under the Credit Limit
regarding the Revolving Loan Facility,
or to debit Xxxxxxxx's account for the
amount settled.
The Borrower shall execute all standard
form applications and agreements of
Silicon in connection with the Exchange
Contracts, and without limiting any of
the terms of such applications and
agreements, the Borrower will pay all
standard fees and charges of Silicon in
connection with the Exchange Contracts.
Without limiting any of the other terms
of this Loan Agreement or any such
standard form applications and
agreements of Silicon, Borrower agrees
to indemnify Silicon and hold it
harmless, from and against any and all
claims, debts, liabilities, demands,
obligations, actions, costs and expenses
(including, without limitation,
attorneys' fees of counsel of Silicon's
choice), of every nature and
description, which it may sustain or
incur, based upon, arising out of, or in
any way relating to any of the Exchange
Contracts or any transactions relating
thereto or contemplated thereby
(collectively referred to as the "FX
Indemnity Provisions").
The Exchange Contracts shall have
maturity dates no later than the
Maturity Date.
SUPPLEMENT: The Supplement to Schedule to Loan
Agreement (the "Supplement") as attached
to the original Schedule to Loan
Agreement, as amended, is incorporated
into and forms a part of this Schedule
and this Loan Agreement.
INTEREST RATE (Section 1.2): Interest on the Loans shall be paid at
the applicable Interest Rate (as defined
in the Supplement).
Interest shall be calculated on the
basis of a 360-day year for the actual
number of days elapsed.
"Prime Rate" means the rate announced
from time to time by Silicon as its
"prime rate;" it is a base rate upon
which other rates charged by Silicon are
based, and it is not necessarily the
best rate
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
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available at Silicon. The interest rate
applicable to the Prime Rate-based
Obligations shall change on each date
there is a change in the Prime Rate.
LOAN ORIGINATION FEE
(Section 1.3): See Amendment to Loan Agreement of even
date herewith.
MATURITY DATE
(Section 5.1): JUNE 27, 1999
PRIOR NAMES OF BORROWER
(Section 3.2): CALBIOCHEM CORPORATION; CBC ACQUISITION
CORPORATION
TRADE NAMES OF BORROWER
(Section 3.2): NONE
OTHER LOCATIONS AND ADDRESSES
(Section 3.3): BOULEVARD INDUSTRIAL PARK, XXXXX XXXX,
XXXXXXX, XXXXXXXXXX XXXXXX XXXXXXX NG9
2JR; 00-00 XXXXXX XXXXXX, XXXXXXXXX,
XXXXXXXXXXXXX.
MATERIAL ADVERSE LITIGATION
(Section 3.10): NONE
NEGATIVE COVENANTS-EXCEPTIONS
(Section 4.6): Without Silicon's prior written consent,
Borrower may do the following, provided
that, after giving effect thereto, no
Event of Default has occurred and no
event has occurred which, with notice or
passage of time or both, would
constitute an Event of Default, and
provided that the following are done in
compliance with all applicable laws,
rules and regulations: (i) Borrower may
upstream funds and make loans to the
Parent without any restriction; and (ii)
Borrower may pay or declare dividends on
Xxxxxxxx's stock in any form.
FINANCIAL COVENANTS
(Section 4.1): Borrower shall cause the Parent to
comply with all of the following
covenants on a consolidated basis.
Compliance shall be determined as of the
end of each quarter, except as otherwise
specifically provided below:
QUICK ASSET RATIO: Parent shall maintain a ratio of "Quick
Assets" to current liabilities of not
less than 1.75 to 1.
TANGIBLE NET WORTH: Parent shall maintain a tangible net
worth of not less than $34,000,000,
excluding the amount of the foreign
currency translation account.
DEBT TO TANGIBLE
NET WORTH RATIO: Parent shall maintain a ratio of total
liabilities to tangible net worth of not
more than 1.00 to 1.
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
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CLEAN-UP PERIOD: During each annual period on and after
the IPO Consummation, there shall be
period of 30 days when no Loans shall be
outstanding.
DEFINITIONS: "Current assets," and "current
liabilities" shall have the meanings
ascribed to them in accordance with
generally accepted accounting
principles.
"Tangible net worth" means the excess of
total assets over total liabilities,
determined in accordance with generally
accepted accounting principles,
excluding however all assets which would
be classified as intangible assets under
generally accepted accounting
principles, including without limitation
goodwill, licenses, patents, trademarks,
trade names, copyrights, capitalized
software and organizational costs,
licences and franchises.
"Quick Assets" means cash on hand or on
deposit in banks, readily marketable
securities issued by the United States,
readily marketable commercial paper
rated "A-1" by Standard & Poor's
Corporation (or a similar rating by a
similar rating organization),
certificates of deposit and banker's
acceptances, and accounts receivable
(net of allowance for doubtful
accounts).
DEFERRED REVENUES: For purposes of the above quick asset
ratio, deferred revenues shall not be
counted as current liabilities. For
purposes of the above debt to tangible
net worth ratio, deferred revenues shall
not be counted in determining total
liabilities but shall be counted in
determining tangible net worth for
purposes of such ratio. For all other
purposes deferred revenues shall be
counted as liabilities in accordance
with generally accepted accounting
principles.
SUBORDINATED DEBT: "Liabilities" for purposes of the
foregoing covenants do not include
indebtedness which is subordinated to
the indebtedness to Silicon under a
subordination agreement in form
specified by Silicon or by language in
the instrument evidencing the
indebtedness which is acceptable to
Silicon.
OTHER COVENANTS
(Section 4.1): Borrower shall at all times comply with
all of the following additional
covenants:
1. BANKING RELATIONSHIP. Borrower
shall at all times maintain its primary
banking relationship with Silicon.
2. WARRANTS. Borrower shall continue
in effect the Warrant to Purchase Stock
and related documents it entered into
with Silicon in connection with the
original execution of the Loan
Agreement.
3. LINE FEE. Borrower shall pay to
Silicon a quarterly unused line fee
equal to .125% per annum calculated upon
the amount by which the Credit Limit
regarding Revolving Loans exceeds the
average daily principal balance of the
outstanding Revolving Loans and Letters
of Credit during the immediately
preceding quarter (or part thereof)
while this Agreement is in effect and
for so long thereafter as any of the
Obligations are outstanding, which fee
shall be payable on the first day of
each quarter in arrears.
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
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IN WITNESS WHEREOF, the undersigned have
caused this Agreement to be executed by
their duly authorized representatives.
BORROWER:
CALBIOCHEM-NOVABIOCHEM CORPORATION
BY /s/ XXXXX X. XXXXXXX
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PRESIDENT OR VICE PRESIDENT
BY /s/ XXXXXX X. XXXX
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SECRETARY OR ASS'T SECRETARY
SILICON:
SILICON VALLEY BANK
BY /s/ XXXXX LE XXXX
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BY SVP
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