Exhibit 10.40
LOAN AND SECURITY AGREEMENT
(EQUIPMENT)
DATED AS OF SEPTEMBER 6, 2002
BETWEEN
CANCERVAX CORPORATION,
A DELAWARE CORPORATION
AS "BORROWER",
AND
VENTURE LENDING & LEASING III, INC.,
A MARYLAND CORPORATION
AS "LENDER"
LOAN AND SECURITY AGREEMENT
(EQUIPMENT)
The Borrower and Lender identified on the cover page of this document
have entered or anticipate entering into one or more transactions pursuant to
which Lender agrees to make available to Borrower a loan facility governed by
the terms and conditions set forth in this document and one or more Supplements
executed by Borrower and Lender which incorporate this document by reference.
Each Supplement constitutes a supplement to and forms part of this document, and
will be read and construed as one with this document, so that this document and
the Supplement constitute a single agreement between the parties (collectively
referred to as this "Agreement").
Accordingly, the parties agree as follows:
ARTICLE 1 - INTERPRETATION
1.1 DEFINITIONS. The terms defined in Article 10 and in the Supplement
will have the meanings therein specified for purposes of this Agreement.
1.2 INCONSISTENCY. In the event of any inconsistency between the
provisions of any Supplement and this document, the provisions of the Supplement
will be controlling for the purpose of all relevant transactions.
ARTICLE 2 - THE COMMITMENT AND LOANS
2.1 THE COMMITMENT. Subject to the terms and conditions of this
Agreement, Lender agrees to make term loans to Borrower from time to time from
the Closing Date and to, but not including, the Termination Date in an aggregate
principal amount not exceeding the Commitment, for the purpose of financing the
acquisition or carrying of certain Equipment and Soft Costs. The Commitment is
not a revolving credit commitment, and Borrower does not have the right to repay
and reborrow hereunder; provided, however, that Borrower may prepay the Loans on
the terms set forth in the Supplement. Each Loan requested by Borrower to be
made on a single Business Day shall be for a minimum principal amount set forth
in the Supplement, except to the extent the remaining Commitment is a lesser
amount.
2.2 NOTES EVIDENCING LOANS; REPAYMENT. Each Loan shall be evidenced by
a separate Note payable to the order of Lender, in the total principal amount of
the Loan. Principal and interest of each Loan shall be payable at the times and
in the manner set forth in the Note and regularly scheduled payments thereof and
each Terminal Payment shall be effected by automatic debit of the appropriate
funds from Borrower's Primary Operating Account as specified in the Supplement
hereto.
2.3 PROCEDURES FOR BORROWING.
(a) Borrower shall give Lender, at least five (5) Business Days' prior
to a proposed Borrowing Date, written notice of any request for borrowing
hereunder (a "Borrowing Request"). Each Borrowing Request shall be in
substantially the form of Exhibit "B" to the Supplement, shall be executed by
either the chief executive officer or the chief financial officer of Borrower,
and shall state how much is requested, and shall be accompanied by such other
information and documentation as Lender may reasonably request.
(b) No later than 1:00 p.m. Pacific Standard Time on the Borrowing
Date, if Borrower has satisfied the conditions precedent in Article 4, Lender
shall make the Loan available to Borrower in immediately available funds.
2.4 INTEREST. Basic Interest on the outstanding principal balance of
each Loan shall accrue daily at the Designated Rate from the Borrowing Date
until the Maturity Date. Subject to Section 2.7 hereof, if the outstanding
principal balance of such Loan is not paid on the Maturity Date, interest shall
accrue at the Default Rate until paid in full, as further set forth herein.
2.5 TERMINAL PAYMENT. Borrower shall pay the Terminal Payment, if any,
with respect to each Loan on the Maturity Date of such Loan.
2.6 INTEREST RATE CALCULATION. Basic Interest, along with charges and
fees under this Agreement and any Loan Document, shall be calculated for actual
days elapsed on the basis of a 360-day year, which results in higher interest,
charge or fee payments than if a 365-day year were used. In no event shall
Borrower be obligated to pay Lender interest, charges or fees at a rate in
excess of the highest rate permitted by applicable law from time to time in
effect.
2.7 DEFAULT INTEREST. Any unpaid payments of principal or interest or
the Terminal Payment with respect to any Loan (the failure by Borrower to make
any such payments being referred to herein, collectively, as a "Payment
Default") shall bear interest from their respective maturities, whether
scheduled or accelerated, at the Designated Rate for such Loan plus five percent
(5.00%) per annum, until paid in full, whether before or after judgment (the
"Default Rate"). Borrower shall pay such interest on demand. Notwithstanding the
foregoing, in the event of a Payment Default resulting solely from the technical
malfunction of the ACH transfer through no fault of the Borrower (and not for
any other reason, including without limitation, insufficient funds) then, in
such event, Lender shall provide Borrower notice of the same and Borrower shall
have three (3) Business Days from the receipt of such notice to cure the Payment
Default before interest will begin to accrue at the Default Rate.
2.8 LATE CHARGES. If Borrower is late in making any payment of
principal or interest or Terminal Payment under this Agreement by more than five
(5) days, Borrower agrees to pay a late charge of five percent (5%) of the
installment due, but not less than fifty dollars ($50.00) for any one such
delinquent payment; provided, however, that Lender agrees that a technical
malfunction of the ACH transfer will not give rise to the imposition of the
foregoing late charge. This late charge may be charged by Lender for the purpose
of defraying the expenses incidental to the handling of such delinquent amounts.
Borrower acknowledges that such late charge represents a reasonable sum
considering all of the circumstances existing on the date of this Agreement and
represents a fair and reasonable estimate of the costs that will be sustained by
Lender due to the failure of Borrower to make timely payments. Borrower further
agrees that proof of actual damages would be costly and inconvenient. Such late
charge shall be paid without prejudice to the right of Lender to collect any
other amounts provided to be paid or to declare a default under this Agreement
or any of the other Loan Documents or from exercising any other rights and
remedies of Lender.
2.9 LENDER'S RECORDS. Principal, Basic Interest, Terminal Payments and
all other sums owed under any Loan Document shall be evidenced by entries in
records maintained by Lender for such purpose. Each payment on and any other
credits with respect to principal, Basic Interest, Terminal Payments and all
other sums outstanding under any Loan Document shall be evidenced by entries in
such records. Absent manifest error, Lender's records shall be conclusive
evidence thereof.
2.10 GRANT OF SECURITY INTERESTS; FILING OF FINANCING STATEMENTS.
(a) To secure the timely payment and performance of all of
Borrower's Obligations to Lender, Borrower hereby grants to Lender continuing
security interests in all of the Collateral. In connection with the foregoing,
Borrower authorizes Lender to prepare and file any financing statements
describing the Collateral without otherwise obtaining the Borrower's signature
or consent with respect to the filing of such financing statements.
(b) Borrower is and shall remain absolutely and
unconditionally liable for the performance of its obligations under the Loan
Documents, including, without limitation, any deficiency by reason of the
failure of the Collateral to satisfy all amounts due Lender under any of the
Loan Documents.
(c) All Collateral pledged by Borrower under this Agreement
and any Supplement shall secure the timely payment and performance of all
Obligations under this Agreement, the Notes and the other Loan Documents. Except
as expressly provided in this Agreement, no Collateral pledged under this
Agreement or any Supplement shall be released until such time as all Obligations
under this Agreement and the other Loan Documents have been satisfied and paid
in full.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants that, except as set forth in the
Supplement or on the Schedule of Exceptions attached hereto as Exhibit "A", as
of the Closing Date and each Borrowing Date:
3.1 DUE ORGANIZATION. Borrower is a corporation duly organized and
validly existing in good standing under the laws of the jurisdiction of its
incorporation, and is duly qualified to conduct business and is in good standing
in each other jurisdiction in which its business is conducted or its properties
are located, except where the failure to be so qualified would not reasonably be
expected to have a Material Adverse Effect.
3.2 AUTHORIZATION, VALIDITY AND ENFORCEABILITY. The execution, delivery
and performance of all Loan Documents executed by Borrower are within
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Borrower's powers, have been duly authorized, and are not in conflict with
Borrower's certificate of incorporation or by-laws, or the terms of any charter
or other organizational document of Borrower, as amended from time to time; and
all such Loan Documents constitute valid and binding obligations of Borrower,
enforceable in accordance with their terms (except as may be limited by
bankruptcy, insolvency and similar laws affecting the enforcement of creditors'
rights in general, and subject to general principles of equity).
3.3 COMPLIANCE WITH APPLICABLE LAWS. Borrower has complied with all
licensing, permit and fictitious name requirements necessary to lawfully conduct
the business in which it is engaged, and to any sales, leases or the furnishing
of services by Borrower, including without limitation those requiring consumer
or other disclosures, the noncompliance with which would have a Material Adverse
Effect.
3.4 NO CONFLICT. The execution, delivery, and performance by Borrower
of all Loan Documents are not in conflict with any law, rule, regulation, order
or directive, or any indenture, agreement, or undertaking to which Borrower is a
party or by which Borrower may be bound or affected.
3.5 NO LITIGATION, CLAIMS OR PROCEEDINGS. There is no litigation, tax
claim, proceeding or dispute pending, or, to the knowledge of Borrower,
threatened against or affecting Borrower or its property.
3.6 CORRECTNESS OF FINANCIAL STATEMENTS. Borrower's March 31, 2002 and
December 31, 2001 financial statements which have been delivered to Lender
fairly and accurately reflect in all material respects Borrower's financial
condition in accordance with GAAP as of the date of such financial statements,
except that the unaudited financial statements may not contain all footnotes
required by GAAP and are subject to normal year-end adjustments; and, since
March 31, 2002 there has been no Material Adverse Change.
3.7 NO SUBSIDIARIES. Borrower is not a majority owner of or in a
control relationship with any other business entity.
3.8 ENVIRONMENTAL MATTERS. To the knowledge of Borrower, Borrower is in
compliance with all Environmental Laws applicable to its business operations and
materials handled therein, except to the extent a failure to be in such
compliance could not reasonably be expected to have a Material Adverse Effect on
Borrower's operations, properties or financial condition.
3.9 NO EVENT OF DEFAULT. No Default or Event of Default has occurred
and is continuing.
3.10 FULL DISCLOSURE. None of the representations or warranties made by
Borrower in the Loan Documents as of the date such representations and
warranties are made or deemed made, and none of the statements contained in any
exhibit, report, statement or certificate furnished by or on behalf of Borrower
in connection with the Loan Documents (including disclosure materials delivered
by or on behalf of Borrower to Lender prior to the Closing Date), contains any
untrue statement of a material fact or omits any material fact required to be
stated therein or necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading as of the time when made
or delivered.
3.11 SPECIFIC REPRESENTATIONS REGARDING COLLATERAL.
(a) TITLE. Except for the security interests created or contemplated by
this Agreement and Permitted Liens, (i) Borrower is and will be the
unconditional legal and beneficial owner of the Collateral, and (ii) the
Collateral is genuine and subject to no Liens, rights or defenses of others.
(b) LOCATION OF COLLATERAL. Borrower's chief executive office, Records,
Equipment, and any other offices or places of business are located at the
address(es) shown on the Supplement.
(c) BUSINESS NAMES. Other than its full corporate name, Borrower has
not conducted business using any trade names or fictitious business names except
as shown on the Supplement.
3.12 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES.
(a) To Borrower's knowledge, Borrower owns or is licensed or otherwise
has the right to use all of the patents, trademarks, service marks, trade names,
copyrights, contractual franchises, authorizations and other similar rights that
are reasonably necessary for the operation of its business, without conflict
with the rights of any other Person.
(b) To Borrower's knowledge, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or
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now contemplated to be employed, by Borrower infringes upon any rights held by
any other Person.
(c) No claim or litigation regarding any of the foregoing is pending
or, to Borrower's knowledge, threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation, standard or code
is pending or proposed which, in either case, could reasonably be expected to
have a Material Adverse Effect.
3.13 SURVIVAL. The representations and warranties of Borrower as set
forth in this Agreement survive the execution and delivery of this Agreement.
ARTICLE 4 - CONDITIONS PRECEDENT
4.1 CONDITIONS TO FIRST LOAN. The obligation of Lender to make its
first Loan hereunder is, in addition to the conditions precedent specified in
Section 4.2, subject to the fulfillment of the following conditions and to the
receipt by Lender of the documents described below, duly executed and in form
and substance reasonably satisfactory to Lender and its counsel:
(a) RESOLUTIONS. A certified copy of the resolutions of the Board of
Directors of Borrower authorizing the execution, delivery and performance by
Borrower of the Loan Documents.
(b) INCUMBENCY AND SIGNATURES. A certificate of the secretary of
Borrower certifying the names of the officer or officers of Borrower authorized
to sign the Loan Documents, together with a sample of the true signature of each
such officer.
(c) LEGAL OPINION. The opinion of legal counsel for Borrower in
substantially the form of Exhibit "E" attached to the Supplement.
(d) CERTIFICATE AND BY-LAWS. Certified copies of the Certificate of
Incorporation and By-Laws of Borrower, as amended through the Closing Date.
(e) THIS AGREEMENT. A counterpart of this Agreement and an initial
Supplement, with all schedules completed and attached thereto, and disclosing
such information as is reasonably acceptable to Lender.
(f) FINANCING STATEMENTS. Filing copies (or other evidence of filing
satisfactory to Lender and its counsel) of such Uniform Commercial Code
financing statements, collateral assignments and termination statements, with
respect to the Collateral as Lender shall request.
(g) LIEN SEARCHES. Uniform Commercial Code lien, judgment, bankruptcy
and tax lien searches of Borrower from such jurisdictions or offices as Lender
may reasonably request, all as of a date reasonably satisfactory to Lender and
its counsel.
(h) GOOD STANDING CERTIFICATE. A Certificate of status or good standing
of Borrower as of a date acceptable to Lender from the jurisdiction of
Borrower's organization and any foreign jurisdictions where Borrower is
qualified to do business.
(i) WARRANT AGREEMENT AND INCIDENTAL REGISTRATION RIGHTS AGREEMENT. A
Warrant Agreement substantially in the form of Exhibit "D-1" attached to the
Supplement entered into between Borrower and Lender (or its designee)
exercisable for such number, type and class of shares of Borrower's capital
stock, and for an initial exercise price as is specified in the Supplement and
an Incidental Registration Rights Agreement in substantially the form of Exhibit
"D-2" attached to the Supplement entered into between Borrower and Lender (or
its designee) providing for the registration rights set forth therein.
4.2 CONDITIONS TO ALL LOANS. The obligation of Lender to make its
initial Loan and each subsequent Loan is subject to the following further
conditions precedent that:
(a) NO DEFAULT. No Default or Event of Default has occurred and is
continuing or will result from the making of any such Loan, and the
representations and warranties of Borrower contained in Article 3 of this
Agreement are true and correct as of the Borrowing Date of such Loan.
(b) NO MATERIAL ADVERSE EFFECT. No event that has had or could
reasonably be expected to have a Material Adverse Effect has occurred.
(c) BORROWING REQUEST. Borrower shall have delivered to Lender a
Borrowing Request for such Loan.
(d) NOTE. Borrower shall have delivered an executed Note evidencing
such Loan, substantially in the form of Exhibit "A" attached to the Supplement.
(e) SUPPLEMENTAL LIEN FILINGS. Borrower shall have executed and
delivered such amendments or supplements to this Agreement and such financing
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statements as Lender may reasonably request in connection with the proposed
Loan, in order to create or perfect or to maintain the perfection of Lender's
Liens on the Collateral.
(f) VCOC LIMITATION. Lender shall not be obligated to make any Loan
under its Commitment if at the time of or after giving effect to the proposed
Loan Lender would no longer qualify as: (A) a "venture capital operating
company" under U.S. Department of Labor Regulations Section 2510.3-101(d), Title
29 of the Code of Federal Regulations, as amended; and (B) a "business
development company" under the provisions of federal Investment Company Act of
1940, as amended; and (C) a "regulated investment company" under the provisions
of the Internal Revenue Code of 1986, as amended (together, the
"Qualifications"). Lender represents that it is so qualified as of the Closing
Date and has no reason to believe it will not remain so qualified, and agrees to
use its best efforts to remain so qualified, as necessary. Lender also
represents that the transactions contemplated by this Agreement, and the
issuance of the Warrant, are permitted transactions for business development
companies under the 1940 Act and for venture capital operating companies under
the Labor Regulations. In the event Lender fails to satisfy the Qualifications
and as a result thereof fails to fund any Loan, then Lender shall promptly
refund to Borrower the pro rata portion of the (i) commitment fee previously
paid by Borrower to Lender in connection with this Agreement and (ii) the
securities issuable pursuant to the Warrant Agreement, which reflects all
remaining Loans that will no longer be advanced by Lender as a result of
Lender's failure to satisfy the Qualifications.
(g) FINANCIAL PROJECTIONS. Borrower shall have delivered to Lender
Borrower's financial projections as most recently approved by Borrower's Board
of Directors.
(h) PAYMENT OF FEES. Borrower shall have paid all fees and expenses
then due to Lender, including a documentation fee of $7,500.00. Such
documentation fee is exclusive of corporate and lien search, and filing fees
disbursed by Lender. The documentation fee shall be applied against the total
amount of Lender's reasonable attorney's fees, costs and expenses incurred in
connection with the preparation and negotiation of the Loan Documents pursuant
to Section 9.8(a) of this Agreement.
ARTICLE 5 - AFFIRMATIVE COVENANTS
During the term of this Agreement and until its performance of all
obligations to Lender, Borrower will:
5.1 NOTICE TO LENDER. Promptly give written notice to Lender of:
(a) Any litigation or administrative or regulatory proceeding affecting
Borrower where the amount claimed against Borrower is at the Threshold Amount or
more, or where the granting of the relief requested could have a Material
Adverse Effect.
(b) Any substantial dispute which may exist between Borrower or any
governmental or regulatory authority, where such dispute could have a Material
Adverse Effect.
(c) The occurrence of any Default or any Event of Default.
(d) Any change in the location of any of Borrower's places of business
or Collateral at least thirty (30) days in advance of such change, or of the
establishment of any new, or the discontinuance of any existing, place of
business.
(e) Any dispute or default by Borrower or any other party under any
joint venture, partnering, distribution, cross-licensing, strategic alliance,
collaborative research or manufacturing, license or similar agreement which
could reasonably be expected to have a Material Adverse Effect.
(f) Any other matter which has resulted or might reasonably result in a
Material Adverse Change.
5.2 FINANCIAL STATEMENTS. Deliver to Lender or cause to be delivered to
Lender, in form and detail satisfactory to Lender the following financial
information, which Borrower warrants shall be accurate and complete in all
material respects:
(a) MONTHLY FINANCIAL STATEMENTS. As soon as available but no later
than forty-five (45) days after the end of each month, Borrower's balance sheet
as of the end of such period, and Borrower's income statement for such period
and for that portion of Borrower's financial reporting year ending with such
period, prepared in accordance with GAAP, except that such interim financial
statements may not contain all footnotes required by GAAP and are subject to
normal year-end adjustments, and attested by the chief financial officer of
Borrower as being complete and correct and fairly presenting Borrower's
financial condition and the results of Borrower's operations.
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After a Qualified Public Offering, Borrower shall have no obligation to deliver
such monthly financial statements; provided, however, that as soon as available
but not later than forty-five (45) days after the end of each of the first three
(3) quarters of each fiscal year of Borrower and for the quarter-annual fiscal
period then ended, Borrower shall deliver financial statements for such periods
prepared on the same basis as the monthly financial statements.
(b) YEAR-END FINANCIAL STATEMENTS. As soon as available but no later
than one hundred twenty (120) days after and as of the end of each financial
reporting year, a complete copy of Borrower's audit report, which shall include
balance sheet, income statement, statement of changes in equity and statement of
cash flows for such year, prepared in accordance with GAAP and certified by an
independent certified public accountant selected by Borrower and reasonably
satisfactory to Lender (the "Accountant"). The Accountant's certification shall
not be qualified or limited due to a restricted or limited examination by the
Accountant of any material portion of Borrower's records or otherwise.
(c) COMPLIANCE CERTIFICATES. Simultaneously with the delivery of each
set of financial statements referred to in paragraphs (a) and (b) above, a
certificate of the chief financial officer or chief executive officer of
Borrower substantially in the form of Exhibit "C" to the Supplement stating
whether any Default or Event of Default exists on the date of such certificate,
and if so, setting forth the details thereof and the action which Borrower is
taking or proposes to take with respect thereto.
(d) GOVERNMENT REQUIRED REPORTS; PRESS RELEASES. Promptly after
sending, issuing, making available, or filing, copies of all statements released
to any news media for publication, all reports, proxy statements, and financial
statements that Borrower sends or makes available to its stockholders, and, not
later than five (5) days after actual filing or the date such filing was first
due, all registration statements and reports that Borrower files or is required
to file with the Securities and Exchange Commission.
(e) OTHER INFORMATION. Such other statements, lists of property and
accounts, budgets, forecasts, reports, or other information as Lender may from
time to time reasonably request; provided, however, that after a Qualified
Public Offering, Lender's right to obtain such information shall be subject to
applicable law. In connection with the foregoing, Lender shall make no
disclosure of confidential information furnished to it by Borrower or any of its
subsidiaries unless such information shall have become public (unless such
information has become public as a result of a violation of this Agreement),
except (i) to legal counsel and accountants for Lender, as applicable, or any
assignee, (ii) to other professional advisors to Lender, as applicable, or any
assignee, provided that they have entered into a comparable confidentiality
agreement in favor of Borrower and have delivered a copy to Borrower, (iii) to
the subsidiaries or affiliates of Lender in connection with their present or
prospective business relations with Borrower, provided that they have entered
into a comparable confidentiality agreement in favor of Borrower and have
delivered a copy to Borrower, (iv) to prospective assignees, transferees or
purchasers of any interest in the Loans, provided that they have entered into a
comparable confidentiality agreement in favor of Borrower and have delivered a
copy to Borrower, (v) as required by law, regulation, rule or order, subpoena,
judicial order or similar order, or (vi) as may reasonable be necessary in
connection with Lender's exercise of any remedies hereunder. Lender acknowledges
that it is aware that federal and state securities laws prohibit any person who
has material non-public information about an issuer from purchasing or selling
securities of such issuer or from communicating such information to any other
person under circumstances in which it is reasonably foreseeable that such
person is likely to purchase or sell such securities.
5.3 MANAGERIAL ASSISTANCE FROM LENDER. Permit Lender to substantially
participate in, and substantially influence the conduct of management of
Borrower through the exercise of "management rights," as that term is defined in
29 C.F.R. Section 2510.3-101(d), including without limitation the following
rights:
(a) Borrower agrees that (i) it will make its officers available during
normal business hours on reasonable advance notice for Lender to consult with
and advise as to the conduct of Borrower's business, its equipment and financing
plans, and its financial condition and prospects and (ii) Lender shall have the
right to inspect Borrower's books, records, facilities and properties at
reasonable times during normal business hours on reasonable advance notice, it
being the intention of the parties that Lender shall be entitled through such
rights, inter alia, to furnish "significant managerial assistance", as defined
in Section 2(a)(47) of the Investment Company Act of 1940, to Borrower.
(b) Without limiting the generality of (a) above, upon the occurrence
of any Default or Event of Default, if Lender reasonably believes that financial
or
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other developments affecting Borrower have impaired or are likely to impair
Borrower's ability to perform its obligations under this Agreement, permit
Lender reasonable access to Borrower's management and/or Board of Directors and
opportunity to present Lender's views with respect to such developments.
Lender shall cooperate with Borrower to ensure that the exercise of Lender's
rights shall not disrupt the business of Borrower. The rights enumerated above
shall not be construed as giving Lender control over Borrower's management or
policies.
5.4 EXISTENCE. Subject to the provisions of Section 6.2, maintain and
preserve Borrower's existence, present corporate form of business, and all
rights and privileges necessary or desirable in the normal course of its
business; and keep all Borrower's property in good working order and condition,
ordinary wear and tear excepted.
5.5 INSURANCE. Obtain and keep in force insurance in such amounts and
types as is usual in the type of business conducted by Borrower, with insurance
carriers having a policyholder rating of not less than "A" and financial
category rating of Class VII in "Best's Insurance Guide," unless otherwise
approved by Lender. Such insurance policies must be in form and substance
satisfactory to Lender, and shall list Lender as an additional insured or loss
payee, as applicable, on endorsement(s) in form reasonably acceptable to Lender.
Borrower shall furnish to Lender such endorsements, and upon Lender's request,
copies of any or all such policies.
5.6 ACCOUNTING RECORDS. Maintain adequate books, accounts and records,
and prepare all financial statements in accordance with GAAP, except that any
unaudited financial statements may not contain all footnotes required by GAAP
and are subject to normal year-end adjustments, and in compliance with the
regulations of any governmental or regulatory authority having jurisdiction over
Borrower or Borrower's business; and permit employees or agents of Lender at
such reasonable times as Lender may request, at Lender's expense unless an Event
of Default has occurred and is continuing, in which case, at Borrower's expense,
to inspect Borrower's properties, and to examine, and make copies and memoranda
of Borrower's books, accounts and records.
5.7 COMPLIANCE WITH LAWS. Comply with all laws (including Environmental
Laws), rules, regulations applicable to, and all orders and directives of any
governmental or regulatory authority having jurisdiction over, Borrower or
Borrower's business, and with all material agreements to which Borrower is a
party, except where the failure to so comply would not have a Material Adverse
Effect.
5.8 TAXES AND OTHER LIABILITIES. Pay all Borrower's Indebtedness when
due; pay all taxes and other governmental or regulatory assessments before
delinquency or before any penalty attaches thereto, except as may be contested
in good faith by the appropriate procedures and for which Borrower shall
maintain appropriate reserves; and timely file all required tax returns.
5.9 SPECIAL COLLATERAL COVENANTS.
(a) MAINTENANCE OF COLLATERAL; INSPECTION. Do all things reasonably
necessary to maintain, preserve, protect and keep all Collateral in good working
order and salable condition, ordinary wear and tear excepted, deal with the
Collateral in all ways as are considered good practice by owners of like
property, and use the Collateral lawfully and, to the extent applicable, only as
permitted by Borrower's insurance policies. Maintain, or cause to be maintained,
complete and accurate Records relating to the Collateral. Upon reasonable prior
notice at reasonable times during normal business hours, Borrower hereby
authorizes Lender's officers, employees, representatives and agents to inspect
the Collateral and to discuss the Collateral and the Records relating thereto
with Borrower's officers and employees.
(b) FINANCING STATEMENTS AND OTHER ACTIONS. Execute and deliver to
Lender all financing statements, notices and other documents from time to time
reasonably requested by Lender to maintain a first perfected security interest
in the Collateral in favor of Lender; perform such other acts, and execute and
deliver to Lender such additional conveyances, assignments, agreements and
instruments, as Lender may at any time reasonably request in connection with the
administration and enforcement of this Agreement or Lender's rights, powers and
remedies hereunder.
(c) LIENS. Not create, incur, assume or permit to exist any Lien or
grant any other Person a negative pledge on any Collateral, except Permitted
Liens on the Collateral.
(d) DOCUMENTS OF TITLE. Not sign or authorize the signing of any
financing statement or other document naming Borrower as debtor or obligor, or
acquiesce or cooperate in the issuance of any xxxx of lading, warehouse receipt
or other document or instrument of title with respect to any Collateral,
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except those negotiated to Lender, or those naming Lender as secured party.
(e) CHANGE IN LOCATION OR NAME. Without at least 30 days' prior written
notice to Lender: (a) not relocate any Collateral or Records, its chief
executive office, or establish a place of business at any location other than as
specified in the Supplement; and (b) not change its name, mailing address,
location of Collateral, or its legal structure.
(f) DECALS, MARKINGS. At the request and expense of Lender, use its
reasonable best efforts to firmly affix a decal, stencil or other marking to
designated items of Equipment, indicating thereon the security interest of
Lender.
(g) AGREEMENT WITH REAL PROPERTY OWNER/LANDLORD. Borrower shall use its
reasonable best efforts to obtain and maintain such acknowledgments, consents,
waivers and agreements from the owner, lienholder, mortgagee and landlord with
respect to any real property on which Equipment is located as Lender may
require, all in form and substance satisfactory to Lender.
5.10 AUTHORIZATION FOR AUTOMATED CLEARINGHOUSE FUNDS TRANSFER. (i)
Authorize Lender to initiate debit entries to Borrower's Primary Operating
Account, specified in the Supplement hereto, through Automated Clearinghouse
("ACH") transfers, in order to satisfy regularly scheduled payments of
principal, interest and Terminal Payments; (ii) provide Lender at least thirty
(30) days notice of any change in Borrower's Primary Operating Account; and
(iii) grant Lender any additional authorizations necessary to begin ACH debits
from a new account which becomes the Primary Operating Account.
ARTICLE 6 - NEGATIVE COVENANTS
During the term of this Agreement and until the performance of all
obligations to Lender, Borrower will not (without Lender's prior written
consent):
6.1 DIVIDENDS. Except after a Qualified Public Offering, pay any
dividends or purchase, redeem or otherwise acquire or make any other
distribution with respect to any of Borrower's capital stock, except (a)
dividends or other distributions solely of capital stock of Borrower, (b) so
long as no Event of Default has occurred and is continuing, repurchases of stock
from employees, officers and/or directors upon termination of employment under
reverse vesting or similar repurchase plans, including without limitation,
repurchases of stock from such employees, officers and/or directors who acquired
such stock being repurchased by the prior payment of cash therefor, and (c)
redemptions of Borrower's capital stock pursuant to the terms of the Certificate
of Incorporation of Borrower and/or the First Amended and Restated Investors'
Rights Agreement, as each of the same me be amended from time to time pursuant
to the terms thereof.
6.2 CHANGE OF CONTROL; CHANGES/MERGERS.
(a) Permit any Person or two or more Persons (excluding (x)
stockholders of the Borrower as of the Closing Date or (y) investors in a bona
fide equity financing who were not stockholders of the Borrower as of the
Closing Date) acting in concert shall have acquired beneficial ownership (within
the meaning of Rule 13d-3 of the Securities and Exchange Commission) of fifty
percent (50%) or more of the outstanding shares of voting stock of Borrower; or
(b) Liquidate or dissolve; or enter into any consolidation, merger or
other combination in which the stockholders of the Borrower immediately prior to
the first such transaction own less than 50% of the voting stock of the Borrower
immediately after giving effect to such transaction or related series of such
transactions, except that Borrower may consolidate or merge so long as: (A) the
entity that results from such merger or consolidation (the "Surviving Entity")
shall have executed and delivered to Lender an agreement in form and substance
reasonably satisfactory to Lender, containing an assumption by the Surviving
Entity of the due and punctual payment and performance of all Obligations and
performance and observance of each covenant and condition of Borrower in the
Loan Documents; (B) all such obligations of the Surviving Entity to Lender shall
be guaranteed by any entity that directly or indirectly owns or controls more
than 50% of the voting stock of the Surviving Entity; (C) immediately after
giving effect to such merger or consolidation, no Event of Default or, event
which with the lapse of time or giving of notice or both, would result in an
Event of Default shall have occurred and be continuing; and (D) the credit risk
to Lender, in its sole discretion, of the Surviving Entity shall not be
increased. In determining whether the proposed merger or consolidation would
result in an increased credit risk, Lender may consider, among other things,
changes in Borrower's management team, employee base, access to equity markets,
venture capital support, financial position and/or disposition of intellectual
property rights which may reasonably be anticipated as a result of the
transaction.
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6.3 SALES OF ASSETS. Sell, transfer, lease, license or otherwise
dispose of (a "Transfer") any of the Collateral except (a) Transfers
constituting Permitted Liens; (b) Transfers of Inventory not constituting
Equipment as to which a Loan was made hereunder; and (c) Transfers permitted in
Section 6.4 hereof.
6.4 LOANS/INVESTMENTS. Make or suffer to exist any loans, guaranties,
advances, or investments (collectively, "Investments"), except:
(a) Accounts receivable in the ordinary course of Borrower's business;
(b) Investments in domestic certificates of deposit issued by, and
other domestic investments with, financial institutions organized under the laws
of the United States or a state thereof, having One Hundred Million Dollars
($100,000,000) in capital and a rating of at least "investment grade" or "A" by
Xxxxx'x or any successor rating agency;
(c) Investments in marketable obligations of the United States of
America and in open market commercial paper given the highest credit rating by a
national credit agency and maturing not more than one year from the creation
thereof;
(d) Temporary advances to cover incidental expenses to be incurred in
the ordinary course of business;
(e) Investments in joint ventures, strategic alliances, licensing and
similar arrangements customary in Borrower's industry and which do not require
Borrower to transfer ownership of Collateral to such joint venture or other
entity;
(f) Investments in wholly-owned subsidiaries of the Borrower; or
(g) Investments permitted under Borrower's Investment Policy (as
amended from time to time), as such policy has been approved by Borrower's Board
of Directors and a copy of which is attached hereto as Exhibit "B".
6.5 TRANSACTIONS WITH RELATED PERSONS. Directly or indirectly enter
into any transaction with or for the benefit of a Related Person on terms more
favorable to the Related Person than would have been obtainable in an "arms'
length" dealing.
6.6 OTHER BUSINESS. Engage in any material line of business other than
the biotechnology and biopharmaceuticals business.
6.7 COMPLIANCE. Become an "investment company" or controlled by an
"investment company," within the meaning of the Investment Company Act of 1940,
or become principally engaged in, or undertake as one of its important
activities, the business of extending credit for the purpose of purchasing or
carrying margin stock, or use the proceeds of any Loan for such purpose. Fail to
meet the minimum funding requirements of ERISA, permit a Reportable Event or
Prohibited Transaction, as defined in ERISA, to occur, fail to comply with the
Federal Fair Labor Standards Act or violate any law or regulation, which
violation could have a Material Adverse Effect or a material adverse effect on
the Collateral or the priority of Lender's Lien on the Collateral, or permit any
of its subsidiaries to do any of the foregoing.
ARTICLE 7 - EVENTS OF DEFAULT
7.1 EVENTS OF DEFAULT; ACCELERATION. Upon the occurrence and during the
continuation of any Default, the obligation of Lender to make any additional
Loan shall be suspended. The occurrence of any of the following (each, an "Event
of Default") shall terminate any obligation of Lender to make any additional
Loan; and shall, at the option of Lender (1) make all sums of Basic Interest and
principal, all Terminal Payments, and any Obligations and other amounts owing
under any Loan Documents immediately due and payable without notice of default,
presentment or demand for payment, protest or notice of nonpayment or dishonor
or any other notices or demands, and (2) give Lender the right to exercise any
other right or remedy provided by contract or applicable law:
(a) Borrower shall fail to pay any principal, interest or Terminal
Payment under this Agreement or any Note, or fail to pay any fees or other
charges when due under any Loan Document, and such failure continues for three
(3) Business Days or more after the same first becomes due; or an Event of
Default as defined in any other Loan Document shall have occurred.
(b) Any representation or warranty made, or financial statement,
certificate or other document provided, by Borrower under any Loan Document
shall prove to have been false or misleading in any material respect when made
or deemed made herein.
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(c) Borrower shall fail to pay its debts generally as they become due
or shall commence any Insolvency Proceeding with respect to itself; an
involuntary Insolvency Proceeding shall be filed against Borrower, or a
custodian, receiver, trustee, assignee for the benefit of creditors, or other
similar official, shall be appointed to take possession, custody or control of
the properties of Borrower, and such involuntary Insolvency Proceeding, petition
or appointment is acquiesced to by Borrower or is not dismissed within sixty
(60) days; or the dissolution or termination of the business of Borrower.
(d) Borrower shall be in default beyond any applicable period of grace
or cure under any other agreement involving the borrowing of money, the purchase
of property, the advance of credit or any other monetary liability of any kind
to Lender or to any Person which results in the acceleration of payment of such
obligation in an amount in excess of Two Hundred Fifty Thousand Dollars
($250,000).
(e) Any governmental or regulatory authority shall take any judicial or
administrative action, or any defined benefit pension plan maintained by
Borrower shall have any unfunded liabilities, any of which, in the reasonable
judgment of Lender, might have a Material Adverse Effect; provided, however,
that the following administrative actions shall not constitute a "Material
Adverse Effect" for purposes of this Section 7.1(e): (i) any administrative
inspection or receipt of a report of observations (e.g., FDA form 483) or notice
of violation following an administrative inspection of Borrower's facilities,
operations or clinical trial activities by a regulatory authority; (ii) receipt
of a warning letter or similar notice of violation of applicable laws or
regulations; (iii) initiation of a voluntary or regulatory authority-initiated
product recall, product retrieval, market withdrawal, product detention, or
seizure; (iv) delay or denial of any request by Borrower for approval of a
product, product license application, investigational new drug (IND)
application, or the like; (v) the debarment or disqualification of any
investigator, institution or institutional review board involved in any of
Borrower's clinical trials; (vi) receipt of a request for information,
clarification, or additional data fro any regulatory authority; or (vii) a
company or regulatory agency-initiated hold or discontinuation of enrollment in
any of Borrower's clinical trials.
(f) Any sale, transfer or other disposition of all or a substantial or
material part of the assets of Borrower, including without limitation to any
trust or similar entity, shall occur.
(g) Any judgment(s) singly or in the aggregate in excess of Two Hundred
Fifty Thousand Dollars ($250,000) shall be entered against Borrower which remain
unsatisfied, unvacated or unstayed pending appeal for thirty (30) or more days
after entry thereof.
(h) Intentionally Omitted.
(i) Borrower shall fail to perform or observe any covenant contained in
Article 6 of this Agreement.
(j) Borrower shall fail to observe any covenant contained in Section
5.9 of this Agreement.
(k) Borrower shall fail to perform or observe any covenant contained in
this Agreement or any other Loan Document (other than a covenant which is dealt
with specifically elsewhere in this Article 7) and, if capable of being cured,
the breach of such covenant is not cured within 30 days after the sooner to
occur of Borrower's receipt of notice of such breach from Lender or the date on
which such breach first becomes known to any officer of Borrower; provided,
however that if such breach is not capable of being cured within such 30-day
period and Borrower timely notifies Lender of such fact and Borrower diligently
pursues such cure, then the cure period shall be extended to the date requested
in Borrower's notice but in no event more than 90 days from the initial breach;
provided, further, that such additional 60-day opportunity to cure shall not
apply in the case of any failure to perform or observe any covenant which has
been the subject of a prior failure within the preceding 180 days or which is a
willful and knowing breach by Borrower.
7.2 REMEDIES UPON DEFAULT. Upon the occurrence and during the
continuance of an Event of Default, Lender shall be entitled to, at its option,
exercise any or all of the rights and remedies available to a secured party
under the Uniform Commercial Code or any other applicable law, and exercise any
or all of its rights and remedies provided for in this Agreement and in any
other Loan Document. The obligations of Borrower under this Agreement shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment of any Obligations is rescinded or must otherwise be returned by
Lender upon, on account of, or in connection with, the insolvency, bankruptcy or
reorganization of Borrower or otherwise, all as though such payment had not been
made.
7.3 SALE OF COLLATERAL. Upon the occurrence and during the continuance
of an Event of Default, Lender may sell all or any part of the Collateral, at
public or private sales, to itself, a wholesaler, retailer or investor,
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for cash, upon credit or for future delivery, and at such price or prices as
Lender may deem commercially reasonable. To the extent permitted by law,
Borrower hereby specifically waives all rights of redemption and any rights of
stay or appraisal which it has or may have under any applicable law in effect
from time to time. Any such public or private sales shall be held at such times
and at such place(s) as Lender may determine. In case of the sale of all or any
part of the Collateral on credit or for future delivery, the Collateral so sold
may be retained by Lender until the selling price is paid by the purchaser, but
Lender shall not incur any liability in case of the failure of such purchaser to
pay for the Collateral and, in case of any such failure, such Collateral may be
resold. Lender may, instead of exercising its power of sale, proceed to enforce
its security interest in the Collateral by seeking a judgment or decree of a
court of competent jurisdiction.
7.4 BORROWER'S OBLIGATIONS UPON DEFAULT. Upon the request of Lender
after the occurrence and during the continuance of an Event of Default, Borrower
will:
(a) Assemble and make available to Lender the Collateral at such
place(s) as Lender shall reasonably designate, segregating all Collateral so
that each item is capable of identification; and
(b) Subject to the rights of any lessor, permit Lender, by Lender's
officers, employees, agents and representatives, to enter any premises where any
Collateral is located, to take possession of the Collateral, to complete the
processing, manufacture or repair of any Collateral, and to remove the
Collateral, or to conduct any public or private sale of the Collateral, all
without any liability of Lender for rent or other compensation for the use of
Borrower's premises.
ARTICLE 8 - SPECIAL COLLATERAL PROVISIONS
8.1 PERFORMANCE OF BORROWER'S OBLIGATIONS. Without having any
obligation to do so, upon reasonable prior notice to Borrower, Lender may
perform or pay any obligation which Borrower has agreed to perform or pay under
this Agreement, including, without limitation, the payment or discharge of taxes
or Liens levied or placed on or threatened against the Collateral. In so
performing or paying, Lender shall determine the action to be taken and the
amount necessary to discharge such obligations. Borrower shall reimburse Lender
on demand for any amounts paid by Lender pursuant to this Section, which amounts
shall constitute Obligations secured by the Collateral and, if not paid within
three (3) Business Days of the receipt of the presentation of invoices, shall
bear interest at the Default Rate.
8.2 POWER OF ATTORNEY. For the purpose of protecting and preserving the
Collateral and Lender's rights under this Agreement, Borrower hereby irrevocably
appoints Lender, with full power of substitution, as its attorney-in-fact with
full power and authority, after the occurrence and during the continuance of an
Event of Default, to do any act which Borrower is obligated to do hereunder; to
exercise such rights with respect to the Collateral as Borrower might exercise;
to use such Equipment, Fixtures or other property as Borrower might use; to
enter Borrower's premises; to give notice of Lender's security interest in, and
to collect the Collateral; and to execute and file in Borrower's name any
financing statements, amendments and continuation statements necessary or
desirable to perfect or continue the perfection of Lender's security interests
in the Collateral. Borrower hereby ratifies all that Lender shall lawfully do or
cause to be done by virtue of this appointment.
8.3 AUTHORIZATION FOR LENDER TO TAKE CERTAIN ACTION. The power of
attorney created in Section 8.2 is a power coupled with an interest and shall be
irrevocable. The powers conferred on Lender hereunder are solely to protect its
interests in the Collateral and shall not impose any duty upon Lender to
exercise such powers. Lender shall be accountable only for amounts that it
actually receives as a result of the exercise of such powers and in no event
shall Lender or any of its directors, officers, employees, agents or
representatives be responsible to Borrower for any act or failure to act, except
for gross negligence or willful misconduct. After the occurrence and during the
continuance of an Event of Default, Lender may exercise this power of attorney
without notice to or assent of Borrower, in the name of Borrower, or in Lender's
own name, from time to time in Lender's sole discretion and at Borrower's
expense. To further carry out the terms of this Agreement, after the occurrence
and during the continuance of an Event of Default, Lender may:
(a) Execute any statements or documents or take possession of, and
endorse and collect and receive delivery or payment of, any checks, drafts,
notes, acceptances or other instruments and documents constituting Collateral,
or constituting the payment of amounts due and to become due or any performance
to be rendered with respect to the Collateral.
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(b) Sign and endorse any invoices, freight or express bills, bills of
lading, storage or warehouse receipts; drafts, certificates and statements under
any commercial or standby letter of credit relating to Collateral; or any other
documents relating to the Collateral, including without limitation the Records.
(c) Use or operate Collateral or any other property of Borrower for the
purpose of preserving or liquidating Collateral.
(d) File any claim or take any other action or proceeding in any court
of law or equity or as otherwise deemed appropriate by Lender for the purpose of
collecting any and all monies due or securing any performance to be rendered
with respect to the Collateral.
(e) Commence, prosecute or defend any suits, actions or proceedings or
as otherwise deemed appropriate by Lender for the purpose of protecting or
collecting the Collateral.
(f) Prepare, adjust, execute, deliver and receive payment under
insurance claims, and collect and receive payment of and endorse any instrument
in payment of loss or returned premiums or any other insurance refund or return,
and apply such amounts at Lender's sole discretion, toward repayment of the
Obligations or replacement of the Collateral.
8.4 APPLICATION OF PROCEEDS. Any Proceeds and other monies or property
received by Lender pursuant to the terms of this Agreement or any Loan Document
may be applied by Lender first to the payment of expenses of collection,
including without limitation reasonable attorneys' fees, and then to the payment
of the Obligations in such order of application as Lender may elect.
8.5 DEFICIENCY. If the Proceeds of any disposition of the Collateral
are insufficient to cover all costs and expenses of such sale and the payment in
full of all the Obligations, plus all other sums required to be expended or
distributed by Lender, then Borrower shall be liable for any such deficiency.
8.6 LENDER TRANSFER. Upon the transfer of all or any part of the
Obligations, Lender may transfer all or part of its security interest in the
Collateral and shall be fully discharged thereafter from all liability and
responsibility with respect to such interests in the Collateral so transferred,
and the transferee shall be vested with all the rights and powers of Lender
hereunder with respect to such Collateral so transferred, but with respect to
any interests in the Collateral not so transferred, Lender shall retain all
rights and powers hereby given.
8.7 LENDER'S DUTIES.
(a) Lender shall use reasonable care in the custody and preservation of
any Collateral in its possession. Without limitation on other conduct which may
be considered the exercise of reasonable care, Lender shall be deemed to have
exercised reasonable care in the custody and preservation of such Collateral if
such Collateral is accorded treatment substantially equal to that which Lender
accords its own property, it being understood that Lender shall not have any
responsibility for ascertaining or taking action with respect to declining value
or other matters relative to any Collateral, regardless of whether Lender has or
is deemed to have knowledge of such matters; or taking any necessary steps to
preserve any rights against any Person with respect to any Collateral. Under no
circumstances shall Lender be responsible for any injury or loss to the
Collateral, or any part thereof, arising from any cause beyond the reasonable
control of Lender.
(b) Lender may at any time deliver the Collateral or any part thereof
to Borrower and the receipt of Borrower shall be a complete and full acquittance
for the Collateral so delivered, and Lender shall thereafter be discharged from
any liability or responsibility therefor.
(c) Neither Lender, nor any of its directors, officers, employees,
agents, attorneys or any other person affiliated with or representing Lender
shall be liable for any claims, demands, losses or damages, of any kind
whatsoever, made, claimed, incurred or suffered by Borrower or any other party
through the ordinary negligence of Lender, or any of its directors, officers,
employees, agents, attorneys or any other person affiliated with or representing
Lender.
8.8 TERMINATION OF SECURITY INTERESTS. Upon the payment in full of the
Obligations and satisfaction of all Borrower's obligations under this Agreement
and the other Loan Documents (other than Obligations under the Warrant), and if
Lender has no further obligations under its Commitment, the security interest
granted hereby shall terminate and all rights to the Collateral shall revert to
Borrower. Upon any such termination, the Lender shall, at Borrower's expense,
execute and deliver to Borrower such documents as Borrower shall reasonably
request to evidence such termination.
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ARTICLE 9 - GENERAL PROVISIONS
9.1 NOTICES. Any notice given by any party under any Loan Document
shall be in writing and personally delivered, sent by overnight courier, or
United States mail, postage prepaid, or sent by facsimile, or other
authenticated message, charges prepaid, to the other party's or parties'
addresses shown on the Supplement. Each party may change the address or
facsimile number to which notices, requests and other communications are to be
sent by giving written notice of such change to each other party. Notice given
by hand delivery shall be deemed received on the date delivered; if sent by
overnight courier, on the next business day after delivery to the courier
service; if by first class mail, on the third business day after deposit in the
U.S. Mail; and if by facsimile, on the date of transmission.
9.2 BINDING EFFECT. The Loan Documents shall be binding upon and inure
to the benefit of Borrower and Lender and their respective successors and
assigns; provided, however, that Borrower may not assign or transfer Borrower's
rights or obligations under any Loan Document without Lender's prior written
consent. Lender reserves the right to sell, assign, transfer, negotiate or grant
participations in all or any part of, or any interest in, Lender's rights and
obligations under the Loan Documents. In connection with any of the foregoing,
Lender may disclose all documents and information which Lender now or hereafter
may have relating to the Loans, Borrower, or its business; provided that any
person who receives such information shall have agreed in writing in advance to
maintain the confidentiality of such information on terms reasonably acceptable
to Borrower. Borrower acknowledges that Lender may grant a security interest in
Lender's rights under this Agreement and the other Loan Documents in connection
with Lender's own financing arrangements. Borrower agrees not to assert against
any such collateral assignee of Lender any counterclaim, offset or dispute
Borrower may have against Lender. It is the intention of the parties that, as a
"venture capital operating company," Venture Lending & Leasing III, LLC ("LLC"),
the parent and sole owner of Venture Lending & Leasing III, Inc., shall have the
benefit of, and the power to independently exercise, those "management rights"
provided in Section 5.3. To that end, the references to Lender in Sections
4.2(f), 5.1, 5.2, 5.3 and 5.9(a) hereof shall include LLC, and LLC shall have
the right to exercise the advisory, inspection, information and other rights
given to lender under those Sections independently of Lender. No amendment or
modification of this Agreement shall alter or diminish LLC's rights under the
preceding sentence without the consent of LLC.
9.3 NO WAIVER. Any waiver, consent or approval by Lender of any Event
of Default or breach of any provision, condition, or covenant of any Loan
Document must be in writing and shall be effective only to the extent set forth
in writing. No waiver of any breach or default shall be deemed a waiver of any
later breach or default of the same or any other provision of any Loan Document.
No failure or delay on the part of Lender in exercising any power, right, or
privilege under any Loan Document shall operate as a waiver thereof, and no
single or partial exercise of any such power, right, or privilege shall preclude
any further exercise thereof or the exercise of any other power, right or
privilege. Lender has the right at its sole option to continue to accept
interest and/or principal payments due under the Loan Documents after default,
and such acceptance shall not constitute a waiver of said default or an
extension of the Maturity Date unless Lender agrees otherwise in writing.
9.4 RIGHTS CUMULATIVE. All rights and remedies existing under the Loan
Documents are cumulative to, and not exclusive of, any other rights or remedies
available under contract or applicable law.
9.5 UNENFORCEABLE PROVISIONS. Any provision of any Loan Document
executed by Borrower which is prohibited or unenforceable in any jurisdiction,
shall be so only as to such jurisdiction and only to the extent of such
prohibition or unenforceability, but all the remaining provisions of any such
Loan Document shall remain valid and enforceable.
9.6 ACCOUNTING TERMS. Except as otherwise provided in this Agreement,
accounting terms and financial covenants and information shall be determined and
prepared in accordance with GAAP.
9.7 INDEMNIFICATION; EXCULPATION. Borrower shall pay and protect,
defend and indemnify Lender and Lender's employees, officers, directors,
shareholders, affiliates, correspondents, agents and representatives (other than
Lender, collectively "Agents") against, and hold Lender and each such Agent
harmless from, all claims, actions, proceedings, liabilities, damages, losses,
reasonable expenses (including, without limitation, reasonable attorneys' fees
and costs) and other amounts incurred by Lender and each such Agent, arising
from (i) the matters contemplated by this Agreement or any other Loan Documents
or (ii) any contention that Borrower has failed to comply with any law, rule,
regulation, order or directive applicable to Borrower's business;
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PROVIDED, HOWEVER, that this indemnification shall not apply to any of the
foregoing incurred solely as the result of Lender's or any Agent's gross
negligence or willful misconduct. This indemnification shall survive the payment
and satisfaction of all of Borrower's Obligations to Lender.
9.8 REIMBURSEMENT. Borrower shall reimburse Lender for all reasonable
costs and expenses, including without limitation reasonable attorneys' fees and
disbursements expended or incurred by Lender in any arbitration, mediation,
judicial reference, legal action or otherwise in connection with (a) the
preparation and negotiation of the Loan Documents, (b) the amendment and
enforcement of the Loan Documents, including without limitation during any
workout, attempted workout, and/or in connection with the rendering of legal
advice as to Lender's rights, remedies and obligations under the Loan Documents,
(c) collecting any sum which becomes due Lender under any Loan Document, (d) any
proceeding for declaratory relief, any counterclaim to any proceeding, or any
appeal, or (e) the protection, preservation or enforcement of any rights of
Lender. For the purposes of this section, attorneys' fees shall include, without
limitation, fees incurred in connection with the following: (1) contempt
proceedings; (2) discovery; (3) any motion, proceeding or other activity of any
kind in connection with an Insolvency Proceeding; (4) garnishment, levy, and
debtor and third party examinations; and (5) postjudgment motions and
proceedings of any kind, including without limitation any activity taken to
collect or enforce any judgment. All of the foregoing costs and expenses shall
be payable upon demand by Lender, and if not paid within forty-five (45) days of
presentation of invoices shall bear interest at the highest applicable Default
Rate.
9.9 EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts which, when taken together, shall constitute but one
agreement.
9.10 ENTIRE AGREEMENT. The Loan Documents are intended by the parties
as the final expression of their agreement and therefore contain the entire
agreement between the parties and supersede all prior understandings or
agreements concerning the subject matter hereof. This Agreement may be amended
only in a writing signed by Borrower and Lender.
9.11 GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT AND THE LOAN DOCUMENTS SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA
OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF BORROWER AND LENDER CONSENTS,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH OF BORROWER AND LENDER IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. BORROWER AND LENDER EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
CALIFORNIA LAW.
9.12 WAIVER OF JURY TRIAL. BORROWER AND LENDER EACH WAIVES ITS
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR
ANY PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. BORROWER AND LENDER EACH AGREES THAT ANY SUCH CLAIM OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING
THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL
BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER
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PROCEEDING WHICH SEEMS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
ARTICLE 10 - DEFINITIONS
The definitions appearing in this Agreement or any Supplement shall be
applicable to both the singular and plural forms of the defined terms:
"ACCOUNT" means any "account," as such term is defined in the UCC, now owned or
hereafter acquired by Borrower or in which Borrower now holds or hereafter
acquires any interest and, in any event, shall include, without limitation, all
accounts receivable, book debts and other forms of obligations (other than forms
of obligations evidenced by Chattel Paper, Documents or Instruments) now owned
or hereafter received or acquired by or belonging or owing to Borrower
(including, without limitation, under any trade name, style or division thereof)
whether arising out of goods sold or services rendered by Borrower or from any
other transaction, whether or not the same involves the sale of goods or
services by Borrower (including, without limitation, any such obligation that
may be characterized as an account or contract right under the UCC) and all of
Borrower's rights in, to and under all purchase orders or receipts now owned or
hereafter acquired by it for goods or services, and all of Borrower's rights to
any goods represented by any of the foregoing (including, without limitation,
unpaid seller's rights of rescission, replevin, reclamation and stoppage in
transit and rights to returned, reclaimed or repossessed goods), and all monies
due or to become due to Borrower under all purchase orders and contracts for the
sale of goods or the performance of services or both by Borrower or in
connection with any other transaction (whether or not yet earned by performance
on the part of Borrower), now in existence or hereafter occurring, including,
without limitation, the right to receive the proceeds of said purchase orders
and contracts, and all collateral security and guarantees of any kind given by
any Person with respect to any of the foregoing.
"AFFILIATE" means any Person which directly or indirectly controls, is
controlled by, or is under common control with Borrower. "Control," "controlled
by" and "under common control with" mean direct or indirect possession of the
power to direct or cause the direction of management or policies (whether
through ownership of voting securities, by contract or otherwise); provided,
that control shall be conclusively presumed when any Person or affiliated group
directly or indirectly owns ten percent (10%) or more of the securities having
ordinary voting power for the election of directors of a corporation.
"AGREEMENT" means this Loan and Security Agreement and each Supplement thereto,
as each may be amended or supplemented from time to time.
"BANKRUPTCY CODE" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.), as amended.
"BASIC INTEREST" means the fixed rate of interest payable on the outstanding
balance of each Loan at the applicable Designated Rate.
"BORROWING DATE" means the Business Day on which the proceeds of a Loan are
disbursed by Lender.
"BORROWING REQUEST" means a written request from Borrower in substantially the
form of Exhibit "B" to the Supplement, requesting the funding of one or more
Loans on a particular Borrowing Date.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day on which
commercial banks in New York City or San Francisco are authorized or required by
law to close.
"CHATTEL PAPER" means any "chattel paper," as such term is defined in the UCC,
now owned or hereafter acquired by Borrower or in which Borrower now holds or
hereafter acquires any interest.
"CLOSING DATE" means the date of this Agreement.
"COLLATERAL" means all of Borrower's right, title and interest in and to
Equipment and Soft Costs, whether now or hereafter owned or acquired by Borrower
and wherever located; and whether held by Borrower or in the possession of any
third party, and all Proceeds of each of the foregoing and all accessions to,
substitutions and replacements for, and rents, profits and products of each of
the foregoing.
"COMMITMENT" means the obligation of Lender to make Loans to Borrower up to the
aggregate principal amount set forth in the Supplement.
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"DEFAULT" means an event which with the giving of notice, passage of time, or
both would constitute an Event of Default.
"DEFAULT RATE" is defined in Section 2.7.
"DESIGNATED RATE" means the rate of interest per annum described in the
Supplement as being applicable to an outstanding Loan from time to time.
"ENVIRONMENTAL LAWS" means all federal, state or local laws, statutes, common
law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any governmental authorities, in each case
relating to environmental, health, or safety matters.
"EQUIPMENT" means each item of "equipment" and "goods," as such terms are
defined in the UCC, described on Schedule 1 attached to the Supplement and
incorporated herein by this reference (as such Schedule 1 may be amended or
supplemented from time to time), now owned or hereafter acquired by Borrower or
in which Borrower now holds or hereafter acquires any interest, and any and all
additions, substitutions and replacements of any of the foregoing, wherever
located, together with all attachments, components, parts, equipment and
accessories installed thereon or affixed thereto; and all proceeds of the
foregoing arising from the sale, lease, use of other disposition of all or any
portion of such property, including all rights to payments with respect to
insurance or condemnation of the foregoing, and any cause of action relating to
any of the foregoing.
"EVENT OF DEFAULT" means any event described in Section 7.1.
"GAAP" means generally accepted accounting principles and practices consistent
with those principles and practices promulgated or adopted by the Financial
Accounting Standards Board and the Board of the American Institute of Certified
Public Accountants, their respective predecessors and successors. Each
accounting term used but not otherwise expressly defined herein shall have the
meaning given it by GAAP.
"INDEBTEDNESS" of any Person means at any date, without duplication and without
regard to whether matured or unmatured, absolute or contingent: (i) all
obligations of such Person for borrowed money; (ii) all obligations of such
Person evidenced by bonds, debentures, notes, or other similar instruments;
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business; (iv) all obligations of such Person as lessee under capital
leases; (v) all obligations of such Person to reimburse or prepay any bank or
other Person in respect of amounts paid under a letter of credit, banker's
acceptance, or similar instrument, whether drawn or undrawn; (vi) all
obligations of such Person to purchase securities which arise out of or in
connection with the sale of the same or substantially similar securities; (vii)
all obligations of such Person to purchase, redeem, exchange, convert or
otherwise acquire for value any capital stock of such Person or any warrants,
rights or options to acquire such capital stock, now or hereafter outstanding,
except to the extent that such obligations remain performable solely at the
option of such Person; (viii) all obligations to repurchase assets previously
sold (including any obligation to repurchase any accounts or chattel paper under
any factoring, receivables purchase, or similar arrangement); (ix) obligations
of such Person under interest rate swap, cap, collar or similar hedging
arrangements; and (x) all obligations of others of any type described in clause
(i) through clause (ix) above guaranteed by such Person.
"INSOLVENCY PROCEEDING" means (a) any case, action or proceeding before any
court or other governmental authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors, or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other, similar arrangement
in respect of its creditors generally or any substantial portion of its
creditors, undertaken under U.S. Federal, state or foreign law, including the
Bankruptcy Code.
"INSTRUMENTS" means any "instrument," as such term is defined in the UCC, now
owned or hereafter acquired by Borrower or in which Borrower now holds or
hereafter acquires any interest.
"INVENTORY" means any "inventory," as such term is defined in the UCC, wherever
located, now owned or hereafter acquired by Borrower or in which Borrower now
holds or hereafter acquires any interest, and, in any event, shall include,
without limitation, all inventory, goods and other personal property that are
held by or on behalf of Borrower for sale or lease or are furnished or are to be
furnished under a contract of service or that constitute raw materials, work in
process or materials used or consumed or to be used or consumed in Borrower's
business, or the processing, packaging, promotion, delivery or
16
shipping of the same, and all finished goods, whether or not the same is in
transit or in the constructive, actual or exclusive possession of Borrower or is
held by others for Borrower's account, including, without limitation, all goods
covered by purchase orders and contracts with suppliers and all goods billed and
held by suppliers and all such property first may be in the possession or
custody of any carriers, forwarding agents, truckers, warehousemen, vendors,
selling agents or other Persons.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation, assignment for
security, security interest, encumbrance, xxxx, xxxx or charge of any kind,
whether voluntarily incurred or arising by operation of law or otherwise,
against any property, any conditional sale or other title retention agreement,
any lease in the nature of a security interest, and the filing of any financing
statement (other than a precautionary financing statement with respect to a
lease that is not in the nature of a security interest) under the UCC or
comparable law of any jurisdiction.
"LOAN" means an extension of credit by Lender under this Agreement.
"LOAN DOCUMENTS" means, individually and collectively, this Loan and Security
Agreement, each Supplement, each Note, and any other security or pledge
agreement(s) referred to in this Loan and Security Agreement, any Warrants
issued by Borrower to Lender in connection with this Agreement, and all other
contracts, instruments, addenda and documents executed in connection with this
Agreement or the extensions of credit which are the subject of this Agreement.
"MATERIAL ADVERSE EFFECT" or "MATERIAL ADVERSE CHANGE" means (a) a material
adverse change in, or a material adverse effect upon, the operations, business,
properties, or financial condition of Borrower; (b) a material impairment of the
ability of Borrower to perform under any Loan Document; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability
against Borrower of any Loan Document.
"MATURITY DATE" means, with regard to a Loan, the earlier of (i) its maturity by
reason of acceleration, or (ii) its stated maturity date; and is the date on
which payment of all outstanding principal, accrued interest, and the Terminal
Payment with respect to such Loan is due.
"NOTE" means a promissory note substantially in the form attached to the
Supplement as Exhibit "A", executed by Borrower evidencing each Loan.
"OBLIGATIONS" means all debts, obligations and liabilities of Borrower to Lender
currently existing or now or hereafter made, incurred or created under, pursuant
to or in connection with this Agreement or any other Loan Document, whether
voluntary or involuntary and however arising or evidenced, whether direct or
acquired by Lender by assignment or succession, whether due or not due, absolute
or contingent, liquidated or unliquidated, determined or undetermined, and
whether Borrower may be liable individually or jointly, or whether recovery upon
such debt may be or become barred by any statute of limitations or otherwise
unenforceable; and all renewals, extensions and modifications thereof; and all
attorneys' fees and costs incurred by Lender in connection with the collection
and enforcement thereof as provided for in any Loan Document.
"PERMITTED LIEN" means
(a) involuntary Liens which, in the aggregate, would not have a
Material Adverse Effect and which in any event would not exceed, in the
aggregate, the Threshold Amount;
(b) Liens for current taxes or other governmental or regulatory
assessments which are not delinquent, or which are contested in good faith by
the appropriate procedures and for which appropriate reserves are maintained;
(c) Liens in favor of Lender;
(d) bankers' liens, rights of setoff and similar Liens incurred on
deposits made in the ordinary course of business;
(e) materialmen's, mechanics', repairmen's, employees' or other like
Liens arising in the ordinary course of business and which are not delinquent
for more than 45 days or are being contested in good faith by appropriate
proceedings; and
(f) any judgment, attachment or similar Lien, unless the judgment it
secures has not been discharged or execution thereof effectively stayed and
bonded against pending appeal within 30 days of the entry thereof.
"PERSON" means any individual, sole proprietorship, partnership, joint venture,
trust, unincorporated organization, association, corporation, limited
17
liability company, institution, public benefit corporation, other entity or
government (whether federal, state, county, city, municipal, local, foreign, or
otherwise, including any instrumentality, division, agency, body or department
thereof).
"PROCEEDS" means "proceeds," as such term is defined in the UCC and, in any
event, shall include, without limitation, (a) any and all Accounts, Chattel
Paper, Instruments, cash or other forms of money or currency or other proceeds
payable to Borrower from time to time in respect of the Collateral, (b) any and
all proceeds of any insurance, indemnity, warranty or guaranty payable to
Borrower from time to time with respect to any of the Collateral, (c) any and
all payments (in any form whatsoever) made or due and payable to Borrower from
time to time in connection with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the Collateral by any governmental
authority (or any Person acting under color of governmental authority), (d) any
and all other amounts from time to time paid or payable under or in connection
with any of the Collateral.
"QUALIFIED PUBLIC OFFERING" means the closing of a firmly underwritten public
offering of Borrower's common stock with aggregate proceeds of not less than
$20,000,000 (prior to underwriting expenses and commissions).
"RECORDS" means all Borrower's computer programs, software, hardware, source
codes and data processing information, all written documents, books, invoices,
ledger sheets, financial information and statements, and all other writings
concerning Equipment and other Collateral.
"RELATED PERSON" means any Affiliate of Borrower, or any officer, employee,
director or equity security holder of Borrower or any Affiliate.
"SOFT COSTS" has the meaning specified in the Supplement.
"TERMINAL PAYMENT" means, with respect to each Equipment Loan, an amount payable
on the Maturity Date of such Loan in an amount equal to that percentage of the
original principal amount of such Loan specified in the Supplement.
"TERMINATION DATE" has the meaning specified in the Supplement.
"THRESHOLD AMOUNT" has the meaning specified in the Supplement.
"UCC" means the Uniform Commercial Code as the same may, from time to time, be
in effect in the State of California; provided, that in the event that, by
reason of mandatory provisions of law, any or all of the attachment, perfection
or priority of, or remedies with respect to, Lender's Lien on any Collateral is
governed by the Uniform Commercial Code as enacted and in effect in a
jurisdiction other than the State of California, the term "UCC" shall mean the
Uniform Commercial Code as enacted and in effect in such other jurisdiction
solely for purposes of the provisions thereof relating to such attachment,
perfection, priority or remedies and for purposes of definitions related to such
provisions. Unless otherwise defined herein, terms that are defined in the UCC
and used herein shall have the meanings given to them in the UCC.
Remainder of page intentionally left blank; signature pages follow
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
BORROWER:
CANCERVAX CORPORATION
By: /s/ Xxxxx X. Xxxx
----------------------
Name: XXXXX X. XXXX
Title: PRESIDENT/CEO
LENDER:
VENTURE LENDING & LEASING III, INC.
By: /s/ Xxx Xxxxxxx
---------------------
Name: Xxx Xxxxxxx
Title: CEO
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