Exhibit 10.27
FINANCIAL INNOVATORS
[LOGO]
FINOVA Capital Corporation
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
(000) 000-0000
MASTER LOAN AND SECURITY AGREEMENT
Master Loan and Security Agreement No. S7600, dated December 30, 1999
FINOVA Capital Corporation ("we," "us" or "FINOVA"), having its principal place
of business at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 is willing to
make a loan (the "Loan") to Cytogen Corporation having its principal place of
business at 000 Xxxxxxx Xxxx Xxxx, XX 0000,Xxxxxxxxx, Xxx Xxxxxx 00000 and
AxCell Biosciences Corporation, jointly and severally liable (collectively
"you" or "Borrower"), having its principal place of business at 000 Xxxxxxx
Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, in one or more advances made from
time to time (individually, an "Advance" and collectively, the "Advances"), in
the aggregate principal amount of up to One Million, Four Hundred Thousand
Dollars ($1,400,000), under the terms and conditions contained in this Master
Loan and Security Agreement (this "Master Agreement"). The entire Loan will be
"cross collateralized" and secured by the collateral (the "Collateral")
described in each schedule (individually, a "Schedule" and collectively,
"Schedules") which will be executed in connection with each Advance and the
related Note (as hereinafter defined). The Collateral includes the Equipment
hereinafter described and any and all replacement parts, additions, accessories
and accessions that you may add to the Equipment, as well as all replacements
and substitutions of the Equipment and all proceeds of the Equipment, including,
without limitation, insurance proceeds. We may treat any Schedule as a separate
loan and security agreement containing all of the provisions of this Master
Agreement.
1. THE CREDIT
(a) Advances. Each Advance shall be evidenced by and the specific terms
applicable thereto set forth in a Note and related Schedule. All of the Notes
and Schedules, taken together, will evidence the entire Loan. We will only make
the Loan to you if all the conditions in this Master Agreement have been met to
our reasonable satisfaction. We will rely on your representations and
warranties contained in this Master Agreement, in making the Loan. The terms of
this Master Agreement will each apply to the entire Loan.
(b) Use of Proceeds. The proceeds of the Advances will be used solely to
reimburse you for your payment of the purchase price for equipment which is
reasonably satisfactory to us and which is described in the applicable Schedule
("Equipment"). If you have not yet paid for the Equipment (but the same is
otherwise satisfactory to us), the proceeds of the Advance will be paid by us
directly to the supplier (which you have chosen) to pay the purchase price of
the Equipment.
(c) Notes. Your obligation to repay the Advance and to pay interest
thereon will be evidenced by separate secured promissory notes (individually, a
"Note" and collectively, the "Notes"). Each Note will be dated the date of the
Schedule to which the Advance evidenced by the Note is related. The related
Schedule will be deemed to be part of the Note.
(d) Term. The term ("Term") of each Schedule (and the related Advance)
begins upon the date that we make payment for the Collateral covered under the
Schedule (the "Closing Date"). The Term continues until you fully perform all
of your obligations under this Master Agreement, each related Schedule and the
related Note(s).
(e) Loan Account. We will keep a loan account on our books and records
for the Loan. We will record all payments of principal and interest in the loan
account. Unless the entries in the loan account are in error, the loan account
will definitively indicate the outstanding principal balance and accrued
interest on the Loan.
(f) Payments. The scheduled payments of principal and interest (the
"Payments") are indicated on and due and payable in accordance with the terms of
the applicable Note and Schedule. The Payments are payable in advance and
otherwise on the dates and in the amounts set forth on the applicable Schedule.
(g) First Payment and Subsequent Payments. The first Payment under a Note
and Advance ("First Payment") is due at the beginning of its Term and shall, at
our option, either be deducted from the proceeds of the Advance or paid directly
to us by you. Subsequent Payments are due on the thirtieth (30th) day of each
successive month as set forth on the Schedule until you pay to us in full all of
the Payments and any other fees, costs, charges and expenses that you owe us.
(h) Interest. Prior to Maturity of an Advance, you will pay us interest
on the Advance at the interest rate indicated in the applicable Schedule (the
"Interest Rate"). "Maturity" means the scheduled maturity or any earlier date on
which we accelerate the Loan. The Payment amount indicated in the Schedule
includes interest at the applicable Interest Rate. Interest is calculated in
advance using a year of 360 days with twelve months of 30 days.
(i) Interim Interest Payment. If an Advance is made on a day other than
the thirtieth (30th) or thirty-first (31st) day of a month, you will also pay to
us, together with the First Payment, interest on the Advance at the applicable
interest rate for the period from the date the Advance is made until the twenty-
ninth (29th) day of the month in which the Advance is made. If an Advance is
made on the thirty-first (31st) day of a month, you will also pay to us,
together with the First Payment, interest on the Advance at the applicable
interest rate for the period from the date the Advance is made until the twenty-
ninth (29th) day of the following month. If an Advance is made on the thirtieth
(30th) day of a month, no interim interest will be due.
(j) Default Interest Rate. After Maturity of the Loan or any Advance, you
will pay us interest thereon at a rate of four (4%) percent per year above the
applicable Interest Rate. This is referred to as the "Default Rate."
(k) Usury. You and we intend to obey the law. If the Interest Rate
charged would exceed the maximum legal rate, you will only have to pay the
maximum legal rate. You do not have to pay any excess interest over and above
the maximum legal rate of interest. However, if it later becomes legal for you
to pay all or part of any excess interest, you will then pay it to us upon our
request.
(l) Payment Details. You will make all Payments due under this Master
Agreement by 12:00 P.M., Connecticut time, on the day they are due. You will
make all Payments in US Dollars (US$) in immediately available funds. We do not
have to make or give "presentment, demand, protest or notice" to get paid. You
waive "presentment, demand, protest and notice."
(m) Application of Payments. Each Payment under this Master Agreement is
to be
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applied in the following order: first, to any fees, costs, expenses and
charges you may owe us; second, to any interest due; and third to the principal
balance.
(n) Prepayment. You may prepay the Loan as specifically permitted by
Exhibit B to the applicable Schedule.
(o) No Setoffs. Your obligation to pay us all Payments is absolute and
unconditional. You are not excused from making the Payments, in full, for any
reason. You agree that you have no defense for failure to make the Payments and
you will not make any counterclaims or setoffs to avoid making the Payments.
2. SECURITY INTEREST
(a) You grant us a first and only lien on and security interest in the
Collateral. The Collateral secures the full and timely payment and performance
of all of your now existing or hereafter arising indebtedness, liabilities and
obligations to us, whether under this Master Agreement, the Schedules, the Notes
and any other agreement, loan or lease that you may at any time or times have
with us or otherwise (collectively, the "Obligations"). You also grant us a
security interest in any additional collateral identified in any Schedule. Any
additional collateral is considered to be "Collateral" and it secures all of the
Obligations.
(b) If we request, you will put labels supplied by us stating "PROPERTY
SUBJECT TO A SECURITY INTEREST HELD BY FINOVA CAPITAL CORPORATION" on the
Collateral where they are clearly visible.
(c) You give us permission to add to this Master Agreement or any Schedule
the serial numbers and other information about the Collateral.
(d) You give us permission to file this Master Agreement or Uniform
Commercial Code financing statements, at your expense, in order to perfect our
security interest in the Collateral. You also give us permission to sign your
name on the Uniform Commercial Code financing statements where this is permitted
by law.
(e) You will pay our fees and costs for documentation, closing,
administration and termination of this Master Agreement, the Notes and
Schedules. These fees include such items as reasonable attorneys fees and
expenses incurred in preparing this Master Agreement and all agreements,
instruments and documents executed in connection herewith, and all amendments,
supplements and waivers hereto and thereto, as well as due diligence searches
and fees for preparing and filing UCC terminations and releases. You will also
pay any filing, recording or stamp fees or taxes resulting from filing this
Master Agreement or Uniform Commercial Code financing statements.
(f) At your expense, you will defend our first priority security interest
in the Collateral against, and keep the Collateral free of, any legal process,
liens, other security interests, attachments, levies and executions. You will
give us immediate written notice of any legal process, liens, attachments,
levies or executions, and you will indemnify us against any loss that results to
us from these causes.
(g) You will notify us at least 15 days before you change the address of
your principal executive office or principal place of business. Your principal
executive office and principal place of business are set forth at the beginning
of this Master Agreement.
(h) You will notify us at least 15 days before you change your state of
incorporation.
(i) You will promptly sign and return additional documents that we may
reasonably request in order to protect our first priority security interest in
the Collateral.
(j) Except as set forth in a Schedule, the Collateral is personal property
and will remain personal property. Except as set forth in a Schedule, you will
not incorporate it into real estate and will not do anything that will cause the
Collateral to become part of real estate or a fixture.
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3. CONDITIONS OF LENDING
(a) See our Commitment Letter to you dated December 20, 1999 (the
"Commitment Letter"), which you and we consider to be a part of this Master
Agreement. The terms and conditions of the Commitment Letter continue following
the making of the first Advance, including, without limitation, conditions to
the Loan. However, if there is a conflict between the terms and conditions of
this Master Agreement, any Schedule or any Note and the terms and conditions of
the Commitment Letter, then you and we agree that the terms and conditions of
this Master Agreement, the Schedules and the Notes control over the Commitment
Letter terms and conditions.
(b) Before we disburse any proceeds of any Advance, we also require the
following:
(i) That no payment is past due to us under any other agreement, loan or
lease that you or any guarantor have with us.
(ii) That you are complying with all terms of this Master Agreement, the
Schedules and the Notes and there are no defaults hereunder or thereunder.
(iii) That we have received all the documents we requested, including
the signed Schedule and Note.
(iv) That there has been no material adverse change in your financial
condition, business or operations, or that of any guarantor, from the financial
condition that you or any guarantor have disclosed to us.
(v) All conditions contained in the Commitment Letter have been
satisfied.
4. REPRESENTATIONS AND WARRANTIES
You represent and warrant to us as follows:
(a) You and each guarantor are duly organized, existing and in good
standing wherever you or it are required by law to be so qualified, except where
such lack of qualification would not have a material adverse impact on your or
any guarantor's operations. You and each guarantor have full power and authority
to execute, deliver and carry out the provisions of this Master Agreement, the
Schedules and the Notes and to borrow hereunder and thereunder. This Master
Agreement, the Schedules and the Notes are validly executed and delivered by you
and the guarantors and are the legal, valid and binding obligations of you and
the guarantors, each enforceable in accordance with its terms.
(b) Neither you nor any guarantor is a defendant under any material
litigation and there are no judgments outstanding against you or any guarantor.
(c) All of the Equipment has been delivered to you and installed at the
location set forth on the Schedule and you have accepted all of the Equipment
for all purposes of this Master Agreement.
(d) You have good title to all of your assets, including, without
limitation, the Collateral, and in the case of the Collateral, free and clear of
all security interests, liens and other encumbrances. Upon filing of UCC-1
financing statements in all applicable filing offices, we will be granted a
first and only perfected lien on and security interest in all of the Collateral.
There are no other security interests, liens or encumbrances covering the
Collateral.
(e) You have supplied us with information about the Collateral. To the best
of your knowledge the amount of our Advance as to each item of Equipment is no
more than the fair and usual price for this kind of Equipment, taking into
account any discounts, rebates and allowances that you or any affiliate of yours
may have been given for the Equipment.
(f) The Collateral is located at the premises set forth on the Schedule.
(g) All financial information and other information that you or any
guarantor have given us is true and complete when provided. You or
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any guarantor have not failed to tell us anything that would make the financial
information not misleading in any material respect. There has been no material
adverse change in your financial condition, business or operations, or the
financial condition of any guarantor, from the financial condition that you
disclosed to us.
(h) You have complied with all "environmental laws" and will continue to
comply with all "environmental laws." No "hazardous substances" are used,
generated, treated, stored or disposed of by you or at your properties except in
compliance with all environmental laws. "Environmental laws" mean all federal,
state or local environmental laws and regulations, including the following laws:
CERCLA, RCRA, Hazardous Materials Transport Act and The Federal Water Pollution
Control Act. "Hazardous substances" means all hazardous or toxic wastes,
materials or substances, as defined in the environmental laws, as well as oil,
flammable substances, asbestos that is or could become friable, urea
formaldehyde insulation, polychlorinated biphenyls and radon gas.
5. COVENANTS
You agree to do the following things (or not to do the following things if so
stated) until full payment of all amounts due to us under this Master Agreement,
the Schedules and the Notes:
(a) Care, Use, Location, Transfer, Encumbrance And Alteration of The
Collateral.
(i) You will make sure that the Collateral is maintained in good
operating condition, and that it is serviced, repaired and overhauled when this
is necessary to keep the Collateral in good operating condition. All maintenance
must be done according to the Supplier's or Manufacturer's requirements or
recommendations. All maintenance must also comply with any legal or regulatory
requirements.
(ii) You will maintain service logs for the Collateral, if applicable,
and permit us or our agents to inspect the Collateral, the service logs and
service reports. You give us and our agents permission to make copies of the
service logs and service reports.
(iii) We will give you prior notice if we, or our agents, want to inspect
the Collateral or the service logs or service reports. We may inspect it during
regular business hours. If we find during an inspection that you are not
complying with this Master Agreement in any material respect or if you are
otherwise in default under this Master Agreement, you (and not us) will pay our
travel, meals and lodging costs, our salary costs, and our costs and fees and
those of our agents for reinspection. You will promptly cure any problems with
the Collateral that are discovered during our inspections.
(iv) You will use the Collateral only for business purposes. You will
obey all legal and regulatory requirements in your use of the Collateral.
(v) You will make all additions, modifications and improvements to the
Collateral that are required by law or government regulation. Otherwise, you
will not alter the Collateral without our written permission, which will not be
unreasonably withheld. You will replace all worn, lost, stolen or destroyed
parts of the Collateral with replacement parts that are as good or better than
the original parts. The new parts will become subject to our security interest
upon replacement.
(vi) You will not remove the Collateral from the location indicated in
the Schedule.
(vii) You have and will have good and merchantable title to all of the
Collateral.
(viii) You will not convey, assign, sell, mortgage, transfer, encumber,
pledge, hypothecate, grant a security interest in, grant options with respect
to, lease or otherwise dispose of all or any part of any interest whatsoever in
or to any or all of the Collateral, or any interest therein.
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(b) Year 2000 Compliant.
You represent, warrant and agree to take all action necessary, including, but
not limited to, due inquiry and due diligence with critical business partners to
assure that there will be no material adverse change to your business by reason
of the advent of the year 2000, including, without limitation, that all
computer-based systems, embedded microchips and other processing capabilities
effectively recognize and process all dates before and after December 31, 1999
("Y2K Compliant"). At our request, you shall provide to us assurance reasonably
acceptable to us that your computer-based systems, embedded microchips and other
processing capabilities are Y2K Compliant.
(c) Risk of Loss.
(i) You have the complete risk of loss or damage to the Collateral. Loss
or damage to the Collateral will not relieve you of your obligation to make the
Payments.
(ii) If any Collateral is lost or damaged, you have two choices although
if you are in default under this Master Agreement, we and not you will have the
two options. The choices are:
(A) Repair or replace the damaged or lost Collateral so that, once
again, the Collateral is in good operating condition and we have a perfected
first priority security interest in it.
(B) Pay us the present value (as of the date of payment) of the
remaining Payments. We will calculate the present value using a discount rate of
five (5%) percent per year. Once you have paid us this amount and any other
amount that you may owe us, we will release our security interest in the damaged
or lost Collateral and you (or your insurer) may keep the Collateral for salvage
purposes, on an "AS IS, WHERE IS" basis and without any representation or
warranty whatsoever.
(d) Insurance.
(i) Until you have made all Payments to us under this Master Agreement,
the Schedules and the Notes and all Obligations have been satisfied in full, you
will keep the Collateral insured. The amount of insurance, the coverage, and the
insurance company must be reasonably acceptable to us.
(ii) If you do not provide us with written evidence of insurance that is
reasonably acceptable to us, we may buy the insurance ourselves, at your
expense. You will promptly pay us the cost of this insurance. We have no
obligation to purchase any insurance. Any insurance that we purchase will be
our insurance, and not yours, and we may insure the Collateral beyond the date
of satisfaction of the Obligations.
(iii) Insurance proceeds may be used to repair or replace damaged or
lost Collateral or to pay us the present value of the Payments, as provided
above.
(iv) You appoint us as your "attorney-in-fact" to make claims under the
insurance policies, to receive payments under the insurance policies, and to
endorse your name on all documents, checks or drafts relating to insurance
claims for Collateral.
(e) Taxes.
(i) You will pay all sales, use, excise, stamp, documentary and ad
valorum taxes, license, recording and registration fees, assessments, fines,
penalties and similar charges imposed on the ownership, possession, use, lease
or rental of the Collateral or on the Loan.
(ii) You will pay all taxes (other than our federal or state net income
taxes) imposed on you or on us regarding the Payments.
(iii) You will reimburse us for any of these taxes that we pay or
advance.
(iv) You will file and pay for any personal property taxes on the
Collateral.
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(f) Information Supplied By You and any Guarantor.
(i) During the Term you will promptly provide us with copies of any
current, quarterly and annual reports and all proxy (or information) statements
you or any guarantor file with the Securities and Exchange Commission ("SEC").
(ii) You and any guarantor will also provide us with the following
financial statements:
(A) Quarterly balance sheet and statements of earnings and cash flow -
within 45 days after the end of your first three fiscal quarters in each fiscal
year. These will be certified by the principal financial officer.
(B) Annual balance sheet and statements of earnings and cash flow - within
90 days after the end of each fiscal year. These will be audited by independent
auditors reasonably acceptable to us (Xxxxxx Xxxxxxxx & Company LLP is
acceptable). Their audit report must be unqualified.
All financial statements will be prepared according to generally accepted
accounting principles, consistently applied. All financial statements and SEC
filings that you or any guarantor provide us will be true and complete when
provided. They will not fail to tell us anything that would make them not
misleading in any material respect.
(iii) At the same time you deliver the financial statements described in
paragraph 5(f)(ii)(A) and cause to deliver the financial statements described in
paragraph 5(f)(ii)(B), you will also provide us with a certificate of your
principal financial officer stating that no default exists, or, if he cannot
certify this because a default does exist, he must specify in reasonable detail
the nature of the default.
(iv) For so long as AxCell Biosciences Corporation is a consolidated
subsidiary of Cytogen Corporation, information requirements within this Section
5(f) shall be satisfied by the provision of consolidated financial information
and filings with respect to Cytogen Corporation.
6. DEFAULTS
(a) Defaults. You are in default if any of the following happens:
(i) You do not pay us, when it is due, any Payment or other payment that
you owe us under this Master Agreement, any Schedule or any Note or that you owe
under any other agreement, loan, lease or other financial arrangement that you
have with us.
(ii) Any of the financial information that you give us is not true and
complete when provided, or you failed to tell us anything that would make the
financial information not misleading, in each case in any material respect.
(iii) You do something you are not permitted to do, or you fail to do
anything that is required of you, under this Master Agreement, any Schedule or
any other lease, loan or other financial arrangement that you have with us, in
each case in any material respect.
(iv) An event of default occurs for any other lease, loan or obligation of
yours (or any guarantor) that exceeds $50,000 in the aggregate.
(v) You or any guarantor file bankruptcy, or involuntary bankruptcy is
filed against you or any guarantor and such involuntary bankruptcy is not
dismissed within sixty (60) days.
(vi) You or any guarantor are subject to any other insolvency proceeding
other than bankruptcy (for example, a receivership action or an assignment for
the benefit of creditors) and such proceeding that is involuntary is not
dismissed within sixty (60) days.
(vii) Without our permission, you sell all or a substantial part of your
assets, merge or consolidate, or a majority of your voting stock or interests is
transferred. However without violating the provisions of this clause, you may
consolidate with or merge with a corporation or
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other entity organized under the laws of one of the states of the United States
or the District of Columbia (the surviving entity, a "successor"), or sell
(except by means of a sale and leaseback arrangement) all or substantially all
of your business and assets to a transferee (the "transferee"), on the condition
that any successor or transferee either expressly or by operation of law assume
in writing all of your obligations pursuant to this Master Agreement, and that
the net tangible assets and the net worth (determined in accordance with
generally accepted accounting principles) of the successor or transferee after
the consolidation, merger or sale shall be at least equal to your net tangible
assets and net worth immediately prior to the consolidation, merger or sale.
(viii) There is a material adverse change in your financial condition,
business or operations, or that of any guarantor.
(b) Remedies, Default Interest, Late Fees.
If you are in default we may exercise one or more of our "remedies." Each
of our remedies is independent. We may exercise any of our remedies, all of our
remedies or none of our remedies. We may exercise them in any order we choose.
Our exercise of any remedy will not prevent us from exercising any other remedy
or be an "election of remedies." If we do not exercise a remedy, or if we delay
in exercising a remedy, this does not mean that we are forgiving your default or
that we are giving up our right to exercise the remedy. Our remedies allow us
to do one or more of the following:
(i) "Accelerate" the Loan balance under any or all Notes. This means that
we may require you to immediately pay us the entire outstanding principal
balance of the entire Loan.
(ii) Require you to immediately pay us all amounts that you are required
to pay us for the entire Term of any other agreements, loans, leases or
financial arrangements that you have with us.
(iii) Xxx you for the entire outstanding principal balance of the Loan and
all other amounts you owe us (including, without limitation, all accrued and
unpaid interest, including interest at the Default Rate), outstanding fees,
costs, expenses and charges, plus all prepayment premiums.
(iv) Require you at your expense to assemble the Collateral at a location
we request in the United States of America.
(v) Exercise any remedy under the Uniform Commercial Code or otherwise
permitted by law including to the extent permitted retaking and removing the
Collateral. If required, we may disconnect and separate the Collateral from
your other property. You will not be entitled to any damages resulting from
removal or repossession of the Collateral. We may use, ship, store, repair or
lease any Collateral that we repossess. We may sell any repossessed Collateral
at private or public sale. You give us permission to show the Collateral to
buyers at your location free of charge during normal business hours. If we do
this, we do not have to remove the Collateral from your location. If we
repossess the Collateral and sell it, we will give you credit for the net sale
price, after subtracting our costs of repossessing and selling the Collateral.
If we rent the Collateral to somebody else, we will give you credit for the net
rent received, after subtracting our costs of repossessing and renting the
Collateral, but the credit will be discounted to present value using a discount
rate equal to the Default Rate. The credit will be applied against what you owe
us under this Master Agreement, the Schedules, the Notes and any other
agreements, loans, leases and other financial arrangements that you have with
us. If the credit exceeds the amount you owe under this Master Agreement, the
Schedule, the Notes and any other agreements, loans, leases or financial
arrangements that you have with us, we will refund the amount of the excess to
you.
(vi) We will have all of our rights and remedies under this Master
Agreement, the Notes, the Schedules and all agreements, instruments and
documents executed in connection herewith and therewith and all of our rights
and remedies under applicable law, whether as a secured party or otherwise.
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(vii) Return conditions:
(A) Following a default, at our request you will return the Collateral,
freight and insurance prepaid by you, to us at a location we request in the
United States of America. It will be returned in good operating condition, as
required by Section 5 above. The Collateral will not be subject to any liens
when it is returned.
(B) You will pack or crate the Collateral for shipping in the original
containers, or comparable ones. You will do this carefully and follow all
recommendations of the Supplier and the Manufacturer as to packing or crating.
(C) You will also return to us the plans, specifications, operating
manuals, software, documentation, discs, warranties and other documents
furnished by the Manufacturer or Supplier. You will also return to us all
service logs and service reports, as well as all written materials that you may
have concerning the maintenance and operation of the Collateral.
(D) At our request, you will provide us with up to 60 days free storage of
the Collateral at your location, and will let us (or our agent) have access to
the Collateral in order to inspect it, display it to others for purchase and
sell it.
(E) You will pay us what it costs us to repair the Collateral if you do
not return it in the required condition.
(viii) You will also pay us the following:
(A) All our expenses of enforcing our remedies. This includes all our
expenses to repossess, store, ship, repair and sell the Collateral.
(B) Our reasonable attorney's fees and expenses.
(C) Default interest on everything you owe us from the date of your
default to the date on which we are paid in full at the Default Rate.
(D) A premium in the amount of five percent (5%) of the outstanding
principal balance of the Loan.
(ix) You will pay us a late fee whenever you pay any amount that you owe
us more than ten (10) days after it is due. You will pay the late fee within one
month after the late Payment was originally due. The late fee will be ten (10%)
percent of the late Payment. If this exceeds the highest legal amount we can
charge you, you will only be required to pay the highest legal amount. The late
fee is intended to reimburse us for our collection costs that are caused by late
Payment. It is charged in addition to all other amounts you are required to pay
us, including Default Interest.
(x) You realize that the damages we could suffer as a result of your
default are very uncertain. This is why we have agreed with you in advance on
the Default Rate to be used in calculating the payments you will owe us if you
default. You agree that, for these reasons, the payments you will owe us if you
default are "agreed" or "liquidated" damages. You understand that these
payments are not "penalties" or "forfeitures."
7. PERFORMING YOUR OBLIGATIONS IF YOU DO NOT
If you do not perform one or more of your obligations under this Master
Agreement or a Schedule or Note, we may perform it for you. We will notify you
in writing at least ten (10) days before we do this. We do not have to perform
any of your obligations for you. If we do choose to perform them, you will pay
us all of our expenses to perform the obligations. You will also reimburse us
for any money that we advance to perform your obligations, together with
interest at the Default Rate on that amount. These will be additional
"Payments" that you will owe us and you will pay them at the same time that your
next Payment is due.
8. INDEMNITY
(a) You will indemnify us, defend us and hold us harmless from and against
any and all
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claims, expenses and attorney's fees concerning or arising from the Collateral,
this Master Agreement, any Schedule or Note, or your breach of any
representation, warranty or covenant. It includes, without limitation, any
claims, losses or charges concerning, arising out of or in connection with the
manufacture, selection, delivery, possession, use, operation or return of the
Collateral and any claims, losses or damages concerning, arising out of or in
connection with this Master Agreement, any Schedule or the Notes.
(b) This obligation of yours to indemnify us continues even after the Term
is over.
9. MISCELLANEOUS
(a) Assignment.
WE MAY ASSIGN OR GRANT A SECURITY INTEREST IN THIS MASTER AGREEMENT, ANY
SCHEDULE, ANY NOTE OR ANY PAYMENTS WITHOUT YOUR PERMISSION. THE PERSON TO WHOM
WE ASSIGN IS CALLED THE "ASSIGNEE." THE ASSIGNEE WILL NOT HAVE ANY OF OUR
OBLIGATIONS UNDER THIS MASTER AGREEMENT. YOU WILL NOT BE ABLE TO RAISE ANY
DEFENSE, COUNTERCLAIM OR OFFSET AGAINST THE ASSIGNEE. NOTWITHSTANDING ANY SUCH
ASSIGNMENT OR GRANTING OF A SECURITY INTEREST, WE WILL CONTINUE TO BE LIABLE FOR
ALL OF OUR OBLIGATIONS UNDER THIS MASTER AGREEMENT.
UNLESS YOU RECEIVE OUR WRITTEN PERMISSION, YOU MAY NOT ASSIGN OR TRANSFER YOUR
RIGHTS UNDER THIS MASTER AGREEMENT OR ANY SCHEDULE. YOU ALSO ARE NOT ALLOWED TO
LEASE OR RENT THE COLLATERAL OR LET ANYBODY ELSE USE IT UNLESS WE GIVE YOU OUR
WRITTEN PERMISSION.
(b) Acceptance By FINOVA, Governing Law, Jurisdiction, Venue, Service of
Process, Waiver of Jury Trial.
THIS MASTER AGREEMENT WILL ONLY BE BINDING WHEN WE HAVE ACCEPTED IT IN WRITING.
THIS MASTER AGREEMENT IS GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW
YORK (NOT INCLUDING THE "CHOICE OF LAW" DOCTRINE). HOWEVER, IF THIS MASTER
AGREEMENT IS UNENFORCEABLE UNDER NEW YORK LAW, IT WILL INSTEAD BE GOVERNED BY
THE LAWS OF THE STATE IN WHICH THE COLLATERAL IS LOCATED.
YOU AND WE MAY ONLY XXX EACH OTHER IN A FEDERAL OR STATE COURT (A) THAT IS
LOCATED IN NEW YORK, (B) LOCATED IN THE STATE WHERE THE COLLATERAL IS LOCATED OR
(C) LOCATED IN THE STATE WHERE THE OTHER PARTY HAS ITS PRINCIPAL PLACE OF
BUSINESS. THIS APPLIES TO ALL LAWSUITS UNDER ALL LEGAL THEORIES, INCLUDING
CONTRACT, TORT AND STRICT LIABILITY. YOU CONSENT TO THE PERSONAL JURISDICTION
OF THESE COURTS. YOU WILL NOT CLAIM THAT THESE COURTS ARE AN "INCONVENIENT
FORUM" OR THAT THEY ARE NOT A PROPER "VENUE."
WE MAY SERVE YOU WITH PROCESS IN A LAWSUIT BY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO YOUR ADDRESS INDICATED AFTER YOUR SIGNATURE BELOW.
YOU AND WE EACH WAIVE ANY RIGHT YOU OR WE MAY HAVE TO A JURY TRIAL IN ANY
LAWSUIT BETWEEN YOU AND US.
(c) Notices. Your address for notices is your address set forth below
your name on the signature page of this Master Agreement. We may give you
written notice in person, by mail, by overnight delivery service, or by fax.
Mail notice will be effective three (3) days after we deposit it with the U.S.
Postal Service. Overnight delivery notice requires a receipt and tracking
number. Fax notice requires a receipt from the
10
sending machine showing that it has been sent to your fax number and received.
Our address for notices is our address set forth below our name on the signature
page of this Master Agreement, with Attention: Director, Contract
Administration. You will also give copies of all notices to us at our principal
place of business at the address set forth in the opening paragraph of this
Master Agreement, with attention to Vice President, Law Department. You may
give us notice the same way that we may give you notice.
(d) General.
This Master Agreement benefits our successors and assigns. This Master
Agreement benefits only those successors and assigns of yours that we have
approved in writing.
This Master Agreement binds your successors and assigns. This Master Agreement
binds only those successors and assigns of ours that clearly assume our
obligations in writing.
TIME IS OF THE ESSENCE OF THIS MASTER AGREEMENT
This Master Agreement, all of the Schedules and the Notes and the Commitment
Letter are together the entire agreement between you and us concerning the
Collateral.
Only an employee of FINOVA who is authorized by corporate resolution or policy
may modify or amend this Master Agreement or any Schedule or Note on our behalf,
and this must be in writing. Only he or she may give up any of our rights, and
this must be in writing. If more than one person is the Borrower under this
Master Agreement, then each of you is jointly and severally liable for your
obligations under this Master Agreement and all Schedules and Notes.
This Master Agreement is only for your benefit and for our benefit, as well as
our successors and assigns. It is not intended to benefit any other person.
If any provision in this Master Agreement is unenforceable, then that provision
must be deleted. Only unenforceable provisions are to be deleted. The rest of
this Master Agreement will remain as written.
We may make press releases and publish a tombstone announcing this transaction
and its total amount. You may publicize this transaction with our prior written
consent or as may be required by law.
BORROWER:
CYTOGEN CORPORATION
000 Xxxxxxx Xxxx Xxxx, XX 5308
Xxxxxxxxx, XX 00000
BY: /s/ Xxxx Xxxxx
PRINTED NAME: X. Xxxxx
TITLE: VP Finance
Taxpayer ID# 00-0000000
FAX NUMBER: 000-000-0000
DATED: February 14, 2000
11
STATE OF New Jersey
COUNTY OF Middlesex
I acknowledge that Xxxx Xxxxx, who stated that he/she is VP Finance &
Administration of the CYTOGEN CORPORATION, signed this Master Loan and Security
Agreement in my presence today: 02/14/00. He/She acknowledged to me that
his/her signature on this Master Loan and Security Agreement was authorized by a
valid resolution or other valid authorization from Borrower's board of directors
or other governing body.
Xxxxxxx Xxxxxxx
----------------------------------
Notary Public
Xxxxxxx Xxxxxxx
Notary Public, State of New Jersey
ID No. 2217405
Qualified in Middlesex County
Commission Expires September 1, 2003
[SEAL]
\
LENDER: BORROWER:
FINOVA CAPITAL CORPORATION AXCELL BIOSCIENCES CORPORATION
00 Xxxxxxxxx Xxxxx 000 Xxxxxxx Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000 Xxxxxxx, XX 00000
BY: /s/ Xxxxx Xxxxxxxxx BY: /s/ Xxxx Xxxxx
PRINTED NAME: Xxxxx Xxxxxxxxx PRINTED NAME: X. Xxxxx
TITLE: Director, Contract Administration TITLE: CFO
FAX NUMBER: (000) 000-0000 Taxpayer ID# 00-0000000
DATE ACCEPTED: February 29, 2000 FAX NUMBER: 000-000-0000
DATED: February 14, 0000
XXXXX XX Xxx Xxxxxx
XXXXXX XX Xxxxxxxxx
I acknowledge that Xxxx Xxxxx, who stated that he/she is CFO of AXCELL
BIOSCIENCES CORPORATION, signed this Master Loan and Security Agreement in my
presence today: 02/14/00. He/She acknowledged to me that his/her signature on
this Master Loan and Security Agreement was authorized by a valid resolution or
other valid authorization from Borrower's board of directors or other governing
body.
Xxxxxxx Xxxxxxx
-----------------------------------
Notary Public
Xxxxxxx Xxxxxxx
Notary Public, State of New Jersey
ID No. 2217405
Qualified in Middlesex County
Commission Expires September 1, 2003
[SEAL]
12
PROMISSORY NOTE NO. 1
$___________ ______________, 2000
CYTOGEN CORPORATION, a Delaware corporation and AXCELL BIOSCIENCES CORPORATION,
a Delaware corporation ("you"), promise to pay to the order of FINOVA CAPITAL
CORPORATION ("we," "us" or "FINOVA") the principal amount of ______
_______________________ Dollars ($_________), together with interest on the
unpaid principal balance at the interest rate per annum and on the dates and as
otherwise provided in the "Master Agreement" and "Schedule" referred to below.
If the interest rate charged would exceed the maximum legal rate, you will only
have to pay the maximum legal rate. You do not have to pay any excess interest
over and above the maximum legal rate of interest. However, if it later becomes
legal for you to pay all or part of any excess interest, you will then pay it to
us upon our request.
You will make all payments in US Dollars at our offices at 00 Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxxx 00000-0000, or to another address that we request in
writing. All payments will be made in immediately available funds.
This Note is executed in connection with a Master Loan and Security Agreement
dated December 30, 1999 (the "Master Agreement"), between you and us. This Note
is one of the Notes referred to in the Master Agreement, is secured as provided
therein, and by all collateral set forth on Exhibit A to the attached Schedule
(the "Schedule"), dated the same date as this Note and made a part hereof, and
is entitled to all of the benefits of the Master Agreement and may be prepaid
only as provided in Exhibit B to the Schedule. All of the terms contained in
the Schedule are incorporated in full herein as if set forth in its entirety.
This Note may be accelerated by us upon a payment default or upon another
default under the Master Agreement or any agreement, instrument or document
executed in connection herewith or therewith.
TIME IS OF THE ESSENCE.
If you do not make a payment within ten (10) days after the date it is due, you
will also pay us a late charge of ten percent (10%) of the amount past due.
Your interest rate will be increased by four percent (4%) per annum, over and
above your regular interest rate if payment is not made at the scheduled or
accelerated maturity of this Note. You will also pay all of our costs of
collection, including our reasonable attorney's fees and expenses. If we
accelerate this Note, you will also owe us a premium, as set forth in Exhibit B
to the Schedule.
You waive diligence, presentment, formalities of demand, protest or notice of
nonpayment or dishonor or any other notice as to this Note.
THIS NOTE IS GOVERNED BY THE SUBSTANTIVE LAWS (AND NOT THE CONFLICT OF LAWS
PROVISIONS) OF THE STATE OF NEW YORK. YOU CONSENT TO THE JURISDICTIONS OF ANY
FEDERAL OR STATE COURT LOCATED IN (A) THE STATE OF NEW YORK, (B) THE STATES IN
WHICH THE COLLATERAL IS LOCATED AND (C) THE STATE WHERE THE OTHER PARTY HAS ITS
PRINCIPAL PLACE OF BUSINESS. YOU WAIVE TRIAL BY JURY.
13
You represent to us that the proceeds of the Loan evidenced by this Note are
being used to finance (or refinance) your purchase of the Collateral described
in the Schedule, and that the Collateral will only be used for business
purposes.
CYTOGEN CORPORATION ATTEST:
By:___________________________________
Name:________________________________
Title:_________________________________
____________________________
[Assistant] Secretary
AXCELL BIOSCIENCES CORPORATION ATTEST:
By:___________________________________
Name:________________________________
Title:_________________________________
_____________________________
[Assistant] Secretary
14
SCHEDULE NO. 1 TO PROMISSORY NOTE NO. 1
AND
MASTER LOAN AND SECURITY AGREEMENT
Schedule No. 1, dated __________, 2000, (this "Schedule") to PROMISSORY NOTE NO.
1 and MASTER LOAN AND SECURITY AGREEMENT dated as of December 30, 1999 (the
"Master Agreement") between CYTOGEN CORPORATION, a Delaware corporation, with
its executive office and principal place of business at 000 Xxxxxxx Xxxx Xxxx,
XX 0000, Xxxxxxxxx, Xxx Xxxxxx 00000 and AXCELL BIOSCIENCES CORPORATION, a
Delaware corporation, with its executive office and principal place of business
at 000 Xxxxxxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, jointly and severally
liable ("you"); and FINOVA CAPITAL CORPORATION, a Delaware corporation, with its
executive office and principal place of business at 0000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000 ("we," "us", or "FINOVA").
1. Obligation to pay. You are presently borrowing ________________________
-----------------
Dollars ($_________) from us. This borrowing is evidenced by your promissory
note dated the same date as this Schedule in the amount of ____________________
Dollars ($_________) (the "Note") to which this Schedule is attached and made a
part thereof.
2. Payments (Subject to adjustment in Section 4). You will repay the Loan,
---------------------------------------------
together with interest at the interest rate described below, in forty-one (41)
consecutive monthly payments of principal and interest as follows: the first
monthly payment of principal and interest, in the amount of $______________,
followed by forty (40) consecutive monthly payments of principal and interest
each in the amount $___________. These payments will be adjusted two (2)
business days prior to the date we make the Loan to you as set forth in Section
4.
The first monthly payment of principal and interest ("First Payment") will be
due on the date that we make the Loan to you. Subsequent payments of principal
and interest are due and payable on the thirtieth (30th) day of each and every
month thereafter through and including the date upon which the last payment is
scheduled to be due (the "Maturity Date"). Any remaining amount that you owe us
is due on the Maturity Date. The First Monthly Payment of principal and
interest (as well as any interim interest referred to below) shall, at our
option, either be withheld from the proceeds of the Loan or paid directly to us
by you.
If the Loan is made on a day other than the thirtieth (30th) or thirty-first
(31st) day of a month, you will also pay to us, together with the First Payment,
interest on the Loan at the interest rate for the period from the date we make
the Loan to you until the twenty-ninth (29th) day of the same month. If the
Loan is made on the thirty-first (31st) day of a month, you will also pay to us,
together with the First Payment, interest on the Loan at the interest rate for
the period from the date we make the Loan to you until the twenty-ninth (29th)
day of the following month. If the Loan is made on the thirtieth (30th) day of
a month, no such interim interest will be due.
3. Transaction Fee. Borrower will pay Lender a transaction fee (the
----------------
"Transaction Fee") on either (a) the thirtieth day of the second month following
the Maturity Date equal to ten (10%) percent of the principal amount of the Loan
or (b) provided that no Event of Default (as defined in
15
the Master Agreement) has occurred, Borrower shall pay thirteen (13) additional
consecutive monthly payments commencing on the thirtieth day of the month
following the Maturity Date of which the first twelve (12) shall be in an amount
equal to 1.50% of the principal amount of the Loan and the thirteenth payment
equal to 2.50% of the principal amount of the Loan. Thirty days prior to the
Maturity Date of the promissory note for the first Loan, Borrower shall give
notice to Lender of the option chosen to pay the Transaction Fee. The option
selected for the first Loan shall be deemed selected for all other Loans.
4. Interest; Indexing. The interest rate in your payments shown above is
------------------
calculated at the rate of 8.65% per annum plus an "Index Rate" of 6.02%. The
Index Rate means the highest yield, as published in The Wall Street Journal of
-----------------------
three-year United States Treasury Notes. The Index Rate of 6.02% was the Index
Rate published in The Wall Street Journal on October 21, 1999. Two-business
-----------------------
days prior to the date we make the Loan to you, we will read The Wall Street
---------------
Journal to determine the final Index Rate. If the Index Rate is not published
-------
in The Wall Street Journal, we will determine it from another reliable source.
-----------------------
We will increase or decrease the payments set forth above in Section 2 to
reflect any increase or decrease in the Index Rate on such date. We will give
you notice of any increase or decrease as soon as we can. You will pay the
increased or decreased payments unless we have made an obvious mistake in our
calculations. Interest is calculated in advance using a 360-day year of twelve
30-day months.
5. Purpose of Loan; Security Interest. You are making this borrowing to
----------------------------------
finance (or refinance) your purchase of the equipment described in the attached
Exhibit A to this Schedule (the "Equipment"). The Equipment, together with all
other property described on the attached Exhibit A is hereinafter referred to as
the "Collateral". The Collateral includes, without limitation, the Equipment
and all replacement parts, additions, accessories and accessions thereto, all
replacements and substitutions thereof and all proceeds of the foregoing,
including, without limitation, insurance proceeds. In order to secure all of
the Obligations (as defined in the Master Agreement), you grant us a first lien
on and security interest in the Collateral, as well as any additions, omissions,
substitutions and proceeds of the Collateral, including, without limitation,
insurance proceeds. You also grant us a security interest in any leases and
rentals of the Collateral. This security interest secures the Note. It also
secures the full and timely payment and performance of all of your other
Obligations to us, whether under the Master Agreement, any other agreement, loan
or lease that you may have with us, or otherwise.
6. Collateral Acceptance Date. The Equipment shall be delivered, installed and
--------------------------
accepted no later than November 30, 2000.
16
7. Terms of Master Agreement. The terms of the Master Agreement are made a
-------------------------
part of this Schedule as if repeated in its entirety in this Schedule. Any
declaration of default under the Master Agreement is a default under this
Schedule and permits us to exercise all remedies provided by the Master
Agreement.
CYTOGEN CORPORATION ATTEST:
By:__________________________________
Name:________________________________
Title:_______________________________
Date:________________________________ _____________________________
[Assistant] Secretary
AXCELL BIOSCIENCES CORPORATION ATTEST:
By:__________________________________
Name:________________________________
Title:_______________________________
Date:________________________________ _____________________________
[Assistant] Secretary
17
EXHIBIT A TO SCHEDULE NO. 1
Collateral
----------
All of the following property, in each case, whether now existing or hereafter
arising, now owned or hereafter acquired, wherever located:
(a) all of the following laboratory equipment, computer servers, computer
equipment, peripherals, office furniture and general office equipment and other
assets ("Equipment"):
(b) all accessions and additions thereto, substitutions for, and all
replacements of, any and all of the foregoing, and all proceeds of the
foregoing, cash and non-cash, including insurance proceeds.
18
EXHIBIT B TO SCHEDULE NO. 1
Prepayment
You may not prepay the Advance evidenced by the Note, in whole or in part, prior
to the date that you make the twenty-fourth (24) timely consecutive monthly
Payment. You shall have the right, upon not less than thirty (30) days prior
written notice to us, on any regularly scheduled Payment date occurring after
the twenty-fourth (24) regularly scheduled Payment date, to prepay the Advance
in whole, but not in part, provided that you shall pay to us, (i) the remaining
monthly Payments discounted at a rate of six (6%) percent, (ii) option "a" of
the Transaction Fee discounted at a rate of six (6%) percent, (iii) all accrued
and unpaid interest on the amount prepaid through the date of prepayment, and
(iv) all outstanding fees, charges and other amounts then due under the Master
Agreement, Schedule, Note and all of the other agreements, instruments and
documents executed in connection herewith.
Once you give us a notice of prepayment, that notice is final and irrevocable.
If we accelerate the Loan following a default the premium due upon acceleration
will be five (5%) percent of the outstanding principal balance.
If you prepay the Advance under the Note, you must prepay all other Advances
under the Loan and Master Agreement and all Notes, and pay to us the applicable
premiums due under those Notes as well as all other costs, fees, charges and
other amounts due under the Master Agreement, the Notes, the Schedules and all
other agreements, instruments and documents.
19
