EXHIBIT 10.1
*Certain confidential information contained in this document, marked by
brackets, has been omitted and filed with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement") is entered into as of March 2,
2004, by and between CORIXA CORPORATION, a Delaware corporation, and its
permitted successors and assigns (collectively, "Borrower" or "QALICB"), and NDC
NEW MARKETS INVESTMENTS IV, L.P., a Delaware limited partnership, and its
successors and assigns (collectively, "Lender").
RECITALS
WHEREAS, Borrower has requested Lender to fund a loan to Borrower as
further described below, and Lender has agreed to fund the Loan (as defined
below) to Borrower on the terms and conditions contained herein. The proceeds of
the Loan shall be used by Borrower to assist in the financing of certain tenant
improvements and the acquisition of certain equipment at that certain research
and development facility (and as further described in Exhibit A attached hereto,
the "Facility"), which Facility is operated by Borrower and located within a
Low-Income Community eligible for New Markets Tax Credit under Section 45D of
the Internal Revenue Code of 1986, as amended (the "Code"). The Loan hereunder
shall be evidenced by the Loan Note, and be secured by the Security Agreement
(Securities Account), as further described herein; and
WHEREAS, Lender has been certified as a Community Development Entity
("CDE") by the Community Development Financial Institution Fund (the "CDFI
Fund") and the parties hereto acknowledge the Loan shall be treated by Lender as
a Qualified Low-Income Community Investment to Borrower as a result of
Borrower's status as a Qualified Active Low-Income Community Business ("QALICB")
as of the date of the Agreement, and its covenant hereunder to maintain its
QALICB status during the term of the Loan.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Lender and Borrower hereby agree as follows:
Defined terms used herein and not otherwise defined shall have the
meanings given to them in Exhibit A attached hereto, the terms of which are
incorporated in their entirety by this reference.
ARTICLE I
LOAN TERMS
SECTION 0.0.XXXX.
(a) Loan. Subject to the terms and conditions of this Agreement, Lender
hereby agrees to make a loan to Borrower in the principal amount of Fourteen
Million Five Hundred Fifty Thousand Dollars ($14,550,000) (the "Loan"), the
proceeds of which shall be used to finance certain tenant improvements and the
acquisition of equipment to be located at the Facility. Borrower's obligation to
repay the Loan shall be evidenced by a promissory note of even date herewith
(the "Loan Note"), all terms of which are incorporated herein by this reference.
(b) Repayment. The outstanding principal balance of the Loan shall be due
and payable in full on March 1, 2011.
(c) Prepayment. Borrower is prohibited from an early prepayment of the
Loan.
SECTION 1.2.INTEREST/FEES.
(a) Interest. The outstanding principal balance of the Loan shall bear
interest
-1-
at the rate of interest set forth in the Loan Note.
(b) Computation and Payment. Interest shall be computed on the basis of a
360-day year, actual days elapsed. Interest shall be payable at the times and
place set forth in the Loan Note.
SECTION 1.3.COLLECTION OF PAYMENTS. Borrower shall pay all interest and
principal payments, as applicable to Lender at its office at c/o HEDC New
Markets, Inc., 00 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, or at
such other place as the holder hereof may designate, in lawful money of the
United States of America and in immediately available funds.
SECTION 1.4.COLLATERAL. As security for all indebtedness of Borrower to
Lender subject hereto, Borrower shall execute a Security Agreement (Securities
Account) pursuant to which Borrower grants to Lender a security interest of
first priority in (a) Borrower's account no. 213128 (whether held in Borrower's
name or as a Lender collateral account for the benefit of Borrower), any
sub-account thereunder or consolidated therewith, and all replacements or
substitutions therefor, including any account resulting from a renumbering or
other administrative re-identification thereof (collectively, the "Securities
Account") maintained with Xxxxx Fargo Bank, N.A. (the "Intermediary"), (b) all
financial assets credited to the Securities Account, (c) all security
entitlements with respect to the financial assets credited to the Securities
Account, and (d) any and all other investment property or assets maintained or
recorded in the Securities Account (with all the foregoing defined as
"Collateral"), together with whatever is receivable or received when any of the
Collateral or proceeds thereof are sold, collected, exchanged or otherwise
disposed of, whether such disposition is voluntary or involuntary, including
without limitation, (i) all rights to payment, including returned premiums, with
respect to any insurance relating to any of the foregoing, (ii) all rights to
payment with respect to any claim or cause of action affecting or relating to
any of the foregoing, and (iii) all stock rights, rights to subscribe, stock
splits, liquidating dividends, cash dividends, dividends paid in stock, new
securities or other property of any kind which Borrower is or may hereafter be
entitled to receive on account of any securities pledged hereunder, including
without limitation, stock received by Borrower due to stock splits or dividends
paid in stock or sums paid upon or in respect of any securities pledged
hereunder upon the liquidation or dissolution of the issuer thereof (hereinafter
called "Proceeds"). As used herein, the terms "security entitlement," "financial
asset" and "investment property" shall have the respective meanings set forth in
the Washington Uniform Commercial Code.
The Securities Account shall at all times be at properly margined rates
based on the type of securities which make up the Collateral in a minimum value
of $14,550,000, and as further set forth in the Security Agreement (Securities
Account) of even date herewith; provided that the minimum value of the
Collateral may be reduced if the principal amount of the Loan is reduced in
accordance with Section 1.5 of this Agreement. Any reduction in the minimum
value of the Collateral shall be made in an increment to correspond to a
reduction in the principal value of the Loan. At no time during the term of the
Loan shall the principal amount of the Loan exceed the required minimum market
value of the Collateral.
SECTION 1.5.FORGIVENESS OF DEBT. A portion of the Loan obligation of
Borrower hereunder shall be forgiven by Lender upon its determination of
Borrower's satisfaction of the conditions set forth below. Any and all
forgiveness of Loan principal hereunder shall be in the amounts and times as set
forth below. Lender shall determine Borrower's satisfaction of the following
forgiveness conditions in its sole and absolute discretion.
(A) Conditions Precedent to Loan Forgiveness. The following conditions,
unless otherwise waived by Lender, shall be satisfied by Borrower on each
Forgiveness Date (as defined below) in order for the then applicable Forgiveness
Amount (as defined below) to be effective:
(i) No Event of Default and no condition, event or act which with
the giving of notice or the passage of time or both would
constitute such an Event of Default under this Agreement,
shall have occurred and be continuing or shall exist;
(ii) The representations and warranties contained in Sections 2.1
through 2.14, 2.19 and 2.20 herein shall be true on and as of
each Forgiveness Date; and
-2-
(iii) Lender shall have received and allocated New Markets Tax
Credits equal to the Projected New Market Tax Credits to its
partner(s) in the taxable year of each Forgiveness Date.
B. Forgiveness Dates and Amounts. Upon Lender's determination and
satisfaction by Borrower of the conditions set forth in Section 1.5(A) above on
[*] (each, a "Forgiveness Date"), the applicable principal amount of the Loan
indicated as the "Forgiveness Amount" below shall be forgiven by Lender. Lender
shall, in its reasonable discretion, determine the satisfaction of the
conditions in Section 1.5(A) by Borrower on each Forgiveness Date, and the
applicable Forgiveness Amount shall be separately considered and not be
cumulative.
FORGIVENESS DATE FORGIVENESS AMOUNT
[*] $[*]
[*] $[*]
[*] $[*]
[*] $[*]
C. Evidence of Forgiveness. In the event Borrower satisfies the conditions
to Loan forgiveness on each Forgiveness Date, Borrower and Lender shall execute
an amendment or an allonge to the Loan Note evidencing the new outstanding
principal balance of the Loan.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Borrower makes the following representations and warranties to Lender,
which representations and warranties shall survive the execution of this
Agreement and shall continue in full force and effect until the full and final
payment, and satisfaction and discharge, of all obligations of Borrower to
Lender subject to this Agreement.
SECTION 0.0.XXXXX STATUS. Borrower is a corporation, organized and
existing and in good standing under the laws of the State of Delaware, and is
qualified or licensed to do business (and is in good standing as a foreign
corporation, if applicable) in all jurisdictions in which such qualification or
licensing is required or in which the failure to so qualify or to be so licensed
could have a material adverse effect on Borrower. Borrower has represented, and
Lender does hereby approve, the reincorporation of Borrower as a corporation
under the laws of the State of Washington upon satisfaction of the following
conditions: (a) notice of the intended reincorporation; (b) receipt, review and
approval of an assignment and assumption agreement whereby the new legal entity
assumes all of the obligations of Borrower under the Loan Documents, as
determined in the discretion of Borrower; and (c) if requested by Lender, an
opinion of counsel to Borrower, as reincorporated, as to the continuing
enforceability of the Loan Document obligations.
SECTION 2.2.AUTHORIZATION AND VALIDITY. This Agreement and each promissory
note, contract, instrument and other document required hereby or at any time
hereafter delivered to Lender in connection herewith (collectively, the "Loan
Documents") have been duly authorized, and upon their execution and delivery in
accordance with the provisions hereof will constitute legal, valid and binding
agreements and obligations of Borrower or the party which executes the same,
enforceable in accordance with their respective terms.
SECTION 0.0.XX VIOLATION. The execution, delivery and performance by
Borrower of each of the Loan Documents do not, to the best of Borrower's
knowledge, violate any provision of any law or regulation, and do not contravene
any provision of the Articles of Incorporation or By-Laws of Borrower, or result
in any
--------------
* Confidential Treatment Requested
-3-
breach of or default under any contract, obligation, indenture or other
instrument to which Borrower is a party or by which Borrower may be bound.
SECTION 2.4.LITIGATION. There are no pending, or to the best of Borrower's
knowledge threatened, actions, claims, investigations, suits or proceedings by
or before any governmental authority, arbitrator, court or administrative agency
which could have a material adverse effect on the financial condition or
operation of Borrower other than those disclosed by Borrower in its public
filings with the Securities and Exchange Commission.
SECTION 2.5.CORRECTNESS OF FINANCIAL STATEMENT. The financial statement of
Borrower which has been delivered by Borrower to Lender prior to the date
hereof, (a) is complete and correct and presents fairly the financial condition
of Borrower, (b) discloses all liabilities of Borrower that are required to be
reflected or reserved against under generally accepted accounting principles,
whether liquidated or unliquidated, fixed or contingent, and (c) has been
prepared in accordance with generally accepted accounting principles
consistently applied. Since the date of such financial statement there has been
no material adverse change in the financial condition of Borrower.
SECTION 2.6.INCOME TAX RETURNS. Borrower has no knowledge of any pending
assessments or adjustments of its income tax payable with respect to any year.
SECTION 0.0.XX SUBORDINATION. There is no agreement, indenture, contract
or instrument to which Borrower is a party or by which Borrower may be bound
that requires the subordination in right of payment of any of Borrower's
obligations subject to this Agreement to any other obligation of Borrower.
SECTION 2.8.PERMITS, FRANCHISES. Borrower possesses, and will hereafter
possess, all material permits, consents, approvals, franchises and licenses
required and rights to all trademarks, trade names, patents, and fictitious
names, if any, necessary to enable it to conduct the business in which it is now
engaged in compliance with applicable law.
SECTION 2.9.ERISA. Borrower is in compliance in all material respects with
all applicable provisions of the Employee Retirement Income Security Act of
1974, as amended or recodified from time to time ("ERISA"); Borrower has not
violated any provision of any defined employee pension benefit plan (as defined
in ERISA) maintained or contributed to by Borrower (each, a "Plan"); no
Reportable Event as defined in ERISA has occurred and is continuing with respect
to any Plan initiated by Borrower; Borrower has met its minimum funding
requirements under ERISA with respect to each Plan; and each Plan will be able
to fulfill its benefit obligations as they come due in accordance with the Plan
documents and under generally accepted accounting principles.
SECTION 2.10. OTHER OBLIGATIONS. Borrower is not in default on any
material obligation for borrowed money, any purchase money obligation or any
other material lease, commitment, contract, instrument or obligation.
SECTION 2.11. ENVIRONMENTAL MATTERS. Except as disclosed by Borrower to
Lender in its public filings with the Securities and Exchange Commission,
Borrower is in compliance in all material respects with all applicable federal
or state environmental, hazardous waste, health and safety statutes, and any
rules or regulations adopted pursuant thereto, which govern or affect any of
Borrower's operations and/or properties, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
the Superfund Amendments and Reauthorization Act of 1986, the Federal Resource
Conservation and Recovery Act of 1976, and the Federal Toxic Substances Control
Act, as any of the same may be amended, modified or supplemented from time to
time. None of the operations of Borrower is the subject of any federal or state
investigation evaluating whether any remedial action involving a material
expenditure is needed to respond to a release of any toxic or hazardous waste or
substance into the environment. Borrower has no material contingent liability in
connection with any release of any toxic or hazardous waste or substance into
the environment.
SECTION 2.12. QUALIFIED AND PROHIBITED BUSINESS ACTIVITIES. Borrower
represents to Lender that it is engaged in the biotechnology and
biopharmaceuticals industry. Borrower further represents to Lender that is does
not engage in any of the following businesses or activities:
-4-
1. The leasing of unimproved real property (as defined in
Code Section 45D(d)(3)(A)) or residential rental
property (as defined in Code Section 169(e)(2)(A));
2. any trade or business consisting predominately of the
development or holding of intangibles for sale or
license;
3. any trade or business consisting of the operation of a
golf course, country club, massage parlor, hot tub or
suntan facility, racetrack or other gambling facility or
any store the principal purpose of which is the sale of
alcoholic beverages for consumption off premises; or
4. any trade or business the principal activity of which is
farming (as defined in Code Section
2032A(e)(5)(A)or(B)).
SECTION 2.13 ACTIVE BORROWER AND PROJECTIONS Borrower is active in the
biotechnology and biopharmaceuticals industry. As of the date hereof, Borrower
has generated gross income from its business or operations and represents to
Lender it will continue to do so during the term of the Loan. Borrower has
provided Lender with revenue projections for a seven year period from the date
of this Loan (hereafter, the "Projections"), pursuant to which Borrower
represents certain forecasts of income and expenses, and includes projected
results of the financial operation of Borrower, all in reasonable detail, and
for the period simultaneous with the term of the Loan. The Projections shall be
updated by Borrower annually and provided to Lender in accordance with Section
4.3 hereof.
SECTION 2.14BORROWER NOT CONTROLLED BY LENDER. Borrower represents that
Lender does not control the business or operations of Borrower through either
management or voting rights, nor does Lender maintain an ownership interest in
Borrower which exceeds thirty-three percent (33%) of its total ownership.
SECTION 2.15GROSS-INCOME OF BORROWER. More than fifty percent (50%) of the
total gross income of Borrower is derived from the active conduct and operation
of its business at the Facility.
SECTION 2.16. TANGIBLE PROPERTY OF BORROWER. More than forty percent (40%)
of the use of tangible property owned or leased by Borrower is located and
operated at the Facility.
SECTION 2.17. BORROWER'S EMPLOYEE SERVICES. More than forty percent (40%)
of the services performed by the employees of Borrower are performed at the
Facility. In determining the forty percent (40%), the numerator shall be the
total amount paid by Borrower for employee services performed or will be
performed at the Facility during a taxable year, and the denominator shall be
the total amount paid by Borrower for employee services during a taxable year.
The foregoing calculation shall not include any consultants or independent
contractors engaged by Borrower. Borrower represents it has provided Lender with
evidence of Borrower's satisfaction of the forty percent employee service
requirement as of the date hereof.
SECTION 2.18 FACILITY LOCATED IN LOW-INCOME COMMUNITY. The Facility is
located at 0000 Xxxxx Xxxxxx, Ninth and Xxxxxxx Lifesciences Building in
Seattle, Washington and is wholly located within a Low-Income Community.
SECTION 2.19 TERM OF FACILITY LEASE. The term of the Lease for the
Facility is for a period of time in excess of the term of the Loan under this
Agreement. The copy of the Lease provided to Lender in connection with this
transaction is a full and correct copy, and there have been no amendments
thereto as of the date hereof.
SECTION 2.20. SOLVENT. Borrower (both before and after giving effect to
the obligations contemplated hereby) is solvent, has assets having a fair value
in excess of the amount required to pay its probable liabilities on its existing
debts, other than convertible debt,
-5-
as they become absolute and matured, and has, and reasonably believes it will
have, access to adequate capital for the conduct of its business and the ability
to pay its debts from time to time incurred in connection therewith as such
debts mature.
SECTION 2.21. INVESTMENT COMPANY ACT. Borrower is not, and is not directly
or indirectly controlled by, or acting on behalf of, any person which is, an
"Investment Company" within the meaning of the Investment Company Act of 1940,
as amended.
ARTICLE III
CONDITIONS PRECEDENT TO FUNDING LOAN
SECTION 3.1.CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of
Lender to fund the Loan contemplated by this Agreement is subject to the
fulfillment to Lender's satisfaction of all of the following conditions:
(a) Approval of Lender Counsel. All legal matters incidental to the
extension of credit by Lender shall be satisfactory to Lender's counsel.
(b) Documentation. Lender shall have received, in form and substance
satisfactory to Lender, each of the following, duly executed:
(i) This Agreement.
(ii) Loan Note.
(iii) Security Agreement (Securities Account).
(iv) NMTC Compliance Certificate.
(iv) UCC-1 Financing Statements.
(v) Due Diligence items listed in Exhibit B attached hereto.
(vi) Satisfactory opinion of counsel to Borrower.
(vii) Such other documents as Lender may require.
(c) Financial Condition. There shall have been no material adverse change,
as determined by Lender, in the financial condition or business of Borrower, nor
any material decline, as determined by Lender, in the market value of any
collateral required hereunder or a substantial or material portion of the assets
of Borrower.
(d) Interest Reserve. Upon funding of the Loan, Borrower shall fund and
maintain an operating reserve fund in the amount of $75,000 to be held in a
demand deposit account at a Xxxxx Fargo banking store, which funds shall be
pledged to the benefit of Lender.
SECTION 3.2.CONTINUING COMPLIANCE. The representations and warranties
contained in Sections 2.1 through 2.14, 2.19 and 2.20 of this Agreement and in
each of the other Loan Documents shall be true on and as of the date of the
signing of this Agreement and on each annual anniversary hereof, with the same
effect as though such representations and warranties had been made on and as of
each such date, and on each such date, no Event of Default as defined herein,
and no condition, event or act which with the giving of notice or the passage of
time or both would constitute such an Event of Default, shall have occurred and
be continuing or shall exist.
ARTICLE IV
AFFIRMATIVE COVENANTS
Borrower covenants that so long as the Loan Documents remain outstanding,
and until payment in full of all obligations of Borrower subject hereto,
Borrower shall, unless Lender otherwise consents in writing:
-6-
SECTION 4.1.PUNCTUAL PAYMENTS. Punctually pay all principal, interest,
fees or other liabilities due under any of the Loan Documents at the times and
place and in the manner specified therein.
SECTION 4.2.ACCOUNTING RECORDS. Maintain adequate books and records in
accordance with generally accepted accounting principles consistently applied,
and permit any representative of Lender, during business hours, at Lender's
expense and with reasonable notice, at any reasonable time, to inspect, audit
and examine such books and records, to make copies of the same, and to inspect
the properties of Borrower.
SECTION 0.0.XXXXXXXXX STATEMENTS. Provide to Lender all of the following,
in form and detail satisfactory to Lender:
(a) Within one hundred twenty (120) days after the close of each
fiscal year, financial statements of Borrower, including a balance sheet,
statement of income and expenses and statement of cash flows that include
the results of the financial operation of the Project, all in reasonable
detail and prepared according to GAAP. Statements shall be audited by an
independent certified public accountant.
(b) Borrower shall deliver to Lender quarterly financial statements
of Borrower certified as being true and correct by an authorized officer
of Borrower within forty-five (45) days of the end of each calendar
quarter of Borrower's fiscal year.
(c) Within thirty (30) days after each anniversary of the date of
this Agreement, Borrower shall provide Lender with updated Projections (as
defined in Section 2.13 of this Agreement) acceptable to Lender.
(d) When requested by Lender, such further information as Lender may
reasonably request relating to any such financial statements or liquidity
covenants.
SECTION 4.4.COMPLIANCE. Preserve and maintain all material licenses,
permits, governmental approvals, rights, privileges and franchises necessary for
the conduct of its business; and comply with the provisions of all documents
pursuant to which Borrower is organized and/or which govern Borrower's continued
existence and with the material requirements of all laws, rules, regulations and
orders of any governmental authority applicable to Borrower and/or its business.
SECTION 0.0.XXXXXXXXX. Maintain and keep in force insurance of the types
and in amounts customarily carried in lines of business similar to that of
Borrower, including but not limited to fire, extended coverage, public
liability, flood, property damage and workers' compensation, with all such
insurance carried with companies and in amounts satisfactory to Lender, and
deliver to Lender from time to time at Lender's request schedules setting forth
all insurance then in effect.
SECTION 4.6.FACILITIES. Keep all properties useful or necessary to
Borrower's business in good repair and condition, and from time to time make
necessary repairs, renewals and replacements thereto so that such properties
shall be fully and efficiently preserved and maintained.
SECTION 4.7.TAXES AND OTHER LIABILITIES. Pay and discharge when due any
and all indebtedness, obligations, assessments and taxes, both real or personal,
including without limitation federal and state income taxes and state and local
property taxes and assessments, except such (a) as Borrower may in good faith
-7-
contest or as to which a bona fide dispute may arise, and (b) for which Borrower
has made provision, to Lender's satisfaction, for eventual payment thereof in
the event Borrower is obligated to make such payment.
SECTION 4.8.LITIGATION. Promptly give notice in writing to Lender of any
litigation pending or threatened against Borrower which is disclosed in its
public filings with the Securities and Exchange Commission.
SECTION 4.9 INTEREST RATE PROTECTION. On or prior to the first (1st)
anniversary of the date of this Agreement, Borrower shall obtain and maintain
interest rate protection in the form of an interest rate swap contract (the
"Swap Contract"). The counterparty under the Swap Contract shall be a financial
institution acceptable to Lender, which Swap Contract shall evidence Borrower's
interest rate exposure on the Loan to be limited as follows: a minimum of fifty
percent (50%) of Borrower's Loan payment obligation hereunder shall be set to a
fixed rate of interest acceptable to Lender. Alternatively, Borrower may provide
the following in lieu of the Swap Contract as acceptable interest rate
protection under this Section: (i) an interest rate cap agreement in a form
acceptable to Lender with a strike rate of four percent (4.0%) above the then
applicable rate of interest hereunder; or (ii) marketable securities may be
pledged as additional collateral in an amount to support a debt service reserve
fund obligation as determined by Lender. The determination of Lender as to
appropriate interest rate protection hereunder shall be made by Lender in its
sole and absolute discretion.
SECTION 4.10. FINANCIAL CONDITION. Maintain Borrower's financial condition
as follows using generally accepted accounting principles consistently applied
and used consistently with prior practices (except to the extent modified by the
definitions herein), with compliance determined commencing with Borrower's
financial statements and Projections on each anniversary of the date of the Loan
and until the Loan is no longer outstanding:
(a) Throughout the Term of the Loan, Borrower shall maintain unrestricted
liquidity, in cash or cash equivalents (including, but not limited to,
marketable securities) in an amount equal to the greater of (i) [*], and
(ii) [*] Actual Cash Burn (as defined below). The cash burn rate subject
to this provision shall be determined by Lender annually based upon the
information provided in the audited financial statements of Borrower's
preceding fiscal year, commencing with the audited financial statements
for fiscal year ending December 31, 2003. For purposes of this Agreement,
"Actual Cash Burn" shall mean [*].
(b) [Reserved]
SECTION 4.11. NOTICE TO LENDER. Promptly (but in no event more than five
(5) days after the occurrence of each such event or matter) give written notice
to Lender in reasonable detail of: (a) the occurrence of any Event of Default,
or any condition, event or act which with the giving of notice or the passage of
time or both would constitute an Event of Default; (b) any change in the name or
the organizational structure of Borrower; (c) the occurrence and nature of any
Reportable Event or Prohibited Transaction, each as defined in ERISA, or any
funding deficiency with respect to any Plan; or (d) any termination or
cancellation of any insurance policy which Borrower is required to maintain, or
any uninsured or partially uninsured loss through liability or property damage,
or through fire, theft or any other cause affecting Borrower's property in
excess of an aggregate of $750,000.
ARTICLE V
NEGATIVE COVENANTS
Borrower further covenants that so long as Loan or any liabilities
(whether direct or contingent, liquidated or unliquidated) of Borrower to Lender
under any of the Loan Documents remain outstanding, and until payment in full of
all obligations of Borrower subject hereto, Borrower will not without Lender's
prior written consent:
----------------
* Confidential Treatment Requested
-8-
SECTION 5.1.USE OF FUNDS. Use any of the proceeds of any credit extended
hereunder except for the purposes stated in Article I hereof.
SECTION 5.2.OTHER INDEBTEDNESS. Without the prior written consent of
Lender, create, incur, assume or permit to exist any indebtedness or liabilities
resulting from borrowings, loans or advances, whether secured or unsecured,
matured or unmatured, liquidated or unliquidated, joint or several, except (a)
the liabilities of Borrower to Lender, and (b) any other liabilities of Borrower
existing as of, and disclosed to Lender prior to, the date hereof. Borrower
shall be subject to this Section 5.2 only upon the occurrence of a default or
non-performance by Borrower of any obligation or covenant hereunder.
SECTION 5.3.MERGER, CONSOLIDATION, TRANSFER OF ASSETS. Without the prior
written consent of Lender: (i) merge into or consolidate with any other entity,
other than any transaction (a) involving a merger or consolidation that does not
result in any reclassification, conversion, exchange or cancellation of
outstanding shares of our capital stock; and pursuant to which the holders of
50% or more of the total voting power of all shares of our capital stock
entitled to vote generally in elections of directors immediately prior to such
transaction have the entitlement to exercise, directly or indirectly, 50% or
more of the total voting power of all shares of capital stock entitled to vote
generally in the election of directors of the continuing or surviving
corporation, or (b) effected solely to change our jurisdiction of incorporation
and results in a reclassification, conversion or exchange of outstanding shares
of our common stock into solely shares of common stock; (ii) make any
substantial change in the nature of Borrower's business as conducted as of the
date hereof; or (iii) sell, lease, transfer or otherwise dispose of all or a
substantial or material portion of Borrower's assets except in the ordinary
course of its business.
SECTION 5.4.PLEDGE OF ASSETS. Without the prior written consent of Lender,
mortgage, pledge, grant or permit to exist a security interest in, or lien upon,
all or any portion of the Collateral for the Loan.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1.The occurrence of any of the following shall constitute an
"Event of Default" under this Agreement:
(a) Borrower shall fail to pay when due any principal, interest, fees or
other amounts payable under any of the Loan Documents.
(b) Any financial statement or certificate furnished to Lender in
connection with, or any representation or warranty made by Borrower or any other
party under this Agreement or any other Loan Document shall prove to be
incorrect, false or misleading in any material respect when furnished or made.
(c) Any default in the performance of or compliance with any obligation,
agreement or other provision contained herein or in any other Loan Document
(other than those referred to in subsections (a) and (b) above), and with
respect to any such default which by its nature can be cured, such default shall
continue for a period of twenty (20) days from its occurrence.
(d) Any default in the payment of any obligation under the terms of any
contract or instrument (other than any of the Loan Documents) pursuant to which
Borrower, and if applicable, any guarantor hereunder or any general partner or
joint venturer in any Borrower which is a partnership or joint venture (with
each such guarantor, general partner and/or joint venturer referred to herein as
a "Third Party Obligor") has incurred any debt or other financial obligation in
an amount equal to or greater than $[*] to any person or entity, including, but
not limited to, Xxxxx Fargo Bank, N.A., and any affiliates thereof, or General
Electric Capital Corporation. For purposes of this Section
--------------
* Confidential Treatment Requested
-9-
6.1(d), Borrower shall not be considered to be in default in the payment of any
obligation unless Borrower has received a notice of default from such entity or
person due the obligation, any cure periods have lapsed, and such entity or
person is pursuing its remedies.
(e) The service of a notice of levy and/or of a writ of attachment or
execution, or other like process, against the Collateral granted under this
Agreement to secure the Loan of Borrower.
(f) Borrower or any Third Party Obligor shall become insolvent, or shall
suffer or consent to or apply for the appointment of a receiver, trustee,
custodian or liquidator of itself or any of its property, or shall generally
fail to pay its debts as they become due, or shall make a general assignment for
the benefit of creditors; Borrower or any Third Party Obligor shall file a
voluntary petition in bankruptcy, or seeking reorganization, in order to effect
a plan or other arrangement with creditors or any other relief under the
Bankruptcy Reform Act, Title 11 of the United States Code, as amended or
recodified from time to time ("Bankruptcy Code"), or under any state or federal
law granting relief to debtors, whether now or hereafter in effect; or any
involuntary petition or proceeding pursuant to the Bankruptcy Code or any other
applicable state or federal law relating to bankruptcy, reorganization or other
relief for debtors is filed or commenced against Borrower or any Third Party
Obligor, or Borrower or any Third Party Obligor shall file an answer admitting
the jurisdiction of the court and the material allegations of any involuntary
petition; or Borrower or any Third Party Obligor shall be adjudicated a
bankrupt, or an order for relief shall be entered against Borrower or any Third
Party Obligor by any court of competent jurisdiction under the Bankruptcy Code
or any other applicable state or federal law relating to bankruptcy,
reorganization or other relief for debtors.
(g) Borrower shall be a party to any federal or state lawsuit,
arbitration, mediation, administrative proceeding (including patent prosecutions
and administrative proceedings before the Board of Patents) or other form of
legal proceeding involving one or more claims which, if decided against
Borrower, Lender in good faith, and after due inquiry of Borrower and its
counsel, believes materially impairs or is substantially likely to materially
impair the prospect of payment or performance by Borrower of its obligations
under any of the Loan Documents.
SECTION 6.2.REMEDIES. Upon the occurrence of any Event of Default: (a) all
indebtedness of Borrower under each of the Loan Documents, any term thereof to
the contrary notwithstanding, shall at Lender's option and without notice become
immediately due and payable without presentment, demand, protest or notice of
dishonor, all of which are hereby expressly waived by each Borrower; (b) the
obligation, if any, of Lender to extend any further credit under any of the Loan
Documents shall immediately cease and terminate; and (c) Lender shall have all
rights, powers and remedies available under each of the Loan Documents, or
accorded by law, including without limitation the right to resort to any or all
security for any credit subject hereto and to exercise any or all of the rights
of a beneficiary or secured party pursuant to applicable law. All rights, powers
and remedies of Lender may be exercised at any time by Lender and from time to
time after the occurrence of an Event of Default, are cumulative and not
exclusive, and shall be in addition to any other rights, powers or remedies
provided by law or equity.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. NO WAIVER. No delay, failure or discontinuance of Lender in
exercising any right, power or remedy under any of the Loan Documents shall
affect or operate as a waiver of such right, power or remedy; nor shall any
single or partial exercise of any such right, power or remedy preclude, waive or
otherwise affect any other or further exercise thereof or the exercise of any
other right, power or remedy. Any waiver, permit, consent or approval of any
kind by Lender of any breach of or default under any of the Loan Documents must
be in writing and shall be effective only to the extent set forth in such
writing.
SECTION 7.2.NOTICES. All notices, requests and demands which any party is
required or may desire to give to any other party under any provision of this
Agreement must be in writing delivered to each party at the following address:
-10-
BORROWER: CORIXA CORPORATION
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
LENDER: NDC NEW MARKETS INVESTMENTS IV, L.P.
c/o HEDC New Markets, Inc.
00 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, Chairman
With a copy to:
Xxxxx Fargo Community Development Corporation
000 X. Xxxxxx, Xxxxx 000X
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxxxxxxx
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three (3) days after deposit in
the U.S. mail, first class and postage prepaid; and (c) if sent by telecopy,
upon receipt.
SECTION 7.3.COSTS, EXPENSES AND ATTORNEYS' FEES. Borrower shall pay to
Lender immediately upon demand the full amount of all payments, advances,
charges, costs and expenses, including reasonable attorneys' fees (to include
outside counsel fees and all allocated costs of Lender's in-house counsel),
expended or incurred by Lender in connection with (a) the negotiation and
preparation of this Agreement and the other Loan Documents to a maximum of
$150,000, Lender's continued administration hereof and thereof, and the
preparation of any amendments and waivers hereto and thereto, (b) the
enforcement of Lender's rights and/or the collection of any amounts which become
due to Lender under any of the Loan Documents, and (c) the prosecution or
defense of any action in any way related to any of the Loan Documents, including
without limitation, any action for declaratory relief, whether incurred at the
trial or appellate level, in an arbitration proceeding or otherwise, and
including any of the foregoing incurred in connection with any bankruptcy
proceeding (including without limitation, any adversary proceeding, contested
matter or motion brought by Lender or any other person) relating to any Borrower
or any other person or entity.
SECTION 7.4.SUCCESSORS, ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the heirs, executors, administrators, legal
representatives, successors and assigns of the parties; provided however, that
Borrower may not assign or transfer its interest hereunder without Lender's
prior written consent, except in connection with the reincorporation of Borrower
under Washington law under Section 5.3 hereof. 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 benefits under each of the Loan
Documents. In connection therewith, Lender may disclose all documents and
information which Lender now has or may hereafter acquire relating to any credit
subject hereto, Borrower or its business, or any collateral required hereunder.
SECTION 7.5.ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other Loan
Documents constitute the entire agreement between Borrower and Lender with
respect to each credit subject hereto and supersede all prior negotiations,
communications, discussions and correspondence concerning the subject matter
hereof. This Agreement may be amended or modified only in writing signed by each
party hereto.
SECTION 0.0.XX THIRD PARTY BENEFICIARIES. This Agreement is made and
entered into for the sole protection and benefit of the parties hereto and their
respective permitted successors and assigns (including, but not limited to Xxxxx
Fargo Community Development Corporation), and no other person or entity shall be
a third party beneficiary of, or have any direct or indirect cause of action or
claim in connection with, this Agreement or any other of the Loan Documents to
which it is not a party.
-11-
SECTION 7.7.TIME. Time is of the essence of each and every provision of
this Agreement and each other of the Loan Documents.
SECTION 7.8.SEVERABILITY OF PROVISIONS. If any provision of this Agreement
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or any remaining provisions of this
Agreement.
SECTION 7.9.COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be an
original, and all of which when taken together shall constitute one and the same
Agreement.
SECTION 7.10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington.
SECTION 7.11. ARBITRATION.
(a) Arbitration. The parties hereto agree, upon demand by any party, to
submit to binding arbitration all claims, disputes and controversies between or
among them (and their respective employees, officers, directors, attorneys, and
other agents), whether in tort, contract or otherwise arising out of or relating
to in any way (i) the loan and related Loan Documents which are the subject of
this Agreement and its negotiation, execution, collateralization,
administration, repayment, modification, extension, substitution, formation,
inducement, enforcement, default or termination; or (ii) requests for additional
credit.
(b) Governing Rules. Any arbitration proceeding will (i) proceed in a
location in Washington selected by the American Arbitration Association ("AAA");
(ii) be governed by the Federal Arbitration Act (Title 9 of the United States
Code), notwithstanding any conflicting choice of law provision in any of the
documents between the parties; and (iii) be conducted by the AAA, or such other
administrator as the parties shall mutually agree upon, in accordance with the
AAA's commercial dispute resolution procedures, unless the claim or counterclaim
is at least $1,000,000.00 exclusive of claimed interest, arbitration fees and
costs in which case the arbitration shall be conducted in accordance with the
AAA's optional procedures for large, complex commercial disputes (the commercial
dispute resolution procedures or the optional procedures for large, complex
commercial disputes to be referred to, as applicable, as the "Rules"). If there
is any inconsistency between the terms hereof and the Rules, the terms and
procedures set forth herein shall control. Any party who fails or refuses to
submit to arbitration following a demand by any other party shall bear all costs
and expenses incurred by such other party in compelling arbitration of any
dispute. Nothing contained herein shall be deemed to be a waiver by any party
that is a bank of the protections afforded to it under 12 U.S.C. Section 91 or
any similar applicable state law.
(c) No Waiver of Provisional Remedies, Self-Help and Foreclosure. The
arbitration requirement does not limit the right of any party to (i) foreclose
against real or personal property collateral; (ii) exercise self-help remedies
relating to collateral or proceeds of collateral such as setoff or repossession;
or (iii) obtain provisional or ancillary remedies such as replevin, injunctive
relief, attachment or the appointment of a receiver, before during or after the
pendency of any arbitration proceeding. This exclusion does not constitute a
waiver of the right or obligation of any party to submit any dispute to
arbitration or reference hereunder, including those arising from the exercise of
the actions detailed in sections (i), (ii) and (iii) of this paragraph.
(d) Arbitrator Qualifications and Powers. Any arbitration proceeding in
which the amount in controversy is $5,000,000.00 or less will be decided by a
single arbitrator selected according to the Rules, and who shall not render an
award of greater than $5,000,000.00. Any dispute in which the amount in
controversy exceeds $5,000,000.00 shall be decided by majority vote of a panel
of three arbitrators; provided however, that all three arbitrators must actively
participate in all hearings and deliberations. The arbitrator will be a neutral
attorney licensed in the State of Washington or a neutral retired judge of the
state or federal judiciary of Washington, in either case with a minimum of ten
years experience in the substantive law applicable to the subject matter of the
dispute to be arbitrated. The arbitrator will determine whether or not an issue
is arbitratable and will give effect to the statutes of limitation in
determining any claim. In any arbitration proceeding the arbitrator will decide
(by
-12-
documents only or with a hearing at the arbitrator's discretion) any pre-hearing
motions which are similar to motions to dismiss for failure to state a claim or
motions for summary adjudication. The arbitrator shall resolve all disputes in
accordance with the substantive law of Washington and may grant any remedy or
relief that a court of such state could order or grant within the scope hereof
and such ancillary relief as is necessary to make effective any award. The
arbitrator shall also have the power to award recovery of all costs and fees, to
impose sanctions and to take such other action as the arbitrator deems necessary
to the same extent a judge could pursuant to the Federal Rules of Civil
Procedure, the Washington Rules of Civil Procedure or other applicable law.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction. The institution and maintenance of an action for judicial
relief or pursuit of a provisional or ancillary remedy shall not constitute a
waiver of the right of any party, including the plaintiff, to submit the
controversy or claim to arbitration if any other party contests such action for
judicial relief.
(e) Discovery. In any arbitration proceeding discovery will be permitted
in accordance with the Rules. All discovery shall be expressly limited to
matters directly relevant to the dispute being arbitrated and must be completed
no later than 20 days before the hearing date and within 180 days of the filing
of the dispute with the AAA. Any requests for an extension of the discovery
periods, or any discovery disputes, will be subject to final determination by
the arbitrator upon a showing that the request for discovery is essential for
the party's presentation and that no alternative means for obtaining information
is available.
(f) Class Proceedings and Consolidations. The resolution of any dispute
arising pursuant to the terms of this Agreement shall be determined by a
separate arbitration proceeding and such dispute shall not be consolidated with
other disputes or included in any class proceeding.
(g) Payment Of Arbitration Costs And Fees. The arbitrator shall award all
costs and expenses of the arbitration proceeding.
A.
(h) Miscellaneous. To the maximum extent practicable, the AAA, the
arbitrators and the parties shall take all action required to conclude any
arbitration proceeding within 180 days of the filing of the dispute with the
AAA. No arbitrator or other party to an arbitration proceeding may disclose the
existence, content or results thereof, except for disclosures of information by
a party required in the ordinary course of its business or by applicable law or
regulation. If more than one agreement for arbitration by or between the parties
potentially applies to a dispute, the arbitration provision most directly
related to the Loan Documents or the subject matter of the dispute shall
control. This arbitration provision shall survive termination, amendment or
expiration of any of the Loan Documents or any relationship between the parties.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR
ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
EXHIBITS TO CREDIT AGREEMENT
EXHIBIT A - DEFINED TERMS
EXHIBIT B - DUE DILIGENCE LIST
EXHIBIT C - NMTC COMPLIANCE CERTIFICATE
-13-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
"BORROWER"
CORIXA CORPORATION
By: /s/ Xxxxxx Xxxxxx
-----------------
Title: Chairman and Chief Executive Officer
[Seal]
"LENDER"
NDC NEW MARKETS INVESTMENTS IV, L.P.,
a Delaware limited partnership
By: HEDC NEW MARKETS, INC., a Delaware
nonprofit corporation
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chairman
-14-
EXHIBIT A
Defined terms used in the Credit Agreement and not otherwise defined shall
have the respective meanings assigned to them below:
"Facility" means that certain research and development facility located at
0000 Xxxxx Xxxxxx, the Ninth and Stewart Lifesciences Building in the City
of Xxxxxxx, Xxxxxxxxxx 00000. Borrower maintains a leasehold interest in
the Facility pursuant to the Lease.
"Lease" means that certain Lease Agreement dated October 15, 2002 by and
between Borrower, as tenant, and Lifesciences Building, LLC, as lessor, as
amended by that certain First Amendment to Lease and Undertaking by
Additional Parties dated January 10, 2003, by and among Borrower,
Lifesciences Building, LLC, Touchstone Corporation, Xxxxxxx X. Xxxx, Xxxxx
X. X'Xxxxxx and Xxxxx X. Xxxxx.
"Low-Income Community" means in general, any population census tract if:
(1) The poverty rate for such tract is at least 20 percent, or
(2) (a) In the case of a tract not located within a Metropolitan Area, the
median family income for such tract does not exceed 80 percent of
statewide median family income, or (b) in the case of a tract located
within a Metropolitan Area, the median family income for such tract does
not exceed 80 percent of the greater of statewide median family income or
the Metropolitan Area median family income. Possession-wide median family
income shall be used (in lieu of statewide income) in assessing the status
of census tracts located within a possession of the United States.
"Metropolitan Area" means an area designated as such by the Office of
Management and Budget pursuant to 44 U.S.C. Section 3504(e) and 31
U.S.C. Section 1104(d) and Executive Order 10253 (3 C.F.R. Sections
1949-1953 Comp., p. 758), as amended.
"Qualified Active Low-Income Community Business (QALICB)" means any
corporation (including a nonprofit corporation) or partnership if, for any
taxable year:
(1) At least 50 percent of the total gross income of such entity is
derived from the active conduct of a qualified business within any
Low-Income Community;
(2) A substantial portion of the use of the tangible property of such
entity (whether owned or leased) is within any Low-Income Community;
(3) A substantial portion of the services performed for such entity by its
employees are performed in any Low-income Community;
(4) Less than 5 percent of the average of the aggregate unadjusted bases
of the property of such entity is attributable to collectibles (as defined
in IRC Section 408 (m)(2)) other than collectibles that are held primarily
for sale to customers in the ordinary course of such business; and
(5) Less than 5 percent of the average of the aggregate unadjusted bases
of the property of such entity (as defined in IRC Section 1397C(e)) is
attributable to nonqualified financial property.
"Qualified Community Development Entity (CDE)" means any domestic
corporation or partnership if (A) the primary mission of the entity is
serving, or providing investment capital for, Low-Income Communities or
Low-Income Persons; (B) the entity maintains
-15-
accountability to residents of Low-Income Communities through their
representation on any governing board of the entity or on any advisory
board to the entity; and (C) the entity is certified by the Fund as a CDE.
A CDE may also be a limited liability company ("LLC") that meets the above
tests.
"Qualified Equity Investment" means any equity investment in a Community
Development Entity if (A) such investment is acquired by the investor at
its original issue (directly or through an underwriter) solely in exchange
for cash; (B) substantially all of such cash is used by the CDE to make
Qualified Low-Income Community Investments; and (C) the investment is
designated by the Community Development Entity as a Qualified Equity
Investment. Qualified Equity Investment also includes the purchase of a
Qualified Equity Investment from a prior holder, to the extent provided in
IRC Section 45D(b)(4). Qualified Equity Investment does not include any
equity investment issued by a Community Development Entity more than five
years after the date the Community Development Entity receives a NMTC
allocation. For purposes of this Guidance, "equity investment" means (A)
any stock (other than nonqualified preferred stock as defined in IRC
Section 351(g)(2)) in a corporation and (B) any capital interest in a
partnership. An LLC shall be deemed to be either a corporation or a
partnership, according to the LLC's treatment under federal tax law.
"Qualified Low-Income Community Investment" means (A) any capital or
equity investment in, or loan to, any Qualified Active Low-Income
Community Business; (B) the purchase from a CDE of any loan made by such
entity that is a Qualified Low-Income Community Investment; (C) financial
counseling and other services to businesses located in, and residents of
Low-Income Communities; and (D) any equity investment in, or loan to, any
CDE.
-16-
EXHIBIT B
DUE DILIGENCE CHECKLIST
[X] DOCUMENT DESCRIPTION PARTIES RESP. PARTY COMMENTS
------------------------------------------------------ -------- ----------- --------
Borrower (Corixa Corporation) Documents
Articles of Incorporation Borrower Borrower
Bylaws Borrower Borrower
Authorizing Resolutions Borrower Borrower
Incumbency Certificate Borrower Borrower
NMTC Compliance Certificate Borrower Borrower
Title Company Guarantee: Qualified Census Tract Borrower Borrower
Building Plans and Specifications Borrower Borrower
Initial Projections acceptable to CDE Borrower Borrower
Project Budget Borrower Borrower
UCC, Judgment, Lien Searches for Borrower Borrower Borrower
Lease for Building Borrower Borrower
Financial Statements of Borrower Borrower Borrower
Copies of Existing GE Financing Borrower Borrower
-17-
EXHIBIT C
NMTC COMPLIANCE CERTIFICATE
The undersigned, being the Chief Executive Officer of Corixa Corporation,
does hereby certify to NDC New Markets Investments IV, L.P. the following
representations:
1. Low-Income Community. Corixa Corporation ("Corixa") is currently leasing
and in the process of completing tenant improvements to the building which
will be (at construction completion) its corporate headquarters. Pursuant
to that certain Lease dated October 15, 2003 as amended by the First
Amendment to Lease and Undertaking by Additional Parties dated January 10,
2004, the landlord leased the premises to Corixa Corporation. The legal
description of the Premises described in the Lease is Xxxx 0 xxxxxxx 0,
Xxxxx 00, Xxxxx of Xxxx X. Xxxx'x Second Addition to the City of Seattle,
King County, Washington and commonly known as 0000 0xx Xxxxxx, located on
the corner of 0xx Xxxxxx xxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
(the "Premises"). A Low-Income Community is defined as a population census
tract if (i) the poverty rate is at least twenty percent (20%), (ii) if
not in a metropolitan area the median family income for such tract does
not exceed eighty percent (80%)of the statewide median family income, or
(iii) if the census tract is within a metropolitan area, the median family
income does not exceed eighty percent (80%) of the greater of the
statewide median family income or the metropolitan area median family
income. According to the "geocode link" on the government website
(xxx.xxxxx.xxx) the Premises are located in a census tract (within
Seattle's metropolitan area) which has been identified as Tract Number
0073.00, County Code 33, State Code 53 , and according to such website
Census Tract 0073.00 has a poverty rate in excess of forty percent (40%).
2. Tangible Property Test. At least forty percent (40%) of the use of the
tangible property of Corixa (whether owned or leased) is within a
Low-Income Community, including the Premises. [For purposes of this test,
the Premises are considered to be Corixa's only office.]
3. Services Test. At least forty percent (40%) of the services performed by
Corixa's employees are performed in a Low-Income Community including the
Premises. [The percentage is determined based on a fraction the numerator
of which is the total amount paid by the entity for the employees services
performed during the taxable year in a Low-Income Community, including the
Premises, and the denominator of which is the total amount paid by the
entity for the employee services during the taxable year.]
4. Gross-Income Test. At least fifty percent (50%) of the total gross income
of Corixa is derived from the active conduct of a business not involving
(i) developing or holding intangible for sale of lease, (ii) operation of
a golf course, or country club, massage parlor, hot tub facility, suntan
facility, racetrack or gambling facility or store selling alcoholic
beverages, and (iii) farming operations. The Gross Income Test is deemed
satisfied if either the Tangible Property Test or the Services Test are
satisfied using an increased percentage from 40% to 50%.
5. Collectibles. Less than five percent (5%) of the average of the aggregate
unadjusted bases of the property of Corixa is attributable to collectibles
defined in Section 408(m) of the Internal Revenue Code (e.g. art work,
rugs, metal or gems, stamps, wines) unless such collectibles are held
primary for sale to customers in the ordinary course of business.
6. Nonqualified financial property. Less than five percent (5%) of the
average of the aggregate unadjusted bases of the property of Corixa is
attributable to nonqualified financial property defined in Section
1397C(e) of the Internal Revenue Code (e.g. banks, credit unions other
financial institutions).
7. Ownership. To our knowledge, neither HEDC New Markets, Inc. or Xxxxx Fargo
Community Development Corporation, or any of their affiliates have any
ownership interest in Corixa.
8. Use of Loan Proceeds. Corixa agrees to invest one hundred percent (100%)
of the $14,550,00 loan proceeds from NDC New Markets Investments, L.P.
into the Premises, evidenced either by the purchase of tenant improvements
or equipment to be located in the Premises.
9. Reasonable Expectations. It is Corixa's current expectation to occupy the
Premises for the term of the Lease.
Executed this __ day of __________, 2004.
CORIXA CORPORATION
By: _____________________________
Its: ____________________________