EXHIBIT 4.3
MASTER LOAN AND SECURITY AGREEMENT
THIS AGREEMENT dated as of July 15, 1998, is made by Aquila
Biopharmaceuticals, Inc. (the "Borrower"), a Delaware corporation having its
principal place of business and chief executive office at 000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000 in favor of Transamerica
Business Credit Corporation, a Delaware corporation (the "Lender"), having
its principal office at Riverway II, West Office Tower, 0000 Xxxx Xxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000.
WHEREAS, the Borrower has requested that the Lender make Loans
to it from time to time; and
WHEREAS, the Lender has agreed to make such Loans on the terms
and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and to
induce the Lender to extend credit, the Borrower hereby agrees with the
Lender as follows:
SECTION 1. DEFINITIONS.
As used herein, the following terms shall have the following
meanings, and shall be equally applicable to both the singular and plural forms
of the terms defined:
Agreement shall mean this Master Loan and Security Agreement together with
all schedules and exhibits hereto, as amended, supplemented, or otherwise
modified from time to time.
Applicable Law shall mean the laws of the State of Illinois (or any other
jurisdiction whose laws are mandatorily applicable notwithstanding the parties'
choice of Illinois law) or the laws of the United States of America, whichever
laws allow the greater interest, as such laws now exist or may be changed or
amended or come into effect in the future.
Business Day shall mean any day other than a Saturday, Sunday, or public
holiday or the equivalent for banks in New York City.
Code shall have the meaning specified in Section 8(d).
Collateral shall have the meaning specified in Section 2.
Effective Date shall mean the date on which all of the conditions specified in
Section 3.3 shall have been satisfied.
Equipment shall have the meaning specified in Section 2.
Event of Default shall mean any event specified in Section 7.
Financial Statements shall have the meaning specified in Section 6.1.
GAAP shall mean generally accepted accounting principles in the United
States of America, as in effect from time to time.
Loans shall mean the loans and financial accommodations made by the Lender
to the Borrower in accordance with the terms of this Agreement and the Notes.
Loan Documents shall mean, collectively, this Agreement, the Notes, and all
other documents, agreements, certificates, instruments, and opinions executed
and delivered in connection herewith and therewith, as the same may be
modified, extended, restated, or supplemented from time to time.
Material Adverse Change shall mean, with respect to any Person, a material
adverse change in the business, prospects, operations, results of operations,
assets, liabilities, or condition (financial or otherwise) of such Person taken
as a whole.
Material Adverse Effect shall mean, with respect to any Person, a material
adverse effect on the business, prospects, operations, results of operations,
assets. liabilities, or condition (financial or otherwise) of such Person taken
as a whole.
Note shall mean each Promissory Note made by the Borrower in favor of the
Lender, as amended, supplemented, or otherwise modified from time to time.
Obligations shall mean all indebtedness, obligations, and liabilities of the
Borrower under the Notes and under this Agreement, whether on account of
principal, interest, indemnities, fees (including, without limitation,
attorneys' fees, remarketing fees, origination fees, collection fees, and
all other professionals' fees), costs, expenses, taxes, or otherwise.
Permitted Liens shall mean such of the following as to which no enforcement,
collection, execution, levy, or foreclosure proceeding shall have been
commenced: (a) liens for taxes, assessments, and other governmental charges
or levies or the claims or demands of landlords, carriers, warehousemen,
mechanics, laborers, materialmen, and other like Persons arising by operation
of law in the ordinary course of business for sums which are not yet due and
payable, or liens which are being contested in good faith by appropriate
proceedings diligently conducted and with respect to which adequate reserves
are maintained to the extent required by GAAP; (b) deposits or pledges to
secure the payment of worker's compensation, unemployment insurance, or
other social security benefits or obligations, public or statutory obligations,
surety or appeal bonds, bid or performance bonds, or other obligations of a like
nature incurred in the ordinary course of business; (c) licenses, restrictions,
or covenants for or on the use of the Equipment which do not materially impair
either the use of the Equipment in the operation of the business of the
Borrower or the value of the Equipment; and (d) attachment or judgment liens
that do not constitute an Event of Default.
Person shall mean any individual, sole proprietorship, partnership, limited
liability partnership, joint venture, trust, unincorporated organization,
association, corporation, limited liability company, institution, entity, party,
or government (including any division, agency, or department thereof), and the
successors, heirs, and assigns of each.
Schedule shall mean each Schedule in the form of Schedule A hereto delivered
by the Borrower to the Lender from time to time.
Solvent means, with respect to any Person, that as of the date as to which such
Person's solvency is measured:
(a) the fair saleable value of its assets is in excess of
the total amount of its liabilities (including contingent liabilities as valued
in accordance with GAAP) as they become absolute and matured;
(b) it has sufficient capital to conduct its business; and
(c) it is able generally to meet its debts as they mature.
Taxes shall have the meaning specified in Section 5.5.
SECTION 2. CREATION OF SECURITY INTEREST;
COLLATERAL. The Borrower hereby assigns and grants to the Lender a
continuing general, first priority lien on, and security interest in, all the
Borrower's right, title, and interest in and to the collateral described in the
next sentence (the "Collateral") to secure the payment and performance of all
the Obligations. The Collateral consists of all equipment set forth on all the
Schedules delivered from time to time under the terms of this Agreement (the
"Equipment"), together with all present and future additions, parts,
accessories, attachments, substitutions, repairs, improvements, and replacements
thereof or thereto, and any and all proceeds thereof, including, without
limitation, proceeds of insurance and all manuals, blueprints, know-how,
warranties, and records in connection therewith, all rights against suppliers,
warrantors, manufacturers, sellers, or others in connection therewith, and
together with all substitutes for any of the foregoing.
SECTION 3. THE CREDIT FACILITY
SECTION 3.1. Borrowings. Each Loan shall be in an
amount not less than S50,000, and in no event shall the sum of the aggregate
Loans made exceed the amount of the Lender's written commitment to the
Borrower in effect from time to time. Notwithstanding anything herein to the
contrary, the Lender shall be obligated to make the initial Loan and each other
Loan only after the Lender, in its sole discretion, determines that the
applicable conditions for borrowing contained in Sections 3.3 and 3.4 are
satisfied. The timing and financial scope of Lender's obligation to make Loans
hereunder are limited as set forth in a commitment letter executed by Lender
and Borrower, dated as of June 17, 1998 and attached hereto as Exhibit A (the
"Commitment Letter").
SECTION 3.2. Application of Proceeds. The Borrower shall
not directly or indirectly use any proceeds of the Loans, or cause, assist,
suffer, or permit the use of any proceeds of the Loans, for any purpose other
than for the purchase, acquisition, installation, or upgrading of Equipment or
the reimbursement of the Borrower for its purchase, acquisition, installation,
or upgrading of Equipment.
SECTION 3.3. Conditions to Initial Loan.
(a) The obligation of the Lender to make the initial
Loan is subject to the Lender's receipt of the following, each dated the date of
the initial Loan or as of an earlier date acceptable to the Lender, in form and
substance satisfactory to the Lender and its counsel:
(i) completed requests for information (Form
UCC-11) listing all effective Uniform Commercial Code financing statements
naming the Borrower as debtor and all tax lien, judgment, and litigation
searches for the Borrower as the Lender shall deem necessary or desirable;
(ii) Uniform Commercial Code financing
statements (Form UCC-1) duly executed by the Borrower (naming the Lender
as secured party and the Borrower as debtor and in form acceptable for filing
in all jurisdictions that the Lender deems necessary or desirable to perfect the
security interests granted to it hereunder) and, if applicable, termination
statements or other releases duly filed in all jurisdictions that the Lender
deems necessary or desirable to perfect and protect the priority of the security
interests granted to it hereunder in the Equipment related to such initial Loan:
(iii) a Note duly executed by the Borrower
evidencing the amount of such Loan;
(iv) certificates of insurance required under
Section 5.4 of this Agreement together with loss payee endorsements for all
such policies naming the Lender as lender loss payee and as an additional
insured;
(v) a copy of the resolutions of the Board of
Directors of the Borrower (or a unanimous consent of directors in lieu thereof)
authorizing the execution, delivery, and performance of this Agreement, the
other Loan Documents, and the transactions contemplated hereby and thereby,
attached to which is a certificate of the Secretary or an Assistant Secretary of
the Borrower certifying (A) that the copy of the resolutions is true, complete,
and accurate, that such resolutions have not been amended or modified since
the date of such certification and are in full force and effect and (B) the
incumbency, names, and true signatures of the officers of the Borrower
authorized to sign the Loan Documents to which it is a party;
(vi) an agreement executed by the landlord for
the premises where the Equipment will be located covering such matters
incident to the transactions contemplated by this Agreement as the Lender may
reasonably require:
(vii) the opinion of' counsel for the Borrower
covering such matters incident to the transactions contemplated by this
Agreement as the Lender may reasonably require; and
(viii) such other agreements and instruments as
the Lender deems necessary in its sole and absolute discretion in connection
with the transactions contemplated hereby.
(b) There shall be no pending or, to the knowledge of
the Borrower after due inquiry, threatened litigation, proceeding, inquiry, or
other action (i) seeking an injunction or other restraining order, damages, or
other relief with respect to the transactions contemplated by this Agreement or
the other Loan Documents or thereby or (ii) which affects or could affect the
business, prospects, operations, assets, liabilities, or condition (financial or
otherwise) of the Borrower, except, in the case of clause (ii), where such
litigation, proceeding, inquiry, or other action could not be expected to have a
Material Adverse Effect in the judgment of the
Lender.
(c) The Borrower shall have paid all fees and
expenses required to be paid by it to the Lender as of such date.
(d) The security interests in the Equipment related to
the initial Loan granted in favor of the Lender under this Agreement shall
have been duly perfected and shall constitute first priority liens.
SECTION 3.4. Conditions Precedent to Each Loan.
The obligation of the Lender to make each Loan is subject to the satisfaction
of the following conditions precedent:
(a) the Lender shall have received the documents,
agreements, and instruments set forth in Section 3.3(a)(i) through (v)
applicable to such Loan, each in form and substance satisfactory to the Lender
and its counsel and each dated the date of such Loan or as of an earlier date
acceptable to the Lender;
(b) the Lender shall have received a Schedule of the
Equipment related to such Loan, in form and substance satisfactory to the
Lender and its counsel, and the security interests in such Equipment related to
such Loan granted in favor of the Lender under this Agreement shall have
been duly perfected and shall constitute first priority liens;
(c) all representations and warranties contained in this
Agreement and the other Loan Documents shall be true and correct on and as
of the date of such Loan as if then made, other than representations and
warranties that expressly relate solely to an earlier date, in which case they
shall have been true and correct as of such earlier date;
(d) no Event of Default or event which with the giving
of notice or the passage of time, or both, would constitute an Event of Default
shall have occurred and be continuing or would result from the making of the
requested Loan as of the date of such request; and
(e) the Borrower shall be deemed to have hereby
reaffirmed and ratified all security interests, liens, and other encumbrances
heretofore granted by the Borrower to the Lender.
SECTION 4. THE BORROWER'S REPRESENTATIONS AND
WARRANTIES.
SECTION 4.1. Good Standing; Qualified to do
Business. The Borrower (a) is duly organized, validly existing, and in good
standing under the laws of the State of its organization, (b) has the power and
authority to own its properties and assets and to transact the businesses in
which it is presently, or proposes to be, engaged, and (c) is duly qualified and
authorized to do business and is in good standing in every jurisdiction in which
the failure to be so qualified could have a Material Adverse Effect on (i) the
Borrower, (ii) the Borrower's ability to perform its obligations under the Loan
Documents, or (iii) the rights of the Lender hereunder.
SECTION 4.2. Due Execution, etc. The execution,
delivery, and performance by the Borrower of each of the Loan Documents to
which it is a party are within the powers of the Borrower, do not contravene
the organizational documents. if any, of the Borrower, and do not (a) violate
any law or regulation, or any order or decree of any court or governmental
authority, (b) conflict with or result in a breach of, or constitute a default
under, any material indenture, mortgages, or deed of trust or any material
lease, agreement, or other instrument binding on the Borrower or any of its
properties, or (c) require the consent, authorization by, or approval of or
notice to or filing or registration with any governmental authority or other
Person. This Agreement is, and each of the other Loan Documents to which the
Borrower is or will be a party, when delivered hereunder or thereunder, will
be, the legal, valid, and binding obligation of the Borrower enforceable against
the Borrower in accordance with its terms, except as enforceability may he
limited by bankruptcy, insolvency, or similar laws affecting creditors' rights
generally and by general principles of equity.
SECTION 4.3. Solvency; No Liens. The Borrower is
Solvent and will be Solvent upon the completion of all transactions
contemplated to occur hereunder (including, without limitation, the Loan to be
made on the Effective Date), the security interests granted herein constitute
and shall at all times constitute the first and only liens on the Collateral
other than Permitted Liens; and the Borrower is, or will be at the time
additional Collateral is acquired by it, the absolute owner of the Collateral
with full right to pledge, sell, consign, transfer, and create a security
interest therein, free and clear of any and all claims or liens in favor of
any other Person other than Permitted Liens.
SECTION 4.4. No Judgments, Litigation. No judgments
are outstanding against the Borrower nor is there now pending or, to the best
of the Borrower's knowledge after diligent inquiry, threatened any litigation,
contested claim, or governmental proceedings by or against the Borrower
except judgments and pending or threatened litigation, contested claims, and
governmental proceedings which would not, in the aggregate, have a Material
Adverse Effect on the Borrower.
SECTION 4.5. No Defaults. The Borrower is not in
default or has not received a notice of default under any material contract,
lease, or commitment to which it is a party or by which it is bound. The
Borrower knows of no dispute regarding any contract, lease, or commitment
which could have a Material Adverse Effect on the Borrower.
SECTION 4.6. Collateral Locations. On the date hereof,
each item of the Collateral is located at the place of business specified in the
applicable Schedule.
SECTION 4.7. No Events of Default. No Event of
Default has occurred and is continuing nor has any event occurred which, with
the giving of notice or the passage of time, or both, would constitute an Event
of Default.
SECTION 4.8. No Limitation on Lender's Rights.
Except as permitted herein, none of the Collateral is subject to contractual
obligations that may restrict or inhibit the Lender's rights or abilities to
sell or dispose of the Collateral or any part thereof after the occurrence of
an Event of Default.
SECTION 4.9. Perfection and Priority of Security
Interest. This Agreement creates a valid and, upon completion of all required
filings of financing statements, perfected first priority and exclusive security
interest in the Collateral, securing the payment of all the Obligations.
SECTION 4.10. Model and Serial Numbers. The
Schedules set forth are the true and correct model number and serial number of
each item of Equipment that constitutes Collateral.
SECTION 4.11. Accuracy and Completeness of
Information. All data, reports, and information heretofore,
contemporaneously, or hereafter furnished by or on behalf of the Borrower in
writing to the Lender or for purposes of or in connection with this Agreement
or any other Loan Document, or any transaction contemplated hereby or thereby,
are or will be true and accurate in all material respects on the date as
of which such data, reports, and information are dated or certified and not
incomplete by omitting to state any material fact necessary to make such data,
reports, and information not misleading at such time. There are no facts now
known to the Borrower which individually or in the aggregate would
reasonably be expected to have a Material Adverse Effect and which have not
been specified herein, in the Financial Statements, or in any certificate,
opinion, or other written statement previously furnished by the Borrower to the
Lender.
SECTION 4.12. Price of Equipment. To Borrower's
knowledge, the cost of each item of Equipment does not exceed the fair and
usual price for such type of equipment purchased in like quantity and reflects
all discounts, rebates and allowances for the Equipment (including, without
limitation, discounts for advertising, prompt payment, testing, or other
services) given to the Borrower by the manufacturer, supplier, or any other
person.
SECTION 5. COVENANTS OF THE BORROWER.
SECTION 5.1. Existence, etc. The Borrower shall: (a) retain its
existence and its current yearly accounting cycle, (b) maintain in full
force and effect all licenses, bonds, franchises, leases, trademarks, patents,
contracts, and other rights necessary or desirable to the profitable conduct of
its business unless the failure to do so could not reasonably be expected to
have a Material Adverse Effect on the Borrower, (c) continue in, and limit its
operations to, the same general lines of business as those presently conducted
by it, and (d) comply with all applicable laws and regulations of any federal,
state, or local governmental authority, except for such laws and regulations the
violations of which would not, in the aggregate, have a Material Adverse
Effect on the Borrower.
SECTION 5.2. Notice to the Lender. As soon as possible, and in
any event within five days after the Borrower learns of the following, the
Borrower will give written notice to the Lender of (a) any proceeding
instituted or threatened in writing to be instituted by or against the
Borrower in any federal, state, local, or foreign court or before any
commission or other regulatory body (federal, state, local, or foreign)
involving a sum, together with the sum involved in all other similar
proceedings, in excess of $100,000 in the aggregate, (b) any contract that is
terminated or amended and which has had or could reasonably be expected to
have a Material Adverse Effect on the Borrower, (c) the occurrence of any
Material Adverse Change with respect to the Borrower, and (d) the occurrence
of any Event of Default or event or condition which, with notice or lapse of
time or both, would constitute an Event of Default, together with a statement
of the action which the Borrower has taken or proposes to take with respect
thereto.
SECTION 5.3. Maintenance of Books and Records. The
Borrower will maintain books and records pertaining to the Collateral in such
detail, form, and scope as the Lender shall require in its commercially
reasonable judgment. The Borrower agrees that the Lender or its agents may
enter upon the Borrower's premises at any time and from time to time during
normal business hours, and at any time upon the occurrence and continuance
of an Event of Default, for the purpose of inspecting the Collateral and any and
all records pertaining thereto.
SECTION 5.4. Insurance. The Borrower will maintain
insurance on the Collateral under such policies of insurance, with such
insurance companies, in such amounts, and covering such risks as are at all
times satisfactory to the Lender. All such policies shall be made payable to
the Lender, in case of loss, under a standard non-contributory "lender" or
"secured party" clause and are to contain such other provisions as the Lender
may reasonably require to protect the Lender's interests in the Collateral and
to any payments to be made under such policies. Certificates of insurance
policies are to be delivered to the Lender, premium prepaid, with the loss
payable endorsement in the Lender's favor, and shall provide for not less than
thirty days' prior written notice to the Lender, of any alteration or
cancellation of coverage. If the Borrower fails to maintain such insurance,
the Lender may arrange for (at the Borrower's expense and without any
responsibility on the Lender's part for) obtaining the insurance. Unless the
Lender shall otherwise agree with the Borrower in writing, the Lender shall have
the sole right during the continuance of an Event of Default, in the name of
the Lender or the Borrower, to file claims under any insurance policies, to
receive and give acquittance for any payments that may be payable thereunder,
and to execute any endorsements, receipts, releases, assignments, reassignments,
or other documents that may be necessary to effect the collection, compromise.
or settlement of any claims under any such insurance policies.
SECTION 5.5. Taxes. The Borrower will pay, when due,
all taxes, assessments, claims, and other charges ("Taxes") lawfully levied or
assessed against the Borrower or the Collateral other than taxes that are beings
diligently contested in good faith by the Borrower by appropriate proceedings
promptly instituted and for which an adequate reserve is being maintained by
the Borrower in accordance with GAAP. If any Taxes remain unpaid after the
date fixed for the payment thereof, or if any lien shall be claimed therefor,
then, without notice to the Borrower, but on the Borrower's behalf, the Lender
may pay such Taxes, and the amount thereof shall be included in the
Obligations.
SECTION 5.6. Borrower to Defend Collateral Against
Claims; Fees on Collateral. The Borrower will defend the Collateral against
all claims and demands of all Persons at any time claiming the same or any
interest therein. The Borrower will not permit any notice creating or otherwise
relating to liens on the Collateral or any portion thereof to exist or be on
file in any public office other than Permitted Liens. The Borrower shall
promptly pay, when payable, all transportation, storage, and warehousing
charges and license fees, registration fees, assessments, charges, permit fees,
and taxes (municipal, state, and federal) which may now or hereafter be imposed
upon the ownership, leasing, renting, possession, sale, or use of the
Collateral, other than taxes on or measured by the Lender's income and fees,
assessments, charges, and taxes which are being contested in good faith by
appropriate proceedings diligently conducted and with respect to which adequate
reserves are maintained to the extent required by GAAP.
SECTION 5.7. No Change of Location, Structure, or Identity. The
Borrower will not (a) change the location of its chief executive office or
establish any place of business other than those specified herein or (b)
move or permit the movement of any item of Collateral from the location
specified in the applicable Schedule, except that the Borrower may change its
chief executive office and keep Collateral at other locations within the United
States provided that the Borrower has delivered to the Lender (i) prior written
notice thereof and (ii) duly executed financing statements and other
agreements and instruments (all in form and substance satisfactory to the
Lender) necessary or, in the opinion of the Lender, desirable to perfect and
maintain in favor of the Lender a first priority security interest in the
Collateral. Notwithstanding anything to the contrary in the immediately
preceding sentence, the Borrower may keep any Collateral consisting of motor
vehicles or rolling stock at any location in the United States provided that the
Lender's security interest in any such Collateral is conspicuously marked on
the certificate of title thereof and the Borrower has complied with the
provisions of Section 5.9.
SECTION 5.8. Use of Collateral; Licenses; Repair. The
Collateral shall be operated by competent, qualified personnel in connection
with the Borrower's business purposes, for the purpose for which the Collateral
was designed and in accordance with applicable operating instructions. laws,
and government regulations, and the Borrower shall use every reasonable
precaution to prevent loss or damage to the Collateral from fire and other
hazards. The Collateral shall not be used or operated for personal, family, or
household purposes. The Borrower shall procure and maintain in effect all
orders, licenses, certificates, permits, approvals, and consents required by
federal, state, or local laws or by any governmental body, agency, or authority
in connection with the delivery, installation, use, and operation of the
Collateral. The Borrower shall keep all of the Equipment in a satisfactory
state of repair and satisfactory operating condition in accordance with
industry standards, and will make all repairs and replacements when and where
necessary and practical. The Borrower will not waste or destroy the
Equipment or any part thereof, and will not be negligent in the care or use
thereof. The Equipment shall not be annexed or affixed to or become part of
any realty without the Lender's prior written consent which will not be
unreasonably withheld.
SECTION 5.9. Further Assurances. The Borrower will,
promptly upon request by the Lender, execute and deliver or use its best
efforts to obtain any document required by the Lender (including, without
limitation, warehouseman or processor disclaimers, mortgagee waivers,
landlord disclaimers, or subordination agreements with respect to the
Obligations and the Collateral, give any notices, execute and file any financing
statements, mortgages, or other documents (all in form and substance
satisfactory to the Lender), xxxx any chattel paper, deliver any chattel paper
or instruments to the Lender, and take any other actions that are necessary or,
in the opinion of the Lender, desirable to perfect or continue the perfection
and the first priority of the Lender's security interest in the Collateral, to
protect the Collateral against the rights, claims, or interests of any Persons,
or to effect the purposes of this Agreement. The Borrower hereby authorizes
the Lender to file one or more financing or continuation statements, and
amendments thereto, relating to all or any part of the Collateral without the
signature of the Borrower where permitted by law. A carbon, photographic, or
other reproduction of this Agreement or any financing statement coverings the
Collateral or any part thereof shall be sufficient as a financing statement
where permitted by law. To the extent required under this Agreement, the
Borrower will pay all costs incurred in connection with any of the foregoing.
SECTION 5.10. No Disposition of Collateral. The Borrower will not in
any way hypothecate or create or permit to exist any lien, security interest,
charge, or encumbrance on or other interest in any of the Collateral, except
for the lien and security interest granted hereby and Permitted Liens which are
junior to the lien and security interest of the Lender, and the Borrower will
not sell, transfer, assign, pledge, collaterally assign, exchange, or otherwise
dispose of any of the Collateral without substituting Collateral of equal or
greater value. In the event the Collateral, or any part thereof, is sold,
transferred, assigned, exchanged, or otherwise disposed of in violation of
these provisions, the security interest of the Lender shall continue
in such Collateral or part thereof notwithstanding such sale, transfer,
assignment, exchange, or other disposition, and the Borrower will hold the
proceeds thereof in a separate account for the benefit of the Lender. Following
such a sale, the Borrower will transfer such proceeds to the Lender in kind.
SECTION 5.11. No Limitation on Lender's Rights. The
Borrower will not enter into any contractual obligations which may restrict or
inhibit the Lender's rights or ability to sell or otherwise dispose of the
Collateral or any part thereof.
SECTION 5.12. Protection of Collateral. Upon notice to
the Borrower (provided that if an Event of Default has occurred and is
continuing the Lender need not give any notice, the Lender shall have the right
at any time to make any payments and do any other acts the Lender may deem
necessary to protect its security interests in the Collateral, including,
without limitation, the rights to satisfy, purchase, contest, or compromise any
encumbrance, charge, or lien which, in the reasonable judgment of the Lender,
appears to be prior to or superior to the security interests granted hereunder,
and appear in, and defend any action or proceeding purporting to affect its
security interests in, or the value of, any of the Collateral. The Borrower
hereby agrees to reimburse the Lender for all payments made and expenses
incurred under this Agreement including fees, expenses, and disbursements of
attorneys and paralegal (including the allocated costs of in-house counsel)
acting for the Lender, including any of the foregoing payments under, or acts
taken to protect its security interests in, any of the Collateral, which amounts
shall be secured under this Agreement, and agrees it shall be bound by any
payment reasonably made or act reasonably taken by the Lender hereunder
absent the Lender's gross negligence or willful misconduct. The Lender shall
have no obligation to make any of the foregoing payments or perform any of
the foregoing acts.
SECTION 5.13. Delivery of Items. The Borrower will (a) promptly (but
in no event later than one Business Day) after its receipt thereof,
deliver to the Lender any documents or certificates of title issued with respect
to any property included in the Collateral, and any promissory notes, letters of
credit or instruments related to or otherwise in connection with any property
included in the Collateral, which in any such case come into the possession of
the Borrower, or shall cause the issuer thereof to deliver any of the same
directly to the Lender, in each case with any necessary endorsements in favor
of the Lender and (b) deliver to the Lender as soon as available copies of any
and all press releases and other similar communications issued by the
Borrower.
SECTION 5.14. Solvency. The Borrower shall be and
remain Solvent at all times.
SECTION 5.15. Fundamental Changes. The Borrower
shall not (a) amend or modify its name, unless the Borrower delivers to the
Lender thirty days prior to any such proposed amendment or modification
written notice of such amendment or modification and within ten days before
such amendment or modification delivers executed Uniform Commercial
Code financing statements (in form and substance satisfactory to the Lender)
or (b) merge or consolidate with any other entity or make any material change
in its capital structure, in each case without the Lender's prior written
consent which shall not be unreasonably withheld.
SECTION 5.16. Additional Requirements. The Borrower
shall take all such further actions and execute all such further documents and
instruments as the Lender may reasonably request in order to carry out the
provisions of this Agreement.
SECTION 6. FINANCIAL STATEMENTS. Until the payment and
satisfaction in full of all Obligations, the Borrower shall deliver to the
Lender the following financial information:
SECTION 6.1. Annual Financial Statements. As soon as
available, but not later than 120 days after the end of each fiscal year of the
Borrower and its consolidated subsidiaries, the consolidated balance sheet,
income statement, and statements of cash flows and shareholders equity for the
Borrower and its consolidated subsidiaries (the "Financial Statements") for
such year, reported on by independent certified public accountants without an
adverse qualification; and
SECTION 6.2. Quarterly Financial Statements. As soon as available,
but not later than 60 days after the end of each of the first three
fiscal quarters in any fiscal year of the Borrower and its consolidated
subsidiaries, the Financial Statements for such fiscal quarter. together with a
certification duly executed by a responsible officer of the Borrower that such
Financial Statements have been prepared in accordance with GAAP and are
fairly stated in all material respects (subject to normal year-end audit
adjustments).
SECTION 7. EVENTS OF DEFAULT. The occurrence of any of the
following events shall Constitute an Event of Default hereunder:
(a) the Borrower shall fail to pay within two days after
notice of failure to pay when due any amount required to be paid by the
Borrower under or in connection with any Note and this Agreement;
(b) any representation or warranty made or deemed
made by the Borrower under or in connection with any Loan Document or any
Financial Statement shall prove to have been false or incorrect in any material
respect when made;
(c) the Borrower shall fail to perform or observe (i) any
of the terms, covenants or agreements contained in Sections 5.4, 5.7, 5.10,
5.14, or 5.15 hereof or (ii) any other term, covenant, or agreement contained in
any Loan Document (other than the other Events of Default specified in this
Section 7) and such failure remains unremedied for the earlier of fifteen days
from (A) the date on which the Lender has given the Borrower written notice
of such failure and (B) the date on which the Borrower knew or should have
known of such failure;
(d) any provision of any Loan Document to which the
Borrower is a party shall for any reason cease to be valid and binding on the
Borrower, or the Borrower shall so state;
(e) dissolution, liquidation, winding up, or cessation of the
Borrower's business, failure of the Borrower generally to pay its debts as they
mature, admission in writing by the Borrower of its inability generally to pay
its debts as they mature, or calling of a meeting of the Borrower's creditors
for purposes of compromising any of the Borrower's debts;
(f) the commencement by or against the Borrower of
any bankruptcy, insolvency, arrangement, reorganization, receivership, or
similar proceedings under any federal or state law and, in the case of any such
involuntary proceeding, such proceeding remains undismissed or unstayed for
forty-five days following the commencement thereof, or any action by the
Borrower is taken authorizing any such proceedings;
(g) an assignment for the benefit of creditors is made by
the Borrower, whether voluntary or involuntary, the appointment of a trustee,
custodian, receiver, or similar official for the Borrower or for any substantial
property of the Borrower, or any action by the Borrower authorizing any such
proceeding;
(h) the Borrower shall default in (i) the payment of
principal or interest on any indebtedness in excess of $100,000 (other than the
Obligations) beyond the period of grace, if any, provided in the instrument or
agreement under which such indebtedness was created; or (ii) the observance
or performance of any other agreement or condition relating to any such
indebtedness or contained in any instrument or agreement relating thereto, or
any other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or holders of such
indebtedness to cause, with the giving of notice if required, such indebtedness
to become due prior to its stated maturity; or (iii) any loan or other agreement
under which the Borrower has received financing from Transamerica
Corporation or any of its affiliates;
(i) the Borrower suffers or sustains a Material Adverse
Change;
(j) any tax lien, other than a Permitted Lien, is filed of
record against the Borrower and is not bonded or discharged within five
Business Days;
(k) any judgment which has had or could reasonably be
expected to have a Material Adverse Effect on the Borrower and such
judgment shall not be stayed, vacated, bonded, or discharged within sixty
days;
(1) any material covenant, agreement, or obligation, as
determined in the good faith business judgment of the Lender, made by the
Borrower and contained in or evidenced by any of the Loan Documents shall
cease to be enforceable, or shall be determined to be unenforceable, in
accordance with its terms, the Borrower shall deny or disaffirm the
Obligations under anv of the Loan Documents or anv liens granted in
connection therewith or any liens granted on any of the Collateral in favor of
the Lender shall be determined to be void, voidable, or invalid, or shall not be
given the priority contemplated by this Agreement; or
(m) there is a change, which change results from a single
transaction or series of related transactions but not from the sale of newly
issued securities to investors, in more than 35% of the ownership of any equity
interests of the Borrower on the date hereof without Lender's prior written
consent which will not be unreasonably withheld or more than 35% of such
interests become subject to any contractual, judicial, or statutory lien,
charge, security interest, or encumbrance.
SECTION 8. REMEDIES. If any Event of Default shall have occurred
and be continuing:
(a) The Lender may, without prejudice to any of its
other rights under any Loan Document or Applicable Law, declare all
Obligations to be immediately due and payable (except with respect to any
Event of Default set forth in Section 7(f) hereof, in which case all Obligations
shall automatically become immediately due and payable without necessity of
any declaration) without presentment, representation, demand of payment, or
protest, which are hereby expressly waived.
(b) The Lender may take possession of the Collateral
and, for that purpose may enter, with the aid and assistance of any person or
persons, any premises where the Collateral or any part hereof is, or may be
placed, and remove the same.
(c) The obligation of the Lender, if any, to make
additional Loans or financial accommodations of any kind to the Borrower
shall immediately terminate.
(d) The Lender may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein (or in
any Loan Document) or otherwise available to it, all the rights and remedies of
a secured party under the applicable Uniform Commercial Code (the "Code")
whether or not the Code applies to the affected Collateral and also may (i)
require the Borrower to, and the Borrower hereby agrees that it will (to the
extent it is reasonably practical to do so) at its expense and upon request of
the Lender forthwith, assemble all or part of the Collateral as directed by the
Lender and make it available to the Lender at a place to be designated by the
Lender that is reasonably convenient to both parties and (ii) without notice
except as specified below, sell the Collateral or any part thereof in one or
more parcels at public or private sale, at any of the Lender's offices or
elsewhere, for cash, on credit, or for future delivery, and upon such other
terms as the Lender may deem commercially reasonable. The Borrower agrees that,
to the extent notice of sale shall be required by law, at least ten days' notice
to the Borrower of the time and place of any public sale or the time after which
any private sale is to be made shall constitute reasonable notification. The
Lender shall not be obligated to make any sale of Collateral regardless of
notice of sale having been given. The Lender may adjourn any public or private
sale from time to time by announcement at the time and place fixed therefor,
and such sale may, without further notice, be made at the time and place to
which it was so adjourned.
(e) All cash proceeds received by the Lender in respect
of any sale of, collection from, or other realization upon all or any part of
the Collateral shall be applied in whole or in part by the Lender against, all
or any part of the Obligations in such order as the Lender shall elect. Any
surplus of such cash or cash proceeds held by the Lender and remaining after
the full and final payment of all the Obligations shall be paid over to the
Borrower or to such other Person to which the Lender may be required under
applicable law, or directed by a court of competent jurisdiction, to make
payment of such surplus.
SECTION 9. MISCELLANEOUS PROVISIONS.
SECTION 9.1. Notices. Except as otherwise provided
herein, all notices, approvals, consents, correspondence, or other
communications required or desired to be given hereunder shall be given in
writing and shall be delivered by overnight courier, hand delivery, or certified
or registered mail, postage prepaid, if to the Lender, then to Transamerica
Technology Finance Division, 00 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Assistant Vice President, Lease Administration,
with a copy to the Lender at Riverway II, West Office Tower, 0000 Xxxx
Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Legal Department, and if
to the Borrower, then to Aquila Biopharmaceuticals. Inc., 000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000, Attention: Vice
President - Finance or such other address as shall be designated by the
Borrower or the Lender to the other party in accordance herewith. All such
notices and correspondence shall be effective when received.
SECTION 9.2. Headings. The headings in this Agreement
are for purposes of reference only and shall not affect the meaning or
construction of any provision of this Agreement.
SECTION 9.3. Assignments. The Borrower shall not
have the right to assign any Note or this Agreement or any interest therein
unless the Lender shall have given the Borrower prior written consent and the
Borrower and its assignee shall have delivered assignment documentation in
form and substance satisfactory to the Lender in its sole discretion. The
Lender may assign its rights and delegate its obligations under any Note or this
Agreement.
SECTION 9.4. Amendments, Waivers, and Consents.
Any amendment or waiver of any provision of this Agreement and any
consent to any departure by the Borrower from any provision of this
Agreement shall be effective only by a writing signed by the Lender and shall
bind and benefit the Borrower and the Lender and their respective successors
and assigns, subject, in the case of the Borrower, to the first sentence of
Section 9.3.
SECTION 9.5. Interpretation of Agreement. Time is of
the essence in each provision of this Agreement of which time is an element.
All terms not defined herein or in a Note shall have the meaning set forth in
the applicable Code, except where the context otherwise requires. To the
extent a term or provision of this Agreement conflicts with any Note, or any
term or provision thereof, and is not dealt with herein with more specificity,
this Agreement shall control with respect to the subject matter of such term or
provision. Acceptance of or acquiescence in a course of performance rendered
under this Agreement shall not be relevant in determining the meaning of this
Agreement even though the accepting or acquiescing party had knowledge of
the nature of the performance and opportunity for objection.
SECTION 9.6. Continuing Security Interest. This Agreement shall create
a continuing security interest in the Collateral and shall
(i)remain in full force and effect until the indefeasible payment in full of the
Obligations, (ii) be binding upon the Borrower and its successors and assigns
and (iii) inure, together with the rights and remedies of the Lender hereunder,
to the benefit of the Lender and its successors, transferees, and assigns.
SECTION 9.7. Reinstatement. To the extent permitted by
law, this Agreement and the rights and powers granted to the Lender
hereunder and under the Loan Documents shall continue to be effective or be
reinstated if at any time any amount received by the Lender in respect of the
Obligations is rescinded or must otherwise be restored or returned by the
Lender upon the insolvency, bankruptcy, dissolution, liquidation, or
reorganization of the Borrower or upon the appointment of anv receiver,
intervenor, conservator, trustee, or similar official for the Borrower or any
substantial part of its assets, or otherwise, all as though such payments had
not been made.
SECTION 9.8. Survival of Provisions. All
representations, warranties, and covenants of the Borrower contained herein
shall survive the execution and delivery of this Agreement, and shall terminate
only upon the full and final payment and performance by the Borrower of the
Obligations secured hereby.
SECTION 9.9. Indemnification. The Borrower agrees to
indemnify and hold harmless the Lender and its directors, officers, agents,
employees, and counsel from and against any and all costs, expenses, claims,
or liability incurred by the Lender or such Person hereunder and under any
other Loan Document or in connection herewith or therewith, unless such
claim or liability shall be due to willful misconduct or gross negligence on the
part of the Lender or such Person.
SECTION 9.10. Counterparts; Telecopied Signatures.
This Agreement may be executed in counterparts, each of which when so
executed and delivered shall be an original, but both of which shall together
constitute one and the same instrument. This Agreement and each of the other
Loan Documents and any notices given in connection herewith or therewith
may be executed and delivered by telecopier or other facsimile transmission all
with the same force and effect as if the same was a fully executed and
delivered original manual counterpart.
SECTION 9.11. Severability. In case any provision in or
obligation under this Agreement or any Note or any other Loan Document
shall be invalid, illegal, or unenforceable in any jurisdiction, the validity,
legality, and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby,
SECTION 9.12. Delays; Partial Exercise of Remedies.
No delay or omission of the Lender to exercise any right or remedy hereunder,
whether before or after the happening of any Event of Default, shall impair
any such right or shall operate as a waiver thereof or as a waiver of any such
Event of Default. No single or partial exercise by the Lender of any right or
remedy shall preclude any other or further exercise thereof, or preclude any
other right or remedy.
SECTION 9.13. Entire Agreement. The Borrower and the
Lender agree that this Agreement, the Schedule hereto, and the Commitment
Letter are the complete and exclusive statement and agreement between the
parties with respect to the subject matter hereof, superseding all proposals and
prior agreements, oral or written, and all other communications between the
parties with respect to the subject matter hereof. Should there exist any
inconsistency between the terms of the Commitment Letter and this
Agreement, the terms of this Agreement shall prevail.
SECTION 9.14. Setoff. In addition to and not in limitation
of all rights of offset that the Lender may have under Applicable Law, and
whether or not the Lender has made any demand or the Obligations of the
Borrower have matured, the Lender shall have the right to appropriate and
apply to the payment of the Obligations of the Borrower all deposits and other
obligations then or thereafter owing by the Lender to or for the credit or the
account of the Borrower.
SECTION 9.15. WAIVER OF JURY TRIAL. THE
BORROWER AND THE LENDER IRREVOCABLY WAIVE ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 9.16. GOVERNING LAW. THE VALIDITY,
INTERPRETATION, AND ENFORCEMENT OF THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
SECTION 9.17. Venue; Service of Process. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF ILLINOIS SITUATED IN XXXX
COUNTY, OR OF THE UNITED STATES OF AMERICA FOR THE
NORTHERN DISTRICT OF ILLINOIS, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF
THE AFORESAID COURTS. THE BORROWER HEREBY
IRREVOCABLY WAIVES, IN CONNECTION WITH ANY SUCH
ACTION OR PROCEEDING, ANY OBJECTION, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, THAT IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH
RESPECTIVE JURISDICTIONS. THE BORROWER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE
BORROWER AT THE ADDRESS FOR IT SPECIFIED IN SECTION 9.1
HEREOF. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
LENDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS
OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY
OTHER JURISDICTION, SUBJECT IN EACH INSTANCE TO THE
PROVISIONS HEREOF WITH RESPECT TO RIGHTS AND REMEDIES.
IN WITNESS WHEREOF, the undersigned Borrower has caused
this Agreement to be duly executed and delivered by its proper and duly
authorized officer as of the date first set forth above.
AQUILA
BIOPHARMACEUTICALS, INC.
By:_________________________________
Name:
Title: President
Federal Tax ID:
Accepted as of the
____ day of July, 1998
TRANSAMERICA BUSINESS CREDIT CORPORATION
By:___________________________________________
Name:
Title:
