1
Exhibit 10.29
***Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17C.F.R.Sections 200.80(b)(4),
200.83 and 240.24b-2
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COULTER PHARMACEUTICAL, INC.
LOAN AND SECURITY AGREEMENT
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TABLE OF CONTENTS
PAGE
1. DEFINITIONS AND CONSTRUCTION.........................................................1
1.1 Definitions...................................................................1
1.2 Accounting Terms..............................................................7
2. LOAN AND TERMS OF PAYMENT............................................................7
2.1 Revolving Facility............................................................7
2.2 Interest Rate Protection......................................................8
2.3 Interest Rates, Payments, and Calculations....................................9
2.4 Crediting Payments...........................................................10
2.5 Fees.........................................................................10
2.6 Additional Costs.............................................................10
2.7 Term.........................................................................11
3. CONDITIONS OF LOANS.................................................................11
3.1 Conditions Precedent to Initial Advance......................................11
4. CREATION OF SECURITY INTEREST.......................................................12
4.1 Grant of Security Interest...................................................12
4.2 Delivery of Additional Documentation Required................................12
4.3 Right to Inspect.............................................................12
4.4 Requirement for Cash Collateral..............................................12
5. REPRESENTATIONS AND WARRANTIES......................................................13
5.1 Due Organization and Qualification...........................................13
5.2 Due Authorization, No Conflict...............................................13
5.3 No Prior Encumbrances........................................................13
5.4 Bona Fide Accounts...........................................................13
5.5 Merchantable Inventory.......................................................13
5.6 Name: Location of Chief Executive Office.....................................13
5.7 Litigation...................................................................13
5.8 No Material Adverse Change in Financial Statements...........................13
5.9 Solvency.....................................................................14
5.10 Regulatory Compliance........................................................14
5.11 Environmental Condition......................................................14
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TABLE OF CONTENTS
(CONTINUED)
PAGE
5.12 Taxes........................................................................14
5.13 Subsidiaries.................................................................14
5.14 Government Consents..........................................................15
5.15 Full Disclosure..............................................................15
6. AFFIRMATIVE COVENANTS...............................................................15
6.1 Good Standing................................................................15
6.2 Government Compliance........................................................15
6.3 Adverse Information..........................................................16
6.4 Financial Statements, Reports, Certificates..................................16
6.5 Inventory; Returns...........................................................17
6.6 Taxes........................................................................17
6.7 Insurance....................................................................17
6.8 Principal Depository.........................................................17
6.9 Total Liabilities-Net Worth Ratio............................................18
6.10 Tangible Net Worth...........................................................18
6.11 Minimum Liquidity; Remaining Months Liquidity; Debt Service Coverage.........18
6.12 Further Assurances...........................................................18
7. NEGATIVE COVENANTS..................................................................18
7.1 Dispositions.................................................................18
7.2 Change in Business...........................................................18
7.3 Mergers or Acquisitions......................................................18
7.4 Indebtedness.................................................................19
7.5 Encumbrances.................................................................19
7.6 Distributions................................................................19
7.7 Investments..................................................................19
7.8 Transactions with Affiliates.................................................19
7.9 Subordinated Debt............................................................19
7.10 Inventory....................................................................19
7.11 Compliance...................................................................19
8. EVENTS OF DEFAULT...................................................................20
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TABLE OF CONTENTS
(CONTINUED)
PAGE
8.1 Payment Default..............................................................20
8.2 Covenant Default.............................................................20
8.3 Material Adverse Change......................................................20
8.4 Attachment...................................................................20
8.5 Insolvency...................................................................21
8.6 Other Agreements.............................................................21
8.7 Subordinated Debt............................................................21
8.8 Judgments....................................................................21
8.9 Misrepresentations...........................................................21
8.10 FDA Determinations...........................................................21
8.11 Change of Control............................................................21
9. BANKS RIGHTS AND REMEDIES...........................................................21
9.1 Rights and Remedies..........................................................21
9.2 Power of Attorney............................................................23
9.3 Accounts Collection..........................................................23
9.4 Bank Expenses................................................................23
9.5 Bank's Liability for Collateral..............................................23
9.6 Remedies Cumulative..........................................................24
9.7 Demand; Protest..............................................................24
10. NOTICES.............................................................................24
11. CHOICE OF LAW AND VENUE JURY TRIAL WAIVER...........................................25
12. GENERAL PROVISIONS..................................................................25
12.1 Successors and Assigns.......................................................25
12.2 Indemnification..............................................................25
12.3 Time of Essence..............................................................25
12.4 Severability of Provisions...................................................25
12.5 Counterparts.................................................................26
12.6 Survival.....................................................................26
12.7 Confidentiality..............................................................26
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LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT is entered into as of October 29, 1998,
by and between SILICON VALLEY BANK ("Bank") and COULTER PHARMACEUTICAL, INC.
("Borrower").
RECITALS
Borrower wishes to obtain credit from time to time from Bank, and Bank
desires to extend credit to Borrower. This Agreement sets forth the terms on
which Bank will advance credit to Borrower, and Borrower will repay the amounts
owing to Bank.
AGREEMENT
The parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION.
1.1 DEFINITIONS. As used in this Agreement, the following terms
shall have the following definitions:
"ACCOUNTS" means all presently existing and hereafter arising
accounts, contract rights, and all other forms of obligations owing to Borrower
arising out of the sale or lease of goods (including, without limitation, the
licensing of software and other technology) or the rendering of services by
Borrower, whether or not earned by performance, and any and all credit
insurance, guaranties, and other security therefor, as well as all merchandise
returned to or reclaimed by Borrower and Borrower's Books relating to any of the
foregoing.
"ADVANCE" OR "ADVANCES" means cash advances under the Revolving
Facility.
"AFFILIATE" means, with respect to any Person, any Person that
owns or controls directly or indirectly such Person, any Person that controls or
is controlled by or is under common control with such Person, and each of such
Person's senior executive officers, directors and partners.
"BANK EXPENSES" means all: reasonable costs or expenses
(including reasonable attorneys' fees and expenses) incurred in connection with
the preparation, negotiation, administration, and enforcement of the Loan
Documents; and Bank's reasonable attorneys' fees and expenses incurred in
amending, enforcing or defending the Loan Documents, whether or not suit is
brought.
"BORROWER'S BOOKS" means all of Borrower's books and records
including: ledgers; records concerning Borrower's assets or liabilities, the
Collateral, business operations or financial condition; and all computer
programs, or tape files, and the equipment, containing such information.
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"BUSINESS DAY" means any day that is not a Saturday, Sunday, or
other day on which banks in the State of California are authorized or required
to close.
"CLOSING DATE" means the date of this Agreement.
"CODE" means the California Uniform Commercial Code.
"COLLATERAL" means the property described on Exhibit A attached
hereto.
"COMMITTED LOAN AMOUNT" means Ten Million Dollars ($10,000,000).
"CONTINGENT OBLIGATION" means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of that Person with
respect to (i) any indebtedness, lease, dividend, letter of credit or other
obligation of another, including, without limitation, any such obligation
directly or indirectly guaranteed, endorsed, co-made or discounted or sold with
recourse by that Person, or in respect of which that Person is otherwise
directly or indirectly liable; (ii) any obligations with respect to undrawn
letters of credit issued for the account of that Person; and (iii) all
obligations arising under any interest rate, currency or commodity swap
agreement, interest rote cap agreement, interest rate collar agreement, or other
agreement or arrangement designated to protect a Person against fluctuation in
interest rates, currency exchange rates or commodity prices; provided, however,
that the term "Contingent Obligation" shall not include endorsements for
collection or deposit in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determined amount of the primary obligation in respect of which such Contingent
Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by such Person in good
faith; provided, however, that such amount shall not in any event exceed the
maximum amount of the obligations under the guarantee or other support
arrangement.
"DAILY BALANCE" means the amount of the Obligations owed at the
end of a given day.
"DEBT SERVICE COVERAGE" means, as measured quarterly as of the
last day of each fiscal quarter of Borrower, on a consolidated basis determined
in accordance with GAAP, the ratio of(a) an amount equal to the sum of(i) net
income, plus (ii) depreciation, amortization of intangible assets and other
non-cash charges to income, and (iii) accrued interest, to (b) an amount equal
to the sum of all scheduled repayments for such quarter (or month, as
applicable), including accrued interest, and mandatory prepayments of principal
on account of long-term debt.
"EQUIPMENT" means all present and furore machinery, equipment,
tenant improvements, furniture, fixtures, vehicles, tools, parts and attachments
in which Borrower has any interest; provided, however, the term "Equipment"
shall not include any equipment related to Borrower's Bexxar technology.
"ERISA" means the Employment Retirement Income Security Act of
1974, as amended, and the regulations thereunder.
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"FDA" means the Food and Drug Administration of the United
States government, and any successor regulatory body.
"GAAP" means generally accepted accounting principles as in
effect from time to time. "GMP" has the meaning set forth in Section 6.2.
"INDEBTEDNESS" means (a) all indebtedness for borrowed money or
the deferred purchase price of property or services, including without
limitation reimbursement and other obligations with respect to surety bonds and
letters of credit, (b) all obligations evidenced by notes, bonds, debentures or
similar instruments, (e) all capital lease obligations and (d) all Contingent
Obligations.
"INSOLVENCY PROCEEDING" means any proceeding commenced by or
against any person or entity under any provision of the United States Bankruptcy
Code, as amended, or under any other bankruptcy or insolvency law, including
assignments for the benefit of creditors, formal or informal moratoria,
compositions, extension generally with its creditors, or proceedings seeking
reorganization, arrangement, or other relief.
"INVENTORY" means all present and future inventory in which
Borrower has any interest, including merchandise, raw materials, parts,
supplies, packing and shipping materials, work in process and finished products
intended for sale or lease or to be furnished under a contract of service, of
every kind and description now or at any time hereafter owned by or in the
custody or possession, actual or constructive, of Borrower, including such
inventory as is temporarily out of its custody or possession or in transit and
including any returns upon any accounts or other proceeds, including insurance
proceeds, resulting from the sale or disposition of any of the foregoing and any
documents of title representing any of the above, and Borrower's Books relating
to any of the foregoing; provided, however, the term "Inventory" shall not
include any Inventory related to Borrower's Bexxar technology.
"INVESTMENT" means any beneficial ownership of (including stock,
partnership interest or other securities) any Person, or any loan, advance or
capital contribution to any Person.
"IRC" means the Internal Revenue Code of 1986, as amended, and
the regulations thereunder.
"LIEN" means any mortgage, lien, deed of trust, charge, pledge,
security interest or other encumbrance.
"LIQUIDITY" means, at any date of determination, the sum of
Borrower's cash, cash equivalents, and short term investments, including (a)
fifty percent (50%) of net trade accounts receivable, and (b) up to one hundred
percent (100%) of accounts receivable due from certain of Borrower's corporate
partners as approved by Bank in Bank's sole discretion, and in such amounts as
approved by Bank in Bank's sole discretion, less any cash and cash equivalent
balances that are held in a sinking fund for the retirement of debt or capital
stock or that are held in pledge for another creditor.
3.
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"LOAN DOCUMENTS" means, collectively, this Agreement, any note
or notes executed by Borrower, and any other agreement entered into between
Borrower and Bank in connection with this Agreement, all as amended or extended
from time to time.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i)
the business operations or condition (financial or otherwise) of Borrower and
its Subsidiaries taken as a whole or (ii) the ability of Borrower to repay the
Obligations or otherwise perform its obligations under the Loan Documents.
"MATURITY DATE" means the date immediately preceding the fifth
(5th) anniversary of the date of this Agreement.
"NEGOTIABLE COLLATERAL" means all of Borrower's present and
future letters of credit of which it is a beneficiary, notes, drafts,
instruments, securities, documents of title, and chattel paper, and Borrower's
Books relating to any of the foregoing.
"NET CASH LOSSES" means, with respect to any date of
determination, determined on a consolidated basis in accordance with GAAP for
Borrower and its consolidated Subsidiaries, the reduction in cash from
operations (excluding non-recurring charges) during the three months prior to
such date of determination or if the date of determination is the last day of a
fiscal quarter, during the fiscal quarter then ending (or, if monthly reporting
is required pursuant to Section 6.4(c), during the three fiscal months ending
prior to such date of determination). For purposes of clarification and not
limitation, non-recurring charges to be excluded from the determination of the
reduction in cash from operations shall include, without limitation, (a) costs
and expenses in radiolabeling infrastructure in connection with the initial
build-out of up to three (3) facilities, as to which Borrower will provide
supporting invoices and documents upon Bank's request, (b) non-financed capital
expenditures and leasehold improvements at 600 Gateway, South San Francisco,
California, in conjunction with the initial build-out of the facility, and (c)
payments other than regularly scheduled payments of principal and interest under
this Agreement. Notwithstanding the foregoing, the annual production campaign
charges at BI Pharma and Lonza shall be included in the determination of the
reduction in cash from operations on a pro rata basis over the shelf-life of the
Inventory produced therefrom.
"OBLIGATIONS" means all debt, principal, interest, Bank Expenses
and other amounts owed to Bank by Borrower pursuant to this Agreement or any
other Loan Document, whether absolute or contingent, due or to become due, now
existing or hereafter arising, including any interest that accrues after the
commencement of an Insolvency Proceeding and including any debt, liability, or
obligation owing from Borrower to others that Bank may have obtained by
assignment or otherwise.
"PAYMENT DATE" means the 28th calendar day of each month during
the term of this Agreement.
"PERIODIC PAYMENTS" means all installments or similar recurring
payments that Borrower may now or hereafter become obligated to pay to Bank
pursuant to the terms and
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provisions of any instrument, or agreement now or hereafter in existence between
Borrower and Bank.
"PERMITTED INDEBTEDNESS" means:
(a) Indebtedness of Borrower in favor of Bank arising
under this Agreement or any other Loan Document;
(b) Indebtedness existing on the date of this Agreement
and disclosed in the Schedule;
(c) Indebtedness to trade creditors incurred in the
ordinary course of business;
(d) Subordinated Debt;
(e) Indebtedness of Borrower to any Subsidiary and
Contingent Obligations of any Subsidiary with respect to obligations of Borrower
(provided that the primary obligations are not prohibited hereby); Indebtedness
of any Subsidiary to any other Subsidiary and Contingent Obligations of any
Subsidiary with respect to obligations of any other Subsidiary (provided that
the primary obligations are not prohibited hereby); and Contingent Obligations
of the Borrower as a guarantor for obligations of its Subsidiaries that (i) are
existing on the date of this Agreement, or (ii) have been approved by Bank in
writing;
(f) Indebtedness secured by Permitted Liens;
(g) Capital leases or indebtedness incurred solely to
purchase equipment which is secured in accordance with clause (c) of "Permitted
Liens" below and is not in excess of the lesser of the purchase price of such
equipment or the fair market value of such equipment on the date of acquisition;
and
(h) Extensions, refinancings, modifications, amendments
and restatements of any of items of Permitted Indebtedness (a) through (g)
above, provided that the principal amount thereof is not increased or the terms
thereof are not modified to impose more burdensome terms upon Borrower or its
Subsidiary, as the case may be.
"PERMITTED INVESTMENT" means:
(a) Investments existing on the Date of this Agreement
disclosed in the Schedule;
(b) (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency or any
State thereof maturing within one (1) year from the date of acquisition thereof,
(ii) commercial paper maturing no more than one (1) year from the date of
creation thereof and currently having the highest rating obtainable from either
Standard & Poor's Corporation or Moody's Investors Service, Inc., and (iii)
certificates of deposit maturing no more than one (1) year from the date of
investment therein issued by Bank;
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(c) Investments accepted in connection with Transfers
permitted by Section 7.1; and
(d) Investments (whether consisting of the purchase of
securities, loans, capital contribution, or otherwise) of Borrower in
Subsidiaries and of Subsidiaries in or to other Subsidiaries or in Borrower.
"PERMITTED LIENS" means the following:
(a) Any Liens existing on the date of this Agreement and
disclosed in the Schedule or arising under this Agreement or the other Loan
Documents;
(b) Liens for taxes, fees, assessments or other
governmental charges or levies, either not delinquent or being contested in good
faith by appropriate proceedings, provided the same have no priority over any of
Bank's security interests, except as provided under applicable law;
(c) Liens (i) upon or in any equipment acquired or held
by Borrower or any of its Subsidiaries to secure the purchase price of such
equipment or indebtedness incurred solely for the purpose of financing the
acquisition of such equipment, or (ii) existing on such equipment at the time of
its acquisition, provide that the Lien is confined solely to the property so
acquired and improvements thereon, and the proceeds of such equipment;
(d) Leases or subleases and license and sublicenses
granted to others in the ordinary course of Borrower's business not interfering
in any material respect with the business of Borrower and its Subsidiaries taken
as a whole, and any interest or title of a lessor, licensor or under any lease
or license provided that such leases, subleases, licenses and sublicenses do not
prohibit the grant of the security interest granted hereunder; and
(e) Liens upon intellectual property, including, without
limitation, copyrights, patents, trademarks or any licenses thereof, granted to
others in connection with collaboration, partnering and similar agreements
entered into in the ordinary course of Borrower's business.
"PERSON" means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint
stock company, estate, entity or governmental agency.
"PRIME RATE" means the variable rate of interest, per annum,
most recently announced by Bank, as its "prime rate," whether or not such
announced rate is the lowest rate available from Bank.
"REMAINING MONTHS LIQUIDITY" OR "RML" means, at the end of each
fiscal quarter, or if monthly reporting is required pursuant to Section 6.4(c),
as at the end of each calendar month, the ratio of (i) Liquidity at such time to
(ii) the monthly average of Net Cash Losses.
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"RESPONSIBLE OFFICER" means each of the Chief Executive Officer,
the Chief Financial Officer and the Controller of Borrower.
"REVOLVING FACILITY" means the facility under which Borrower may
request cash advances as specified in Section 2.1.
"REVOLVING FACILITY AVAILABILITY DATE" means the date
immediately preceding the first (1st) anniversary of the date of this Agreement.
"SCHEDULE" means the schedule of exceptions attached hereto, if
any.
"SUBORDINATED DEBT" means any debt incurred by Borrower that is
subordinated to the debt owing by Borrower to Bank on terms reasonably
acceptable to Bank (and identified as being such by Borrower and Bank), and in
connection with which Bank and such subordinated third party has entered into a
subordination agreement in form and substance reasonably acceptable to Bank.
"SUBSIDIARY" means any corporation or partnership in which (i)
any general partnership interest or (ii) more than 50% of the stock of which by
the terms thereof ordinary voting power to elect the Board of Directors,
managers or trustees of the entity shall, at the time as of which any
determination is being made, be owned by Borrower, either directly or through an
Affiliate.
"TANGIBLE NET WORTH" means at any date as of which the amount
thereof shall be determined, the consolidated total assets of Borrower and its
Subsidiaries minus, without duplication, (i) the sum of any amounts attributable
to (a) goodwill, (b) intangible items such as unamortized debt discount and
expense, patents, trade and service marks and names, copyrights and research and
development expenses except prepaid expenses, and (c) all reserves not already
deducted from assets, and (ii) Total Liabilities.
"TOTAL LIABILITIES" means at any date as of which the amount
thereof shall be determined, all obligations that should, in accordance with
GAAP be classified as liabilities on the consolidated balance sheet of Borrower,
including in any event all Indebtedness, but specifically excluding Subordinated
Debt.
1.2 ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP and all calculations
made hereunder shall be made in accordance with GAAP. When used herein, the
terms "financial statements" shall include the notes and schedules thereto.
2. LOAN AND TERMS OF PAYMENT.
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2.1 REVOLVING FACILITY.
(a) ADVANCES. Subject to and upon the terms and
conditions of this Agreement, following the Closing Date through the Revolving
Facility Availability Date, Bank agrees to make Advances to Borrower in an
aggregate amount not to exceed the Committed Loan Amount for the purpose of
financing capital expenditures and for general working capital. Subject to the
terms and conditions of this Agreement, amounts borrowed pursuant to this
Section 2.1 may be repaid and reborrowed at any time prior to the Revolving
Facility Availability Date, at which time all outstanding Obligations under the
Revolving Facility shall convert to a fully amortized term loan, payable as set
forth in Section 2.3(c) below.
(b) PROCEDURES. Following the Closing Date through the
Revolving Facility Availability Date, whenever Borrower desires an Advance,
Borrower shall notify Bank by facsimile transmission or telephone no later than
3:00 p.m. California time, one (1) Business Day before the day on which the
Advance is requested to be made. Each such notification shall be promptly
confirmed by a Payment/Advance Form in substantially the form of Exhibit B
hereto and signed by a Responsible Officer. Bank is authorized to make Advances
under this Agreement, based upon instructions received from a Responsible
Officer, or without instructions if in Bank's discretion such Advances are
necessary to meet Obligations which have become due and remain unpaid. Bank
shall be entitled to rely on any telephonic notice given by a person who Bank
reasonably believes to be a Responsible Officer, and Borrower shall indemnify
and hold Bank harmless for any damages or loss suffered by Bank as a result of
such reliance. Bank will credit the amount of Advances made under this Section
2.1 to Borrower's deposit account.
(c) INTEREST AND PRINCIPAL. Interest shall accrue from
the date of each Advance at the rate specified in Section 2.3(a), and shall be
payable monthly on the Payment Date for each month through the month in which
the Maturity Date falls. Bank shall, at its option, charge such interest, all
Bank Expenses, and all Periodic Payments against any of Borrower's deposit
accounts, including account number ____________________, or against the
Committed Loan Amount, in which case those amounts shall thereafter accrue
interest at the rate then applicable hereunder. Any interest not paid when due
shall be compounded by becoming a part of the Obligations, and such interest
shall thereafter accrue interest at the rate then applicable hereunder.
(d) MATURITY. Borrower may only request Advances under
the Revolving Facility following the Closing Date through the Revolving Facility
Availability Date, at which time the Revolving Facility shall terminate and all
outstanding Obligations under the Revolving Facility shall convert to a term
loan. On the Maturity Date, all Obligations owing under this Section 2.1 and all
other Obligations Borrower owes to Bank under this Agreement shall be
immediately due and payable.
2.2 INTEREST RATE PROTECTION. Subject to the terms and condition
of this Agreement, Borrower may prepay the Advances, in whole or in part, only
upon payment in full of (i) all accrued but unpaid interest and all outstanding
obligations hereunder (or, if partial prepayment, an applicable or proportionate
amount of such obligations), and (ii), if Borrower has elected the fixed rate
option set forth in Section 2.3(a), a fee as shall be determined by Bank in its
reasonable discretion in an amount reasonably necessary to provide for interest
rate protection in the event the fixed interest rate set forth in Section 2.3(a)
is higher than the then current fixed rate.
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2.3 INTEREST RATES, PAYMENTS, AND CALCULATIONS.
(a) INTEREST RATE. Except as set forth in Section
2.3(b), from and after the Closing Date through the Revolving Facility
Availability Date, the Advances shall bear interest, on the average daily
balance thereof, at a rate equal to one-half of one (.50) percentage point above
the Prime Rate. Following the Revolving Facility Availability Date through the
Maturity Date, the Advances shall bear interest, on the average daily balance
thereof, at a rate equal to, at Borrower's election, either (i) one-half of one
(.50) percentage point above the Prime Rate, OR (ii) three and three-quarters
(3.75) percentage points above the yield of the 48 month Treasury Note as
reported in the Western edition of The Wall Street Journal, which rate shall be
fixed at the time of Borrower's election. Borrower shall give written notice to
Bank of its interest rate election at any time following the Closing Date but no
later than two (2) Business Days prior to the Revolving Facility Availability
Date of its interest rate election hereunder. If Borrower fails to give such
notice, then the applicable rate shall be the fixed rate option described
herein.
(b) DEFAULT RATE. All Obligations shall bear interest,
from and after the occurrence and during the continuance of an Event of Default,
at a rate equal to five (5) percentage points above the interest rate applicable
immediately prior to the occurrence of the Event of Default.
(c) PAYMENTS. Interest hereunder shall be due and
payable on the Payment Date of each month during the term hereof through the
month in which the Maturity Date falls. Borrower shall make payments of interest
only from and after the Closing Date through the Revolving Facility Availability
Date. Following the Revolving Facility Availability Date, Borrower shall, (i)
with respect to the fixed rate option, make payments of principal and interest
to Bank in forty-eight (48) equal monthly installments of principal and accrued
interest, with a final balloon payment of principal plus accrued interest, based
on a seven (7) year amortization schedule, which shall be due and payable on the
Payment Date of each month during the term hereof, and (ii) with respect to the
floating rate option, make payments to Bank in forty-eight (48) equal monthly
installments of principal plus accrued interest, based on a seven (7) year
amortization schedule, which shall be due and payable on the Payment Date of
each month during the term hereof. Borrower's final payment, due on the Maturity
Date, shall include all outstanding Advances under the Revolving Facility as
converted to a term loan following the Revolving Facility Availability Date, of
principal plus all accrued interest not yet paid. Bank shall, at its option,
charge such interest, principal, all Bank Expenses, and all Periodic Payments
against any of Borrower's deposit accounts, including Account Number
_________________ in which case those amounts shall thereafter accrue interest
at the rate then applicable hereunder. Any interest not paid when due shall be
compounded by becoming a part of the Obligations, and such interest shall
thereafter accrue interest at the rate then applicable hereunder.
(d) COMPUTATION. In the event the Prime Rate is changed
from time to time hereafter, the applicable rate of interest hereunder shall be
increased or decreased effective as of 12:01 a.m. on the day the Prime Rate is
changed, by an amount equal to such change in the Prime Rate. All interest
chargeable under the Loan Documents shall be computed on the basis of a three
hundred sixty (360) day year for the actual number of days elapsed.
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Notwithstanding the foregoing, this Section 2.3(d) shall not apply in the event
the Borrower elects the fixed rate option as set forth in Section 2.3(a).
2.4 CREDITING PAYMENTS. Prior to the occurrence and during the
continuance of an Event of Default, Bank shall credit a wire transfer of funds,
check or other item of payment to such deposit account or Obligation as Borrower
specifies. After the occurrence and during the continuance of an Event of
Default, the receipt by Bank of any wire transfer of funds, check, or other
similar item for the purpose of payment of Obligations shall be immediately
applied to conditionally reduce Obligations, but shall not be considered a
payment on account unless such payment is of immediately available federal funds
or unless and until such check or other item of payment is honored when
presented for payment. Notwithstanding anything to the contrary contained
herein, any wire transfer or payment received by Bank after 12:00 noon
California time shall be deemed to have been received by Bank as of the opening
of business on the immediately following Business Day. Whenever any payment to
Bank under the Loan Documents would otherwise be due (except by reason of
acceleration) on a date that is not a Business Day, such payment shall instead
be due on the next Business Day, and additional fees or interest, as the case
may be, shall accrue and be payable for the period of such extension.
2.5 FEES. Borrower shall pay to Bank the following:
(a) FACILI1Y FEE. A Facility Fee equal to Thirty-Seven
Thousand Five Hundred Dollars ($37,500), which fee shall be due and payable on
the Closing Date, and shall be fully earned and nonrefundable;
(b) FINANCIAL EXAMINATION AND APPRAISAL FEES. Bank's
customary fees and out-of-pocket expenses for Bank's audits of Borrower's
Accounts, and for each appraisal of Collateral and financial analysis and
examination of Borrower performed from time to time by Bank or its agents
provided that such audits, appraisals, analyses and examinations shall occur no
more frequently than two (2) times per fiscal year if there is no Event of
Default or continuing Event of Default; and
(c) BANK EXPENSES. Upon the date hereof, all Bank
Expenses incurred through the Closing Date, including reasonable attorneys' fees
and expenses (not to exceed Seven Thousand Five Hundred Dollars ($7,500) prior
to the Closing Date), and, after the date hereof, all Bank Expenses, including
reasonable attorneys' fees and expenses as and when they become due; provided,
however, Borrower shall be responsible for fifty percent (50%) of all such
attorneys' fees and expenses incurred prior to the Closing Date in excess of
Seven Thousand Five Hundred Dollars ($7,500).
2.6 ADDITIONAL COSTS. In case any change in any law, regulation,
treaty or official directive or the interpretation or application thereof by any
court or any governmental authority charged with the administration thereof or
the compliance with any guideline or request of any central bank or other
governmental authority (whether or not having the force of law), in each case
after the date of this Agreement:
(a) subjects Bank to any tax with respect to payments of
principal or interest or any other amounts payable hereunder by Borrower or
otherwise with respect to the
10.
15
transactions contemplated hereby (except for taxes on the overall net income of
Bank imposed by the United States of America or any political subdivision
thereof);
(b) imposes, modifies or deems applicable any deposit
insurance, reserve, special deposit or similar requirement against assets held
by, or deposits in or for the account of, or loans by, Bank; or
(c) imposes upon Bank any other condition with respect
to its performance under this Agreement,
and the result of any of the foregoing is to increase the cost to Bank, reduce
the income receivable by Bank or impose any expense upon Bank with respect to
any loans, Bank shall notify Borrower thereof. Borrower agrees to pay to Bank
the amount of such increase in cost, reduction in income or additional expense
as and when such cost,
reduction or expense is incurred or determined, upon presentation by Bank of a
statement of the amount and setting forth Bank's calculation thereof, all in
reasonable detail which statement shall be deemed true and correct absent
manifest error.
2.7 TERM. This Agreement shall become effective on the Closing
Date and, subject to Section 12.6, shall continue in full force and effect for a
term ending on the Maturity Date. Notwithstanding the foregoing, Bank shall have
the right to terminate its obligation to make the Advances under this Agreement
immediately and without notice upon the occurrence and during the continuance of
an Event of Default. Notwithstanding termination, Bank's Lien on the Collateral
shall remain in effect for so long as any Obligations (other than inchoate
indemnity obligations) are outstanding.
3. CONDITIONS OF LOANS.
3.1 CONDITIONS PRECEDENT TO INITIAL ADVANCE. The obligation of
Bank to make the initial Advance is subject to the conditions precedent that:
(a) Bank shall have received, in form and substance
satisfactory to Bank, the following:
(i) this Agreement;
(ii) a certificate of the Secretary of Borrower
with respect to incumbency and resolutions authorizing the execution and
delivery of this Agreement;
(iii) financing statements (Forms UCC-1);
(iv) insurance certificate;
(v) payment of the fees and Bank Expenses then
due specified in Section 2.5 hereof,
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(vi) timely receipt of the Payment/Advance Form
as provided in Section 2.1;
(vii) such other documents, and completion of
such other matters, as Bank may reasonably deem necessary or appropriate; and
(b) the representations and warranties contained in
Section 5 shall be true and correct in all material respects on and as of the
date of the Payment/Advance Form and on the effective date of each of the
Advances, except to the extent such representations and warranties are made as
of a specific date, in which case they shall have been accurate on such date,
and no Event of Default shall have occurred and be continuing, or would result
from each of the Advances. Except as other-wise disclosed to Bank in writing,
the making of each of the Advances shall be deemed to be a representation and
warranty by Borrower on the date of each of the Advances as to the accuracy of
the facts referred to in this Section 3.1(b).
4. CREATION OF SECURITY INTEREST.
4.1 GRANT OF SECURITY INTEREST. Borrower grants and pledges to
Bank a continuing security interest in all presently existing and hereafter
acquired or arising Collateral in order to secure prompt repayment of any and
all Obligations and in order to secure prompt performance by Borrower of each of
its covenants and duties under the Loan Documents. Except as set forth in the
Schedule, such security interest constitutes a valid, first priority security
interest in the presently existing Collateral, and will constitute a valid,
first priority security interest in Collateral acquired after the date hereof.
4.2 DELIVERY OF ADDITIONAL DOCUMENTATION REQUIRED. Borrower
shall from time to time execute and deliver to Bank, at the request of Bank, all
Negotiable Collateral, all financing statements and other documents that Bank
may reasonably request, in form satisfactory to Bank, to perfect and continue
perfected Bank's security interests in the Collateral and in order to fully
consummate all of the transactions contemplated under the Loan Documents.
4.3 RIGHT TO INSPECT. Bank (through any of its officers,
employees, or agents) shall have the right, upon reasonable prior notice, from
time to time during Borrower's usual business hours, to inspect Borrower's Books
and to make copies thereof and to check, test, and appraise the Collateral in
order to verify Borrower's financial condition or the amount, condition of, or
any other matter relating to, the Collateral; provided, however, such rights
under this Section 4.3 shall be exercised at Bank's own expense unless an Event
of Default has occurred or is continuing at which time such costs and expenses
shall be Borrower's responsibility.
4.4 REQUIREMENT FOR CASH COLLATERAL. Upon Borrower's failure to
comply with the financial covenants in Sections 6.8, 6.9, 6.10 and 6.11 the
Borrower shall pledge cash in the form of a certificate of deposit at Silicon
Valley Bank, on terms reasonably acceptable to Bank, in an amount equal to one
hundred percent (100%) of the outstanding loan balances, at which time Borrower
shall be deemed to have cured the default under Sections 6.8, 6.9, 6. 10 and
6.11. Notwithstanding the foregoing, Bank shall have no obligation to release
the cash pledged pursuant to this Section 4.4(a) unless and until Borrower
achieves compliance with all
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the terms of the Loan Documents, cures any Events of Default and complies with
the financial covenants set forth in Sections 6.8, 6.9, 6.10 and 6.11.
5. REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants as follows:
5.1 DUE ORGANIZATION AND QUALIFICATION. Borrower and each
Subsidiary is a corporation duly existing and in good standing under the laws of
its state of incorporation and qualified and licensed to do business in, and is
in good standing in, any state in which the conduct of its business or its
ownership of property requires that it be so qualified, except to the extent
that failure to so qualify would not have a Material Adverse Effect on Borrower.
5.2 DUE AUTHORIZATION, NO CONFLICT. The execution, delivery, and
performance of the Loan Documents are within Borrower's powers, have been duly
authorized, and are not in conflict with nor constitute a breach of any
provision contained in Borrower's Articles of Incorporation or Bylaws, nor will
they constitute an event of default under any material agreement to which
Borrower is a party or by which Borrower is bound. Borrower is not in default
under any agreement to which it is a party or by which it is bound, which
default could have a Material Adverse Effect.
5.3 NO PRIOR ENCUMBRANCES. Borrower has good and indefeasible
title to the Collateral, free and clear of Liens, except for Permitted Liens.
5.4 BONA FIDE ACCOUNTS. The Accounts are bona fide existing
obligations. The property giving rise to such Accounts has been delivered to the
account debtor or to the account debtor's agent or as otherwise instructed by
the account debtor for immediate shipment to and unconditional acceptance by the
account debtor. Borrower has not received notice of actual or imminent
Insolvency Proceeding of any account debtor.
5.5 MERCHANTABLE INVENTORY. All Inventory, net of reserves in
accordance with GAAP, is in all material respects of good and marketable
quality, free from all material defects.
5.6 NAME: LOCATION OF CHIEF EXECUTIVE OFFICE. Except as
disclosed in the Schedule, Borrower has not done business under any name other
than that specified on the signature page hereof. The chief executive office of
Borrower is located at the address indicated in Section 10 hereof.
5.7 LITIGATION. Except as set forth in the Schedule, there are
no actions or proceedings pending by or against Borrower or any Subsidiary
before any court or administrative agency in which an adverse decision could
reasonably be expected to have a Material Adverse Effect or a material adverse
effect on Borrower's interest or Bank's security interest in the Collateral.
Borrower does not have knowledge of any such pending or threatened actions or
proceedings.
5.8 NO MATERIAL ADVERSE CHANGE IN FINANCIAL STATEMENTS. All
consolidated financial statements related to Borrower and any Subsidiary that
have been
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delivered by Borrower to Bank fairly present in all material respects Borrower's
consolidated financial condition as of the date thereof and Borrower's
consolidated results of operations for the period then ended. There has not been
a material adverse change in the consolidated financial condition of Borrower
since the date of the most recent of such financial statements submitted to
Bank.
5.9 SOLVENCY. The fair salable value of Borrower's assets
(including goodwill minus disposition costs) exceeds the fair value of its
liabilities; Borrower is not left with unreasonably small capital after the
transactions contemplated by this Agreement; and Borrower is able to pay its
respective debts (including trade debts) as they mature.
5.10 REGULATORY COMPLIANCE. Borrower and each domestic
Subsidiary have met the minimum funding requirements of ERISA with respect to
any employee benefit plans subject to ERISA. No event has occurred resulting
from Borrower's failure to comply with ERISA that is reasonably likely to result
in Borrower's incurring any liability that could have a Material Adverse Effect.
Borrower is not an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940.
Borrower is not engaged principally, or as one of the important activities, in
the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulations T and U of the Board of
Governors of the Federal Reserve System). Borrower has complied with all the
provisions of the Federal Fair Labor Standards Act and Borrower has not violated
any statutes, laws, ordinances or rules applicable to it, noncompliance with or
which violation of which could reasonably be expected to have a Material Adverse
Effect.
5.11 ENVIRONMENTAL CONDITION. Except as disclosed on the
Schedule, none of Borrower's or any Subsidiary's properties or assets has ever
been used by Borrower or any Subsidiary or, to the best of Borrower's knowledge,
by previous owners or operators, in the disposal of, or to produce, store,
handle, treat, release, or transport, any hazardous waste or hazardous substance
other than in accordance with applicable law; to the best of Borrower's
knowledge, none of Borrower's properties or assets has ever been designated or
identified in any manner pursuant to any environmental protection statute as a
hazardous waste or hazardous substance disposal site, or a candidate for closure
pursuant to any environmental protection statute; no lien arising under any
environmental protection statute has attached to any revenues or to any real or
personal property owned by Borrower or any Subsidiary; and neither Borrower nor
any Subsidiary has received a summons, citation, notice, or directive from the
Environmental Protection Agency or any other federal, state or other
governmental agency concerning any action or omission by Borrower or any
Subsidiary resulting in the releasing, or otherwise disposing of hazardous waste
or hazardous substances into the environment.
5.12 TAXES. Borrower and each Subsidiary have filed or caused to
be filed all tax returns required to be filed, and has paid, or has made
adequate provision for the payment of, all taxes reflected therein, except for
taxes the amount or validity of which the Borrower is contesting in good faith
by appropriate proceedings and with respect to which the Borrower has taken
adequate reserves in accordance with GAAP.
5.13 SUBSIDIARIES. Borrower does not own any stock, partnership
interest or other equity securities of any Person, except for Permitted
Investments.
14.
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5.14 GOVERNMENT CONSENTS. Borrower and each Subsidiary have
obtained all consents, approvals and authorizations of, made all declarations or
filings with, and given all notices to, all governmental authorities that are
necessary for the continued operation of Borrower's business as currently
conducted. Except as disclosed in writing to Bank, Borrower has not been denied
an Investigational New Drug status nor has any application for New Drug Approval
been denied, nor has Borrower received any information indicating that the FDA
is unlikely to issue an approval letter in response to such application for any
products material to Borrower's business.
5.15 FULL DISCLOSURE. No representation, warranty or other
statement made by Borrower in any certificate or written statement furnished to
Bank contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained in such
certificates or statements not misleading.
6. AFFIRMATIVE COVENANTS.
Borrower covenants and agrees that, until payment in full of all
outstanding Obligations, and for so long as Bank may have any commitment to make
an Advance hereunder, Borrower shall do all of the following:
6.1 GOOD STANDING. Borrower shall maintain its and each of its
Subsidiaries' corporate existence and good standing in its jurisdiction of
incorporation and maintain qualification in each jurisdiction in which the
failure to so qualify could reasonably be expected to have a Material Adverse
Effect. Borrower shall maintain, and shall cause each of its Subsidiaries to
maintain; to the extent consistent with prudent management of Borrower's
business, in force all licenses, approvals and agreements, the loss of which
could reasonably be expected to have a Material Adverse Effect.
6.2 GOVERNMENT COMPLIANCE.
(a) ERISA. Borrower shall meet, and shall cause each
Subsidiary to meet, the minimum funding requirements of ERISA with respect to
any employee benefit plans subject to ERISA.
(b) FDA. To the extent required by law, Borrower shall
cause its, and each of its Subsidiaries', manufacturing and quality control to
conform in all material respects to FDA Good Manufacturing Practices ("GMP")
regulations and such other regulations applicable to Borrower and its
Subsidiaries with respect to advertising, labeling and reporting, product
testing, design, safety and labeling of products except where the failure to so
conform is not reasonably likely to have a Material Adverse Effect. To the
extent necessary to the conduct of its and its Subsidiaries' business, Borrower
shall register, and shall cause each of its Subsidiaries to register, with the
Food and Drug Branch of the California Department of Health Services and the
FDA, and Borrower shall register its, and shall cause each of its Subsidiaries
to register their, manufacturing facilities in accordance with GMP regulations.
(c) STATUTORY COMPLIANCE. Borrower shall comply, and
shall cause each Subsidiary to comply, with all statutes, laws, ordinances and
government rules and regulations to which it is subject, noncompliance with
which is reasonably likely to have a
15.
20
Material Adverse Effect, including without limitation, compliance in all
material respects with the Federal Food, Drug, and Cosmetics Act, the
Occupational Safety and Health Act, the Environmental Protection Act, the Toxic
Substances Control Act, and all other applicable federal, state and local laws,
orders and regulations.
6.3 ADVERSE INFORMATION. Borrower shall immediately notify Bank
upon receipt of any information that indicates that (a) the FDA has denied, or
has stated that it is likely to deny, any of Borrower's, or its Subsidiaries',
Investigational New Drug Applications or New Product Application, (b) Borrower
or a Subsidiary has elected not to proceed with clinical trials for any of
Borrower's or Subsidiary's products for which Borrower or any Subsidiary has
filed an Investigational New Drug Application with the FDA, or (c) the FDA or
other governmental agency has advised Borrower that it found material
deficiencies in Borrower's or a Subsidiary's compliance with applicable
regulations.
6.4 FINANCIAL STATEMENTS, REPORTS, CERTIFICATES.
(a) Borrower shall deliver to Bank: (a) as soon as
available, but in any event within thirty (30) days after the end of each fiscal
quarter, or within five (5) days of filing with the Securities and Exchange
Commission, a company prepared balance sheet and income statement covering
Borrower's consolidated operations during such period, in a form certified by an
officer of Borrower reasonably acceptable to Bank; (b) as soon as available, but
in any event within ninety (90) days after the end of Borrower's fiscal year, or
within five (5) days of filing with the Securities and Exchange Commission,
audited consolidated financial statements of Borrower prepared in accordance
with GAAP, consistently applied, together with an unqualified opinion on such
financial statements of an independent certified public accounting firm
reasonably acceptable to Bank; (c) within ten (10) days upon becoming available,
copies of all statements, reports and notices sent or made available generally
by Borrower to its security holders or to any holders of Subordinated Debt and
all reports on Form 10-K and 10-Q filed with the Securities and Exchange
Commission; and (d) promptly upon receipt of notice thereof, a report of any
legal actions pending or threatened against Borrower that could reasonably be
expected to result in damages or costs to Borrower of Two Hundred Fifty Thousand
Dollars ($250,000) or more; and (e) such budgets, sales projections, operating
plans or other financial information as Bank may reasonably request from time to
time.
(b) Borrower shall deliver to Bank with the quarterly
financial statements (or monthly financial statements if required under Section
6.4(c) below), a Compliance Certificate signed by a Responsible Officer in
substantially the form of Exhibit Q hereto.
(c) If Borrower's Liquidity is (i) less than the product
of the amount of outstanding Obligations under this Agreement at any given time
multiplied by two and one-half (2.5) (the "Liquidity Multiple"), or (ii) the
Remaining Months Liquidity falls below twelve (12) months, Borrower shall
deliver to Bank, within thirty (30) days after the last day of each calendar
month, a company prepared consolidated balance sheet and income statement
covering Borrower's consolidated operations for the relevant month. At such
time, and only so long as, Borrower's minimum Liquidity is less than the
Liquidity Multiple and Remaining Months Liquidity is less than twelve (12)
months, (i) monthly reporting shall continue under this Section
16.
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6.4(c), and (ii) the minimum Liquidity and Remaining Months Liquidity covenants
under Section 6.11 below shall be measured as of the last day of each calendar
month.
6.5 INVENTORY; RETURNS. Borrower shall keep all Inventory in
good and marketable condition, free from all material defects. Returns and
allowances, if any, as between Borrower and its account debtors shall be on the
same basis and in accordance with the usual customary practices of Borrower, as
they exist at the time of the execution and delivery of this Agreement. Borrower
shall promptly notify Bank of all returns and recoveries and of all disputes and
claims, where the return, recovery, dispute or claim involves more than One
Hundred Thousand Dollars ($ 100,000).
6.6 TAXES. Borrower shall make, and shall cause each Subsidiary
to make, due and timely payment or deposit of all material federal, state, and
local taxes, assessments, or contributions required of it by law, and will
execute and deliver to Bank, on demand, appropriate certificates attesting to
the payment or deposit thereof, and Borrower will make, and will cause each
Subsidiary to make, timely payment or deposit of all material tax payments and
withholding taxes required of it by applicable laws, including, but not limited
to, those laws concerning F.I.C.A., F.U.T.A., state disability, and local,
state, and federal income taxes, and will, upon request, furnish Bank with proof
satisfactory to Bank indicating that Borrower or a Subsidiary has made such
payments or deposits; provided that Borrower or a Subsidiary need not make any
payment if the amount or validity of such payment is contested in good faith by
appropriate proceedings and is reserved against (to the extent required by GAAP)
by Borrower.
6.7 INSURANCE.
(a) Borrower, at its expense, shall keep the Collateral
insured against loss or damage by fire, theft, explosion, sprinklers, and all
other hazards and risks, and in such amounts, as ordinarily insured against by
other owners in similar businesses conducted in the locations where Borrower's
business is conducted on the date hereof. Borrower shall also maintain insurance
relating to Borrower's ownership and use of the Collateral in amounts and of a
type that are customary to businesses similar to Borrower's. Nothing herein
shall be construed as requiring the Borrower to maintain credit insurance with
respect to its accounts receivable.
(b) All such policies of insurance shall be in such
form, with such companies and in such amounts as are reasonably satisfactory to
Bank. All such policies of property insurance shall contain a lender's loss
payable endorsement, in a form reasonably satisfactory to Bank, showing Bank as
an additional loss payee thereof and all liability insurance policies shall show
the Bank as an additional insured, and shall specify that the insurer must give
at least twenty (20) days notice to Bank before canceling its policy for any
reason. Upon Bank's request, Borrower shall deliver to Bank certified copies of
such policies of insurance and evidence of the payments of all premiums
therefor. All proceeds payable under any such policy shall, at the option of
Bank, be payable to Bank to be applied on account of the Obligations.
6.8 PRINCIPAL DEPOSITORY. Borrower shall maintain its principal
depository and operating accounts with Bank. Borrower shall maintain a minimum
of Five Million Dollars ($5,000,000) in a Bonus Money Market Account with Bank
for a minimum period commencing on the Closing Date through the Revolving
Facility Availability Date.
17.
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6.9 TOTAL LIABILITIES-NET WORTH RATIO. Borrower shall maintain,
as of the last day of each fiscal quarter during the term of this Agreement, a
ratio of Total Liabilities less Subordinated Debt to Tangible Net Worth plus
Subordinated Debt of not more than [...***...].
6.10 TANGIBLE NET WORTH. Borrower shall maintain, as of the last
day of each fiscal quarter during the term of this Agreement, a Tangible Net
Worth of not less than [...***...] Dollars ($[...***....]).
6.11 MINIMUM LIQUIDITY; REMAINING MONTHS LIQUIDITY; DEBT SERVICE
COVERAGE. Subject to the remainder of this section, Borrower shall maintain, as
of the last day of each of fiscal quarter, (i) a minimum Liquidity of
[...***...] the amount of Obligations under this Agreement, and (ii) Remaining
Months Liquidity of at least [...***...]. Notwithstanding the foregoing, from
and after the time Borrower achieves a Debt Service Coverage for [...***...] of
at least [...***...], and for so long as Borrower maintains as of the last day
of each fiscal quarter thereafter, a Debt Service Coverage of at least
[...***...], Borrower shall not be subject to the minimum required Liquidity and
Remaining Months Liquidity requirements set forth above.
6.12 FURTHER ASSURANCES. At any time and from time to time
Borrower shall execute and deliver such further instruments and take such
further action as may reasonably be requested by Bank to effect the purposes of
this Agreement.
7. NEGATIVE COVENANTS.
Borrower covenants and agrees that, so long as any credit
hereunder shall be available and until payment in full of the outstanding
Obligations or for so long as Bank may have any commitment to make any Advances,
Borrower will not do any of the following:
7.1 DISPOSITIONS. Convey, sell, lease, transfer or otherwise
dispose of (collectively, a "Transfer"), or pen-nit any of its Subsidiaries to
Transfer, all or any part of its business or property, other than Transfers: (i)
of inventory in the ordinary course of business, (ii) of non-exclusive licenses
and similar arrangements for the use of the property of Borrower or its
Subsidiaries in the ordinary course of business, (iii) Transfers of worn- or
obsolete Equipment.
7.2 CHANGE IN BUSINESS. Engage in any business, or permit any of
its Subsidiaries to engage in any business, other than the businesses currently
engaged in by Borrower and any business substantially similar or related thereto
(or incidental thereto). Borrower will not, without thirty (30) days prior
written notification to Bank, relocate its chief executive office.
7.3 MERGERS OR ACQUISITIONS. Merge or consolidate, or permit any
of its Subsidiaries to merge or consolidate, with or into any other business
organization, or acquire, or permit any of its Subsidiaries to acquire, all or
substantially all of the capital stock or property of another Person; provided
that this Section 7.3 shall not apply to any such mergers or acquisitions where
(i) Borrower is the surviving entity and is otherwise in compliance with the
terms and conditions of this Agreement prior to and following such merger or
acquisition, and (ii)
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* CONFIDENTIAL TREATMENT REQUESTED
18.
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Borrower has first obtained Bank's written approval, such approval not to be
unreasonably withheld.
7.4 INDEBTEDNESS. Create, incur, assume or be or remain liable
with respect to any Indebtedness, or permit any Subsidiary so to do, other than
Permitted Indebtedness.
7.5 ENCUMBRANCES. Create, incur, assume or suffer to exist any
Lien with respect to any of its property, or assign or otherwise convey any
right to receive income, including the sale of any Accounts, or permit any of
its Subsidiaries so to do, except for Permitted Liens.
7.6 DISTRIBUTIONS. Pay any dividends or make any other
distribution or payment on account of or in redemption, retirement or purchase
of any capital stock.
7.7 INVESTMENTS. Directly or indirectly acquire or own, or make
any Investment in or to any Person, or permit any of its Subsidiaries so to do,
other than Permitted Investments.
7.8 TRANSACTIONS WITH AFFILIATES. Directly or indirectly enter
into or pen-nit to exist any material transaction with any Affiliate of Borrower
except for transactions that are in the ordinary course of Borrower's business,
upon fair and reasonable terms that are no less favorable to Borrower than would
be obtained in an arm's length transaction with a nonaffiliated Person,
7.9 SUBORDINATED DEBT. Make any payment in respect of any
Subordinated Debt, or permit any of its Subsidiaries to make any such payment,
except in compliance with the terms of such Subordinated Debt, or amend any
provision contained in any documentation relating to the Subordinated Debt
without Bank's prior written consent.
7.10 INVENTORY. Store the Inventory with a bailee, warehouseman,
or similar party unless Bank has received a pledge of the warehouse receipt
covering such Inventory. Except for Inventory sold in the ordinary course of
business and except for such other locations as Bank may approve in writing,
which approval shall not be unreasonably withheld, Borrower shall keep the
Inventory only at the location set forth in Section 10 hereof and such other
locations of which Borrower gives Bank prior written notice and as to which
Borrower signs and files a financing statement where needed to perfect Bank's
security interest.
7.11 COMPLIANCE. Become an "investment company" controlled by an
"investment company," within the meaning of the Investment Company Act of 1940,
or become principally engaged in, or undertake as one of its important
activities, the business of extending credit for the purpose of purchasing or
carrying margin stock, or use the proceeds of any Advance or Loan for such
purpose. Fail to (i) comply in all material respects with FDA's GMP regulations
and registration requirements; (ii) comply in all material respects with Federal
Food, Drug and Cosmetics Act, the Occupational Safety and Health Act, the
Environmental Protection Act, and the Toxic Substances Control Act; (iii) meet
the minimum funding requirements of ERISA, permit a reportable event or
prohibited transaction, as defined in ERISA, to occur; (iv) comply with the
Federal Fair Labor Standards Act in all material respects; or (v) violate any
law or regulation, in each case which violation could have a Material Adverse
Effect.
19.
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8. EVENTS OF DEFAULT.
Any one or more of the following events shall constitute an
Event of Default by Borrower under this Agreement:
8.1 PAYMENT DEFAULT. If Borrower fails to pay the principal of,
or any interest on, the Advance when due and payable; or fails to pay any
portion of any other Obligations not constituting such principal or interest,
including without limitation Bank Expenses, within thirty (30) days of receipt
by Borrower of an invoice for such other Obligations;
8.2 COVENANT DEFAULT. If Borrower fails to perform any
obligation under Section 6.8, 6.9, 6.10 or 6.11 or violates any of the covenants
contained in Article 7 of this Agreement, or fails or neglects to perform, keep,
or observe any other material term, provision, condition, covenant, or agreement
contained in this Agreement, in any of the Loan Documents, or in any other
present or future agreement between Borrower and Bank and as to any default
under such other term, provision, condition, covenant or agreement that can be
cured, has failed to cure such default within ten (10) days after Borrower
receives notice thereof or any officer of Borrower becomes aware thereof,
provided, however, that if the default cannot by its nature be cured within the
ten (10) day period or cannot after diligent attempts by Borrower be cured
within such ten (10) day period, and such default is likely to be cured within a
reasonable time, then Borrower shall have an additional reasonable period (which
shall not in any case exceed thirty (30) days) to attempt to cure such default,
and within such reasonable time period the failure to have cured such default
shall not be deemed an Event of Default (provided that no Advance will be
required to be made during such cure period);
8.3 MATERIAL ADVERSE CHANGE. If there occurs a material adverse
change in Borrower's business or financial condition, or if there is a material
impairment of the prospect of repayment of any portion of the Obligations or a
material impairment of the value or priority of Bank's security interests in the
Collateral;
8.4 ATTACHMENT. If any material portion of Borrower's assets is
attached, seized, subjected to a writ or distress warrant, or is levied upon, or
comes into the possession of any trustee, receiver or person acting in a similar
capacity and such attachment, seizure, writ or distress warrant or levy has not
been removed, discharged or rescinded within ten (10) days, or if Borrower is
enjoined, restrained, or in any way prevented by court order from continuing to
conduct all or any material part of its business affairs, or if a judgment or
other claim becomes a lien or encumbrance upon any material portion of
Borrower's assets, or if a notice of lien, levy, or assessment is filed of
record with respect to any of Borrower's assets by the United States Government,
or any department, agency, or instrumentality thereof, or by any state, county,
municipal, or governmental agency, and the same is not paid within ten (10) days
after Borrower receives notice thereof, provided that none of the foregoing
shall constitute an Event of Default where such action or event is stayed or an
adequate bond has been posted pending a good faith contest by Borrower (provided
that no Advance will be required to be made during such cure period);
20.
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8.5 INSOLVENCY. If Borrower becomes insolvent, or if an
Insolvency Proceeding is commenced by Borrower, or if an Insolvency Proceeding
is commenced against Borrower and is not dismissed or stayed within sixty (60)
days (provided that no Advance will be made prior to the dismissal of such
Insolvency Proceeding);
8.6 OTHER AGREEMENTS. If there is a default in any agreement to
which Borrower is a party with a third party or parties resulting in a right by
such third party or parties, whether or not exercised, to accelerate the
maturity of any Indebtedness in an amount in excess of Two Hundred Fifty
Thousand Dollars ($250,000) or that could reasonably be expected to have a
Material Adverse Effect;
8.7 SUBORDINATED DEBT. If Borrower makes any payment on account
of Subordinated Debt, except to the extent such payment is allowed under any
subordination agreement entered into with Bank;
8.8 JUDGMENTS. If a judgment or judgments for the payment of
money in an amount, individually or in the aggregate, of at least Two Hundred
Fifty Dollars ($100,000) shall be rendered against Borrower and shall remain
unsatisfied and unstayed for a period of thirty (30) days (provided that no
Advances will be made prior to the satisfaction or stay of such judgment);
8.9 MISREPRESENTATIONS. If any material misrepresentation or
material misstatement exists now or hereafter in any warranty or representation
set forth herein or in any certificate delivered to Bank by any Responsible
Officer pursuant to this Agreement or to induce Bank to enter into this
Agreement or any other Loan Document, at the time such representation or
warranty was made or such certificate was delivered.
8.10 FDA DETERMINATIONS. If the FDA takes one or more of the
following actions with respect to all or substantially all of Borrower's or a
Subsidiary's products: (a) withdraws Investigational New Drug status for any
such product that is undergoing clinical trials as the result of a determination
by the FDA that such product exposes subjects or patients to an unacceptable
health risk; (b) withdraws product approval of any such product as the result of
any failure to comply with regulatory standards; or (c) determines that such
products are not safe or efficacious.
8.11 CHANGE OF CONTROL. If any "person" or "group" (within the
meaning of Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934)
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934), directly or indirectly, of a sufficient number of shares
of all classes of stock then outstanding of Borrower ordinarily entitled to vote
in the election of directors, empowering such "person" or "group" to elect a
majority of the Board of Directors of Borrower.
9. BANKS RIGHTS AND REMEDIES.
9.1 RIGHTS AND REMEDIES. Upon the occurrence and during the
continuance of an Event of Default, Bank may, at its election, without notice of
its election and without demand, do any one or more of the following, all of
which are authorized by Borrower:
21.
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(a) Declare all Obligations, whether evidenced by this
Agreement, by any of the other Loan Documents, or otherwise, immediately due and
payable (provided that upon the occurrence of an Event of Default described in
Section 8.5 all Obligations shall become immediately due and payable without any
action by Bank);
(b) Cease advancing money or extending credit to or for
the benefit of Borrower under this Agreement or under any other agreement
between Borrower and Bank;
(c) Settle or adjust disputes and claims directly with
account debtors for amounts, upon terms and in whatever order that Bank
reasonably considers advisable;
(d) Without notice to or demand upon Borrower, make such
payments and do such acts as Bank considers necessary or reasonable to protect
its security interest in the Collateral. Borrower agrees to assemble the
Collateral if Bank so requires, and to make the Collateral available to Bank as
Bank may designate. Borrower authorizes Bank to enter the premises where the
Collateral is located, to take and maintain possession of the Collateral, or any
part of it, and to pay, purchase, contest, or compromise any encumbrance,
charge, or lien which in Bank's determination appears to be prior or superior to
its security interest and to pay all expenses incurred in connection therewith.
With respect to any of Borrower's owned premises, Borrower hereby grants Bank a
license to enter into possession of such premises and to occupy the same,
without charge, for up to one hundred twenty (120) days in order to exercise any
of Bank's rights or remedies provided herein, at law, in equity, or otherwise;
(e) Without notice to Borrower set off and apply to the
Obligations any and all (i) balances and deposits of Borrower held by Bank, or
(ii) indebtedness at any time owing to or for the credit or the account of
Borrower held by Bank;
(f) Ship, reclaim, recover, store, finish, maintain,
repair, prepare for sale, advertise for sale, and sell (in the manner provided
for herein) the Collateral. Bank is hereby granted a license or other right,
solely pursuant to the provisions of this Section 9. 1, to use, without charge,
Borrower's labels, patents, copyrights, rights of use of any name, trade
secrets, trade names, trademarks, service marks, and advertising matter, or any
property of a similar nature, as it pertains to the Collateral, in completing
production of, advertising for sale, and selling any Collateral and, in
connection with Bank's exercise of its rights under this Section 9. 1,
Borrower's rights under all licenses and all franchise agreements shall inure to
Bank's benefit;
(g) Sell the Collateral at either a public or private
sale, or both, by way of one or more contracts or transactions, for cash or on
terms, in such manner and at such places (including Borrower's premises) as Bank
determines is commercially reasonable, and apply any proceeds to the Obligations
in whatever manner or order Bank deems appropriate;
(h) Bank may credit bid and purchase at any public sale;
and
(i) Any deficiency that exists after disposition of the
Collateral as provided above will be paid immediately by Borrower.
22.
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9.2 POWER OF ATTORNEY. Effective only upon the occurrence and
during the continuance of an Event of Default, Borrower hereby irrevocably
appoints Bank (and any of Bank's designated officers, or employees) as
Borrower's true and lawful attorney to: (a) send requests for verification of
Accounts or notify account debtors of Bank's security interest in the Accounts;
(b) endorse Borrower's name on any checks or other forms of payment or security
that may come into Bank's possession; (c) sign Borrower's name on any invoice or
bill of lading relating to any Account, drafts against account debtors,
schedules and assignments of Accounts, verifications of Accounts, and notices to
account debtors; (d) make, settle, and adjust all claims under and decisions
with respect to Borrower's policies of insurance; and (e) settle and adjust
disputes and claims respecting the accounts directly with account debtors, for
amounts and upon terms which Bank determines to be reasonable; (f) to file, in
its sole discretion, one or more financing or continuation statements and
amendments thereto, relative to any of the Collateral without the signature of
Borrower where permitted by law; and (g) to transfer the Collateral into the
name of Bank or a third party to the extent permitted under the Code provided
Bank may exercise such power of attorney to sign the name of Borrower on any of
the documents described in Section 4.2 regardless of whether an Event of Default
has occurred. The appointment of Bank as Borrower's attorney in fact, and each
and every one of Bank's rights and powers, being coupled with an interest, is
irrevocable until all of the Obligations have been fully repaid and performed
and Bank's obligation to provide advances hereunder is terminated.
9.3 ACCOUNTS COLLECTION. After the occurrence and during the
continuance of an Event of Default, Bank may notify any Person owing funds to
Borrower of Bank's security interest in such funds and verify the amount of such
Account. Borrower shall collect all amounts owing to Borrower for Bank, receive
in trust all payments as Bank's trustee, and immediately deliver such payments
to Bank in their original form as received from the account debtor, with proper
endorsements for deposit.
9.4 BANK EXPENSES. If Borrower fails to pay any amounts or
furnish any required proof of payment due to third persons or entities, as
required under the terms of this Agreement, then Bank may do any or all of the
following: (a) make payment of the same or any part thereof-, (b) set up such
reserves under the Revolving Facility as Bank reasonably deems necessary to
protect Bank from the exposure created by such failure; or (c) obtain and
maintain insurance policies of the type discussed in Section 6.6 of this
Agreement, and take any action with respect to such policies as Bank reasonably
deems prudent. Any amounts so paid or deposited by Bank shall constitute Bank
Expenses, shall be immediately due and payable, and shall bear interest at the
then applicable rate hereinabove provided, and shall be secured by the
Collateral. Any payments made by Bank shall not constitute an agreement by Bank
to make similar payments in the future or a waiver by Bank of any Event of
Default under this Agreement.
9.5 BANK'S LIABILITY FOR COLLATERAL. So long as Bank complies
with Section 9207 of the Code, Bank shall not in any way or manner be liable or
responsible for: (a) the safekeeping of the Collateral; (b) any loss or damage
thereto occurring or arising in any manner or fashion from any cause; (c) any
diminution in the value thereof, or (d) any act or default of any carrier,
warehouseman, bailee, forwarding agency, or other person whomsoever. All risk of
loss, damage or destruction of the Collateral shall be borne by Borrower.
23.
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9.6 REMEDIES CUMULATIVE. Bank's rights and remedies under this
Agreement, the Loan Documents, and all other agreements shall be cumulative.
Bank shall have all other rights and remedies not inconsistent herewith as
provided under the Code, by law, or in equity. No exercise by Bank of one right
or remedy shall be deemed an election, and no waiver by Bank of any Event of
Default on Borrower's part shall be deemed a continuing waiver. No delay by Bank
shall constitute a waiver, election, or acquiescence by it. No waiver by Bank
shall be effective unless made in a written document signed on behalf of Bank
and then shall be effective only in the specific instance and for the specific
purpose for which it was given.
9.7 DEMAND; PROTEST. Borrower waives demand, protest, notice of
protest, notice of default or dishonor, notice of payment and nonpayment, notice
of any default, nonpayment at maturity, release, compromise, settlement,
extension, or renewal of accounts, documents, instruments, chattel paper, and
guarantees at any time held by Bank on which Borrower may in any way be liable.
10. NOTICES.
Unless otherwise provided in this Agreement, all notices or
demands by any party relating to this Agreement or any other agreement entered
into in connection herewith shall be in writing and (except for financial
statements and other informational documents which may be sent by first-class
mail, postage prepaid) shall be personally delivered or sent by a recognized
overnight delivery service, certified mail, postage prepaid, return receipt
requested, to Borrower or to Bank, as the case may be, at its addresses set
forth below:
If to Borrower: Coulter Pharmaceutical, Inc.
550 California Avenue, Suite 200
Palo Alto, CA 94306-1440
Attn: Chief Financial Officer
FAX: (650) 849-7530
Phone: (650) 842-7300
with a copy to:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Attn: Robert L. Jones
FAX: (650) 857-0663
Phone: (650) 843-5000
If to Bank: Silicon Valley Bank
3003 Tasman Drive
P.O. Box 2607
Santa Clara, CA 95054
Attn: [...***...]
- ----------
* CONFIDENTIAL TREATMENT REQUESTED
24.
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FAX: (408) 654-[...***...]
Phone: (408) 654-[...***...]
The parties hereto may change the address at which they are to receive
notices hereunder, by notice in writing in the foregoing manner given to the
other.
11. CHOICE OF LAW AND VENUE JURY TRIAL WAIVER.
This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of California, without regard to principles
of conflicts of law. Each of Borrower and Bank hereby submits to the exclusive
jurisdiction of the state and Federal courts located in the County of Santa
Clara, State of California. BORROWER AND BANK EACH HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW OR STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE
FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS
AGREEMENT. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
12. GENERAL PROVISIONS.
12.1 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure
to the benefit of the respective successors and permitted assigns of each of the
parties; provide , however , that neither this Agreement nor any rights
hereunder may be assigned by Borrower without Bank's prior written consent,
which consent may be granted or withheld in Bank's sole discretion. Bank shall
have the right without the consent of or notice to Borrower to sell, transfer,
negotiate, or grant participations in all or any part of, or any interest in
Bank's obligations, rights and benefits hereunder.
12.2 INDEMNIFICATION. Borrower shall defend, indemnify and hold
harmless Bank and its officers, employees, and agents against: (a) all
obligations, demands, claims, and liabilities claimed or asserted by any other
party in connection with the transactions contemplated by this Agreement; and
(b) all losses or Bank Expenses in any way suffered, incurred, or paid by Bank
as a result of or in any way arising out of, following, or consequential to
transactions between Bank and Borrower whether under this Agreement, or
otherwise (including without limitation reasonable attorneys fees and expenses),
except for losses caused by Bank's gross negligence or willful misconduct.
12.3 TIME OF ESSENCE. Time is of the essence for the performance
of all obligations set forth in this Agreement.
25.
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12.4 SEVERABILITY OF PROVISIONS. Each provision of this
Agreement shall be severable from every other provision of this Agreement for
the purpose of determining the legal enforceability of any specific provision.
12.5 COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by different parties on separate counterparts, each of
which, when executed and delivered, shall be deemed to be an original, and all
of which, when taken together, shall constitute but one and the same Agreement.
12.6 SURVIVAL. All covenants, representations and warranties
made in this Agreement shall continue in full force and effect so long as any
Obligations remain outstanding. The obligations of Borrower to indemnify Bank
with respect to the expenses, damages, losses, costs and liabilities described
in Section 12.2 shall survive until all applicable statute of limitations
periods with respect to actions that may be brought against Bank have run,
provided that so long as no Obligations remain outstanding hereunder and Bank
has no commitment to make any Advance or to make any other loans to Borrower
hereunder, Bank shall release all security interests granted hereunder and
redeliver all Collateral held by it in accordance with applicable law.
12.7 CONFIDENTIALITY. As provided in the Nondisclosure Agreement
dated as of June 8, 1998, by and between Borrower and Bank, and as provided in
this section, in handling any confidential information Bank shall exercise the
same degree of care that it exercises with respect to its own proprietary
information of the same types to maintain the confidentiality of any non-public
information thereby received or received pursuant to this Agreement except that
disclosure of such information may be made (i) to the subsidiaries or affiliates
of Bank in connection with their present or prospective business relations with
Borrower, (ii) to prospective transferees or purchasers of any interest in the
Loans, provided that they have entered into a comparable confidentiality
agreement in favor of Borrower and have delivered a copy to Borrower, (iii) as
required by law, regulations, rule or order, subpoena, judicial order or similar
order, (iv) as may be required in connection with the examination, audit or
similar investigation of Bank and (v) as Bank may reasonably determine in
connection with the enforcement of any remedies hereunder. Confidential
information hereunder shall not include information that either: (a) is in the
public domain or in the knowledge or possession of Bank when disclosed to Bank,
or becomes part of the public domain after disclosure to Bank through no fault
of Bank; or (b) is disclosed to Bank by a third party, provided Bank does not
have actual knowledge that such third party is prohibited from disclosing such
information.
26.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
COULTER PHARMACEUTICAL, INC.
By:_________________________________
Title:______________________________
SILICON VALLEY BANK
By:_________________________________
Title:______________________________
27.
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EXHIBIT A
The Collateral shall consist of all right, title and interest of
Borrower in and to the following:
(a) All goods and equipment now owned or hereafter acquired, including,
without limitation, all machinery, fixtures, vehicles (including motor vehicles
and trailers), and any interest in any of the foregoing, and all attachments,
except those which were purchased pursuant to a lease agreement, accessories,
accessions, replacements, substitutions, additions, and improvements to any of
the foregoing, wherever located;
(b) All inventory, now owned or hereafter acquired, including, without
limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is temporarily out of Borrower's custody or possession or in
transit and including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the
foregoing and any documents of title representing any of the above, and
Borrower's Books relating to any of the foregoing;
(c) All contract rights and general intangibles now owned or hereafter
acquired, including, without limitation, goodwill, leases, license agreements,
franchise agreements, blueprints, drawings, purchase orders, customer lists,
route lists, claims, literature, reports, catalogs, income tax refunds, payments
of insurance and rights to payment of any kind;
(d) All now existing and hereafter arising accounts, contract rights,
royalties, license rights and all other forms of obligations owing to Borrower
arising out of the sale or lease of goods, the licensing of technology or the
rendering of services by Borrower, whether or not earned by performance, and any
and all credit insurance, guaranties, and other security therefor, as well as
all merchandise returned to or reclaimed by Borrower and Borrower's Books
relating to any of the foregoing;
(e) All documents, cash, deposit accounts, securities, securities
entitlements, financial assets, investment properties, securities accounts,
securities entitlements, letters of credit, certificates of deposit, instruments
and chattel paper now owned or hereafter acquired and Borrower's Books relating
to the foregoing; and
(f) Any and all claims, rights and interests in any of the above and all
substitutions for, additions and accessions to and proceeds thereof.
The term "Collateral" shall not include any inventory and equipment
related to Borrower's Bexxar technology. Notwithstanding the foregoing, the term
"Collateral" shall not include copyrights, patents, trademarks, licenses or
other intellectual property of Borrower except to the extent necessary to
perfect Bank's security interest in the proceeds thereof.
28.
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EXHIBIT B
LOAN PAYMENT/ADVANCE TELEPHONE REQUEST FORM
DEADLINE FOR SAME DAY PROCESSING IS 3:00 P.M., P.S.T.
TO: CENTRAL CLIENT SERVICE DIVISION DATE:_________________
FAX#: (408) 496-2426 TIME:_________________
- --------------------------------------------------------------------------------
FROM: Coulter Pharmaceutical, Inc.
---------------------------------------------------------------------------
CLIENT NAME (BORROWER)
REQUESTED BY:___________________________________________________________________
AUTHORIZED SIGNER'S NAME
AUTHORIZED SIGNATURE:___________________________________________________________
PHONE NUMBER:___________________________________________________________________
FROM ACCOUNT #_______________ TO ACCOUNT # ____________________________________
REQUESTED TRANSACTION TYPE REQUEST DOLLAR AMOUNT
PRINCIPAL INCREASE (TERM ADVANCE) $____________________________
PRINCIPAL PAYMENT (ONLY) $____________________________
INTEREST PAYMENT (ONLY) $____________________________
PRINCIPAL AND INTEREST (PAYMENT) $____________________________
OTHER INSTRUCTIONS:_____________________________________________________________
________________________________________________________________________________
All representations and warranties of Borrower stated in the Loan
Agreement are true, correct and complete in all material respects as of the date
of the telephone request for and Advance confirmed by this Borrowing
Certificate; provided, however, that those representations and warranties
expressly referred to another date shall be true, correct and complete in all
material respects of such date.
================================================================================
BANK USE ONLY
TELEPHONE REQUEST:
The following person is authorized to request the loan payment transfer/loan
advance on the advance designated account and is known to me.
__________________________________ ____________________________________
Authorized Requestor Phone #
__________________________________ ____________________________________
Received By (Bank) Phone #
_______________________________________
Authorized Signature (Bank)
- --------------------------------------------------------------------------------
29.
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EXHIBIT C
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
FROM: COULTER PHARMACEUTICAL, INC.
The undersigned authorized officer of Coulter Pharmaceutical, Inc.
hereby certifies that in accordance with the terms and conditions of the Loan
and Security Agreement between Borrower and Bank (the "Agreement"), (i) Borrower
is in complete compliance for the period ending with all required covenants
except as noted below and (ii) all representations and warranties of Borrower
stated in the Agreement are true and correct in all material respects as of the
date hereof, except those representations and warranties made as of a specific
date. Attached herewith are the required documents supporting the above
certification. The Officer further certifies that these are prepared in
accordance with Generally Accepted Accounting Principles (GAAP) and are
consistently applied from one period to the next except as explained in an
accompanying letter or footnotes.
PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES"
COLUMN.
REPORTING COVENANT REQUIRED COMPLIES
------------------ -------- --------
Financial statements(1) Quarterly within 30 days Yes No
10-K I 1O-Q within 10 days Yes No
Annual (CPA Audited) FYE within 90 days Yes No
(1) Monthly within 30 days if Liquidity falls below Liquidity Multiple or 12
months RML
Financial Covenant Required Actual Complies
Maintain on a Quarterly Basis:
Total Liabilities/Tangible Net Worth [...***...] ____:1.0 Yes No
Tangible Net Worth $[...***...] $____ Yes No
Liquidity(2) [...***...] ____:1.0 Yes No
RML(2) [...***...] Yes No
Debt Service Coverage(3) [...***...] ____:1.0 Yes No
(2) converts to Debt Service Coverage of 1.5: 1.0 upon two consecutive quarters
of compliance with Debt Service Coverage
(3) required only upon release of Liquidity and RML requirement
COMMENTS REGARDING EXCEPTIONS: See Attached.
Sincerely,
__________________________________
SIGNATURE
__________________________________
TITLE
_______________________________________________
BANK USE ONLY
Received by:___________________________________
AUTHORIZED SIGNER
Date:__________________________________________
Verified:______________________________________
AUTHORIZED SIGNER
Date:__________________________________________
Compliance Status: Yes No
_______________________________________________
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* CONFIDENTIAL TREATMENT REQUESTED
30.
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__________________________________
DATE
31.
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DISBURSEMENT REQUEST AND AUTHORIZATION
Borrower: Coulter Pharmaceutical, Inc. Bank: Silicon Valley Bank
================================================================================
LOAN TYPE. This is a Variable/Fixed Rate, Revolving Facility of a principal
amount up to $10,000,000, which converts to a term loan.
PRIMARY PURPOSE OF LOAN. The primary purpose of this loan is to finance capital
expenditures and to support general working capital purposes.
SPECIFIC PURPOSE. The specific purpose of this loan is: General Corporate
Purposes.
DISBURSEMENT INSTRUCTIONS. Borrower understands that no loan proceeds will be
disbursed until all of Bank's conditions for making the loan have been
satisfied. Please disburse the loan proceeds as follows:
Revolving Advance
-----------------
Amount paid to Borrower directly: $_____
Undisbursed Funds $_____
Principal $_____
CHARGES PAID IN CASH. Borrower has paid or will pay in cash as agreed the
following charges:
Prepaid Finance Charges Paid in Cash:
Facility Fee: $37,500
Other Charges Paid in Cash: $_____
$100 UCC Search Fees
$100 UCC Filing Fees
$TBD Outside Counsel Fees and Expenses (Estimate)
Total Charges Paid in Cash $_____
AUTOMATIC PAYMENTS. Borrower hereby authorizes Bank automatically to deduct from
Borrower's account numbered _____ the amount of any loan payment. If the funds
in the account are insufficient to cover any payment, Bank shall not be
obligated to advance funds to cover the payment.
FINANCIAL CONDITION. BY SIGNING THIS AUTHORIZATION, BORROWER REPRESENTS AND
WARRANTS TO BANK THAT THE INFORMATION PROVIDED ABOVE IS TRUE AND CORRECT AND
THAT THERE HAS BEEN NO ADVERSE C14ANGE IN BORROWER'S FINANCIAL CONDITION AS
DISCLOSED IN BORROWER'S MOST RECENT FINANCIAL STATEMENT TO BANK. THIS
AUTHORIZATION IS DATED AS OF OCTOBER 29,1998.
BORROWER:
__________________________________
__________________________________
Authorized Officer
37
AGREEMENT TO PROVIDE INSURANCE
Grantor: Coulter Pharmaceutical, Inc. Bank: Silicon Valley Bank
================================================================================
INSURANCE REQUIREMENTS. Coulter Pharmaceutical, Inc. ("Grantor")
understands that insurance coverage is required in connection with the extending
of a loan or the providing of other financial accommodations to Grantor by Bank.
These requirements are set forth in the Loan Documents. The following minimum
insurance coverages must be provided on the following described collateral (the
"Collateral"):
Collateral: All Inventory, Equipment and Fixtures.
Type: All risks, including fire, theft and liability.
Amount: Full insurable value.
Basis: Replacement value.
Endorsements: Loss payable clause to Bank with stipulation
that coverage will not be canceled or
diminished without a minimum of twenty (20)
days' prior written notice to Bank.
INSURANCE COMPANY. Grantor may obtain insurance from any insurance
company Grantor may choose that is reasonably acceptable to Bank. Grantor
understands that credit may not be denied solely because insurance was not
purchased through Bank.
FAILURE TO PROVIDE INSURANCE. Grantor agrees to deliver to Bank, on or
before closing, evidence of the required insurance as provided above, with an
effective date of October 29, 1998, or earlier. Grantor acknowledges and agrees
that if Grantor fails to provide any required insurance or fails to continue
such insurance in force, Bank may do so at Grantor's expense as provided in the
Loan and Security Agreement. The cost of such insurance, at the option of Bank,
shall be payable on demand or shall be added to the indebtedness as provided in
the security document. GRANTOR ACKNOWLEDGES THAT IF BANK SO PURCHASES ANY SUCH
INSURANCE, THE INSURANCE WILL PROVIDE LIMITED PROTECTION AGAINST PHYSICAL DAMAGE
TO THE COLLATERAL, UP TO THE BALANCE OF THE LOAN; HOWEVER, GRANTOR'S EQUITY IN
THE COLLATERAL MAY NOT BE INSURED. IN ADDITION, THE INSURANCE MAY NOT PROVIDE
ANY PUBLIC LIABILITY OR PROPERTY DAMAGE INDEMNIFICATION AND MAY NOT MEET THE
REQUIREMENTS OF ANY FINANCIAL RESPONSIBILITY LAWS.
AUTHORIZATION. For purposes of insurance coverage on the Collateral,
Grantor authorizes Bank to provide to any person (including any insurance agent
or company) all information Bank deems appropriate, whether regarding the
Collateral, the loan or other financial accommodations, or both.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS AGREEMENT TO
PROVIDE INSURANCE AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED OCTOBER
29,1998.
GRANTOR:
COULTER PHARMACEUTICAL, INC.
__________________________________
Authorized Officer
FOR BANK USE ONLY
INSURANCE VERIFICATION
DATE:_____________________ PHONE:__________________
AGENT'S NAME:______________________________________
INSURANCE COMPANY:_________________________________
POLICY NUMBER:_____________________________________
EFFECTIVE DATES:___________________________________
COMMENTS:__________________________________________
2.
38
CORPORATE RESOLUTIONS TO BORROW
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Borrower: Coulter Pharmaceutical, Inc.
- --------------------------------------------------------------------------------
I, the undersigned Secretary or Assistant Secretary of Coulter
Pharmaceutical, Inc. (the "Corporation"), HEREBY CERTIFY that the Corporation is
organized and existing under and by virtue of the laws of the State of Delaware.
I FURTHER CERTIFY that attached hereto as Attachments I and 2 are true
and complete copies of the Certificate of Incorporation and Bylaws of the
Corporation, each of which is in full force and effect on the date hereof.
I FURTHER CERTIFY that at a meeting of the Directors of the Corporation,
duly called and held, at which a quorum was present and voting (or by other duly
authorized corporate action in lieu of a meeting), the following resolutions
were adopted.
BE IT RESOLVED, that any one (1) of the following named officers,
employees, or agents of this Corporation, whose actual signatures are shown
below:
NAMES POSITIONS ACTUAL SIGNATURES
________________________ ______________________ ______________________
________________________ ______________________ ______________________
________________________ ______________________ ______________________
________________________ ______________________ ______________________
acting for an on behalf of this Corporation and as its act and deed be, and they
hereby are, authorized and empowered:
BORROW MONEY. To borrow from time to time from Silicon Valley Bank
("Bank"), an such terms as may be agreed upon between the officers, employees,
or agents and Bank, such sum or sums of money as in their judgment should be
borrowed, without limitation, including such sums as are specified in that
certain Loan and Security Agreement dated as of October 29, 1998 (the "Loan
Agreement").
EXECUTE NOTES. To execute and deliver to Bank the promissory note or
notes of the Corporation, on Lender's forms, at such rates of interest and on
such terms as may be agreed upon, evidencing the sums of money so borrowed or
any indebtedness of the Corporation to Bank, and also to execute and deliver to
Lender one or more renewals, extensions, modifications, refinancings,
consolidations, or substitutions for one or more of the notes, or any portion of
the notes.
GRANT SECURITY. To grant a security interest to Bank in the Collateral
described in the Loan Agreement, which security interest shall secure all of the
Corporation's Obligations, as described in the Loan Agreement.
NEGOTIATE ITEMS. To draw, endorse, and discount with Bank all drafts,
trade acceptances, promissory notes, or other evidences of indebtedness payable
to or belonging to the Corporation
1.
39
or in which the Corporation may have an interest, and either to receive cash for
the same or to cause such proceeds to be credited to the account of the
Corporation with Bank, or to cause such other disposition of the proceeds
derived therefrom as they may deem advisable.
FURTHER ACTS. In the case of lines of credit, to designate additional or
alternate individuals as being authorized to request advances thereunder, and in
all cases, to do and perform such other acts and things, to pay any and all fees
and costs, and to execute and deliver such other documents and agreements as
they may in their discretion deem reasonably necessary or proper in order to
carry into effect the provisions of these Resolutions.
BE IT FURTHER RESOLVED, that any and all acts authorized pursuant to
these resolutions and performed prior to the passage of these resolutions are
hereby ratified and approved, that these Resolutions shall remain in full force
and effect and Bank may rely on these Resolutions until written notice of their
revocation shall have been delivered to and received by Bank. Any such notice
shall not affect any of the Corporation's agreements or commitments in effect at
the time notice is given.
I FURTHER CERTIFY that the officers, employees, and agents named above
are duly elected, appointed, or employed by or for the Corporation, as the case
may be, and occupy the positions set forth opposite their respective names; that
the foregoing Resolutions now stand of record on the books of the Corporation;
and that the Resolutions are in full force and effect and have not been modified
or revoked in any manner whatsoever.
IN WITNESS WHEREOF, I have hereunto set my hand on October 29, 1998, and
attest that the signatures set opposite the names listed above are their genuine
signatures.
CERTIFIED TO AND ATTESTED BY:
X___________________________________
________________________________________________________________________________
Attachments:
1. Certificate of Incorporation
2. By-Laws
2.
40
This FINANCING STATEMENT is presented for filing and will remain effective with certain
exceptions, for a period of five years from the date of filing, pursuant to section 9403 of the California Uniform Commercial Code.
- ------------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR (LAST NAME FIRST-IF AN INDIVIDUAL) 1A. SOCIAL SECURITY OF FEDERAL TAX NO.
COULTER PHARMACEUTICAL, INC.
- ------------------------------------------------------------------------------------------------------------------------------------
1B. MAILING ADDRESS 1C. CITY, STATE 1D. ZIP CODE
550 CALIFORNIA AVENUE, SUITE 200 PALO ALTO, CA 94306-1440
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2. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST-IF AN INDIVIDUAL) 2A. SOCIAL SECURITY OF FEDERAL TAX NO.
- ------------------------------------------------------------------------------------------------------------------------------------
2B. MAILING ADDRESS 2C. CITY, STATE 2D. ZIP CODE
- ------------------------------------------------------------------------------------------------------------------------------------
3. DEBTOR'S TRADE NAMES OF STYLES (IF ANY) 3A. FEDERAL TAX NUMBER
====================================================================================================================================
4. SECURED PARTY 4A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME SILICON VALLEY BANK
MAILING ADDRESS 3003 TASMAN DRIVE
CITY SANTA CLARA STATE CA ZIP CODE 95054
- ------------------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 4A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME
MAILING ADDRESS
CITY STATE ZIP CODE
- ------------------------------------------------------------------------------------------------------------------------------------
6. This FINANCING STATEMENT covers the following types or items of property (include description of real property on which located
and owner of record when required by instruction 4).
SEE EXHIBIT A ATTACHED HERETO FOR COLLATERAL DESCRIPTION.
- ------------------------------------------------------------------------------------------------------------------------------------
7. CHECK [X] 7A. PRODUCTS OF COLLATERAL 7B. DEBTOR(S) SIGNATURE NOT REQUIRED IN ACCORDANCE WITH
IF APPLICABLE [X] ARE ALSO COVERED INSTRUCTION 5(a) ITEM
[ ](1) [ ](2) [ ](3) [ ](4)
- ------------------------------------------------------------------------------------------------------------------------------------
8. CHECK [X] [ ] DEBTOR IS A "TRANSMITTING UTILITY" IN ACCORDANCE WITH UCC SEC. 9105(1)(n)
IF APPLICABLE
- ------------------------------------------------------------------------------------------------------------------------------------
9. C
O 10. THIS SPACE FOR USE OF FILING OFFICER
SIGNATURE(S) OF DEBTOR(S) By: /s/ William G. Harris D (DATE, TIME, FILING NUMBER
- --------------------------------------------------------------------------------- E AND FILING OFFICER)
-----
1
TYPE OF PRINT NAME(S) OF DEBTOR(S) COULTER PHARMACEUTICAL, INC.
- --------------------------------------------------------------------------------- 2
SIGNATURE(S) OF SECURED PARTY(IES) /s/ Dr. Bowman 3
- ---------------------------------------------------------------------------------
4
TYPE OR PRINT NAME(S) OF SECURED PARTY(IES) SILICON VALLEY BANK 5
=================================================================================
11. Return copy to: 6
NAME 7
ADDRESS
CITY 8
STATE
ZIP CODE 9
(1) FILING OFFICER COPY FORM UCC-1 0
Approved by the Secretary of State
====================================================================================================================================
41
DEBTOR: COULTER PHARMACEUTICAL, INC.
EXHIBIT A
The Collateral shall consist of all right, title and interest of
Borrower in and to the following:
(a) All goods and equipment now owned or hereafter acquired,
including, without limitation, all machinery, fixtures, vehicles (including
motor vehicles and trailers), and any interest in any of the foregoing, and all
attachments, except those which were purchased pursuant to a lease agreement,
accessories, accessions, replacements, substitutions, additions, and
improvements to any of the foregoing, wherever located;
(b) All inventory, now owned or hereafter acquired, including,
without limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is temporarily out of Borrower's custody or possession or in
transit and including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the
foregoing and any documents of title representing any of the above, and
Borrower's Books relating to any of the foregoing;
(c) All contract rights and general intangibles now owned or
hereafter acquired, including, without limitation, goodwill, leases, license
agreements, franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, claims, literature, reports, catalogs, income tax
refunds, payments of insurance and rights to payment of any kind;
(d) All now existing and hereafter arising accounts, contract
rights, royalties, license rights and all other forms of obligations owing to
Borrower arising out of the sale or lease of goods, the licensing of technology
or the rendering of services by Borrower, whether or not earned by performance,
and any and all credit insurance, guaranties, and other security therefor, as
well as all merchandise returned to or reclaimed by Borrower and Borrower's
Books relating to any of the foregoing;
(e) All documents, cash, deposit accounts, securities,
securities entitlements, financial assets, investment properties, securities
accounts, securities entitlements, letters of credit, certificates of deposit,
instruments and chattel paper now owned or hereafter acquired and Borrower's
Books relating to the foregoing; and
(f) Any and all claims, rights and interests in any of the above
and an substitutions for, additions and accessions to and proceeds thereof.
The term "Collateral" shall not include any inventory and equipment
related to Borrower's Bexxar technology. Notwithstanding the foregoing, the term
"Collateral" shall not include copyrights, patents and trademarks of Borrower,
except to the extent necessary to perfect Bank's security interest in the
proceeds thereof,