Exhibit 10.42
CREDIT AGREEMENT
Dated as of June 30, 1999
BAXTER HEALTHCARE CORPORATION, a Delaware corporation (the "Lender"),
and Nexell Therapeutics Inc., a Delaware corporation (the "Borrower") hereby
agree as follows:
ARTICLE I
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 1.01. The Advances. The Lender agrees, on the terms and
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conditions hereinafter set forth, to make up to three advances (the "Advances")
to the Borrower from time to time on any Business Day (as hereinafter defined)
during the period from the date hereof until the Termination Date (as
hereinafter defined) in an aggregate amount not to exceed twenty million dollars
($20,000,000.00)(the "Commitment"). The "Termination Date" shall be the earlier
of (i) September 30, 2000, (ii) the Maturity Date (as hereinafter defined), or
(iii) a Financing Event (as hereinafter defined). Each Advance shall be in an
amount not greater than ten million dollars ($10,000,000.00). Amounts borrowed
hereunder and repaid or prepaid may not be re-borrowed. No more than one Advance
may be made in any calendar quarter. A promissory note of the Borrower, in
substantially the form attached as Exhibit A hereto (the "Note"), shall evidence
the indebtedness resulting from such Advances and be delivered to the Lender
pursuant to Article II.
SECTION 1.02. Making the Advances. (a) Each Advance shall be made
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on notice, given not later than 11:00 A.M. (Chicago time) on the fifth Business
Day prior to the date of the proposed Advance, by the Borrower to the Lender,
specifying the date and amount thereof. Not later than 11:00 A.M. (Chicago
time) on the date of such Advance and upon fulfillment of the applicable
conditions set forth in Article II, the Lender will wire-transfer funds in the
amount of such Advance to the following account of the Borrower: Union Bank of
California, 2001 Michelson Drive, Irvine, CA 92612 - ABA No. 122000496 / Acct.
No. 0630050944, in same day funds.
(b) Each notice from the Borrower to the Lender requesting an Advance
shall be irrevocable and binding on the Borrower. The Borrower shall indemnify
the Lender against any loss, cost or expense incurred by the Lender as a result
of any failure to fulfill on or before the date specified in such notice for
such Advance the applicable conditions set forth in Article II, including,
without limitation, any loss, cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by the Lender to
fund the Advance when the Advance, as a result of such failure, is not made on
such date.
SECTION 1.03. Repayment. Subject to Section 1.07 hereof, the
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Borrower shall repay the aggregate unpaid principal amount of all Advances plus
interest on the unpaid principal
amount of each Advance from the date of such Advance until December 31, 2001, at
a rate per annum equal to 6.5% compounded annually (collectively the
"Outstanding Balance"), in twenty equal quarterly installments on the first day
of January, April, July and October of each year beginning on January 1, 2002,
with the final installment due and payable on the Maturity Date. The term
"Maturity Date" shall mean October 1, 2006, or such earlier date that the Note
and all interest thereon becomes due and payable by acceleration or otherwise,
as provided in Sections 5.01 and 5.02 hereof.
SECTION 1.04. Interest. The Borrower shall pay interest on the
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Outstanding Balance from January 1, 2002 until such Outstanding Balance shall be
paid in full, at a rate per annum equal to 6.5% ("Interest Rate"), in arrears on
the first day of January, April, July and October of each year, beginning on
January 1, 2002 (each, together with the Outstanding Balance installment payable
on such date, an "Installment"), with the final Installment due and payable on
the Maturity Date. In the event that any Events of Default shall occur, and for
and during any period in which any Events of Default shall be continuing, the
term "Interest Rate" shall mean a rate per annum equal to 8.5%.
SECTION 1.05. Prepayments. The Borrower may, upon at least five
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Business Days' notice to the Lender stating the proposed date and principal
amount of the prepayment, and if such notice is given the Borrower shall, prepay
the outstanding principal amounts of any Advance in whole or in part, together
with accrued but unpaid interest to the date of such prepayment on the principal
amount prepaid. All prepayments shall be first to accrued but unpaid interest
and second to principal.
SECTION 1.06. Payments and Computations. (a) The Borrower shall
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make each payment hereunder or under the Note not later than 10:00 a.m.(Chicago
time) on the day when due in U.S. dollars to the following account of the
Lender: The First National Bank of Chicago, One First National Plaza, Chicago,
IL 60670 - ABA No. 071000013 / Acct. No. 5253284, in same day funds.
(b) All computations of interest shall be made by the Lender on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest is payable.
(c) Whenever any payment hereunder or under the Note shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest. The term "Business Day"
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means a day of the year on which banks are not required or authorized to close
in Chicago.
SECTION 1.07. Financing Event. Upon the occurrence of any Financing
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Event (as hereinafter defined), 100% of the cash proceeds of the Financing Event
(net of the expenses the Borrower incurred in connection with the Financing
Event) shall be utilized to repay the principal and accrued but unpaid interest
(first to accrued but unpaid interest and second to principal) of the Advances
until the Advances, together with all accrued but unpaid interest, and all other
amounts payable under this Agreement or the Note, have been fully paid. The
term "Financing Event" means
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that the Borrower shall have completed a sale or sales of securities of the
Borrow (whether represented by debt, equity or a combination thereof) and/or
shall have obtained debt financing or financings following the date of this
Agreement where the cash proceeds thereof (net of the expenses of the Borrower
incurred in connection with the Financing Event) is equal to or exceeds fifty
million dollars ($50,000,000.00) in the aggregate.
ARTICLE II
CONDITIONS OF LENDING
SECTION 2.01. Conditions Precedent to Initial Advance. The obligation
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of the Lender to make its initial Advance is subject to the conditions precedent
that the Lender shall have received on or before the day of such Advance the
following, each dated such day, in form and substance satisfactory to the
Lender:
(a) The original fully executed Note;
(b) Certified copies of the resolutions of the Board of Directors of
the Borrower approving each Loan Document (as defined in Section 6.04) to
which it is a party, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to each
such Loan Document;
(c) A certificate of the Secretary or an Assistant Secretary of the
Borrower certifying the names and true signatures of the officers of the
Borrower authorized to sign each Loan Document to which it is a party and
the other documents to be delivered hereunder; and
(d) Such other approvals or documents as the Lender may reasonably
request.
SECTION 2.02. Conditions Precedent to All Advances. The obligation
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of the Lender to make each Advance (including the initial Advance) shall be
subject to the further conditions precedent that on the date of such Advance (a)
the following statements shall be true and each of the giving of the applicable
notice requesting such Advance and the acceptance by the Borrower of the
proceeds of such Advance shall constitute a representation and warranty by the
Borrower that on the date of the notice and on the date of such Advance such
statements are true:
(i) The representations and warranties contained in Section 3.01 of
this Agreement, are correct on and as of the date of the Notice and of such
Advance, before and after giving effect to such Advance and to the application
of the proceeds therefrom, as though made on and as of such date;
(ii) No material adverse change in the business condition (financial
or otherwise), since the date of the most recent Advance to the Borrower shall
have occurred and be continuing; and
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(iii) No event has occurred and is continuing, or would result from
such Advance or from the application of the proceeds therefrom, which
constitutes an Event of Default (as defined in Section 5.01 hereof) or would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both;
and (b) the Lender shall have received such other approvals or documents as the
Lender may reasonably request.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of the Borrower. The
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Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Note are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, and do not contravene (i) the
Borrower's charter or by-laws or (ii) any law or any contractual restriction
binding on or affecting the Borrower, and do not result in or require the
creation of any lien, security interest or other charge or encumbrance (other
than pursuant hereto) upon or with respect to any of its properties.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by the Borrower of this Agreement or
the Note.
(d) Each of this Agreement and the Note constitutes the legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with its respective terms.
(e) The balance sheets of the Borrower and its subsidiaries as at
December 31, 1998, and the related statements of income and retained earnings of
the Borrower and its subsidiaries for the fiscal year then ended, copies of
which have been furnished to the Lender, fairly present the financial condition
of the Borrower and its subsidiaries as at such date and the results of the
operations of the Borrower and its subsidiaries for the period ended on such
date, all in accordance with generally accepted accounting principles
consistently applied, and since December 31, 1998, there has been no material
adverse change in such condition or operations.
(f) There is no pending or threatened action or proceeding affecting
the Borrower or any of its subsidiaries before any court, governmental agency or
arbitrator, which may materially adversely affect the financial condition or
operations of the Borrower or any subsidiary or which purports to affect the
legality, validity or enforceability of this Agreement or any Loan Document to
which the Borrower is or will be a party.
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(g) No proceeds of any Advance will be used to acquire any equity
security of a class which is registered pursuant to Section 12 of the Securities
Exchange Act of 1934.
(h) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System),
and no proceeds of any Advance will be used to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing or carrying
any margin stock.
ARTICLE IV
COVENANTS OF THE BORROWER
SECTION 4.01. Affirmative Covenants. So long as the Note shall
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remain unpaid or the Lender shall have any Commitment hereunder, the Borrower
will, unless the Lender shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
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subsidiaries to comply, in all material respects with all applicable laws,
rules, regulations and orders, such compliance to include, without limitation,
paying before the same become delinquent all taxes, assessments and governmental
charges imposed upon it or upon its property except to the extent contested in
good faith.
(b) Reporting Requirements. Furnish to the Lender:
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(i) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the Borrower,
balance sheets of the Borrower and its subsidiaries as of the end of such
quarter and statements of income and retained earnings of the Borrower and its
subsidiaries for the period commencing at the end of the previous fiscal year
and ending with the end of such quarter, certified by the chief financial
officer of the Borrower;
(ii) as soon as available and in any event within 90 days after
the end of each fiscal year of the Borrower, a copy of the annual report for
such year for the Borrower and its subsidiaries, containing financial statements
for such year certified in a manner acceptable to the Lender by KPMG LLP or
other independent public accountants reasonably acceptable to the Lender;
(iii) as soon as possible and in any event within five Business
Days after the occurrence of each Event of Default and each event which, with
the giving of notice or lapse of time, or both, would constitute an Event of
Default, continuing on the date of such statement, a statement of the chief
financial officer of the Borrower setting forth details of such Event of Default
or event and the action which the Borrower has taken and proposes to take with
respect thereto;
(iv) promptly after the sending or filing thereof, copies of all
reports which the Borrower sends to any of its security holders, and copies of
all reports and registration statements
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which the Borrower or any subsidiary files with the Securities and Exchange
Commission or any national securities exchange;
(v) promptly after the filing or receiving thereof, copies of
all reports and notices which the Borrower or any subsidiary files under the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") with the
Internal Revenue Service or the Pension Benefit Guaranty Corporation or the U.S.
Department of Labor or which the Borrower or any subsidiary receives from such
Corporation; and
(vi) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any of its subsidiaries
as the Lender may from time to time reasonably request.
SECTION 4.02. Negative Covenants. So long as the Note shall remain
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unpaid or the Lender shall have any Commitment hereunder, the Borrower will not,
without the written consent of the Lender, declare or make any dividend payment
or other distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of capital stock of the
Borrower, or purchase, redeem or otherwise acquire for value (or permit any of
its subsidiaries to do so) any shares of any class of capital stock of the
Borrower or any warrants, rights or options to acquire any such shares, now or
hereafter outstanding, except that the Borrower may (i) declare and make any
dividend payment or other distribution payable in common stock of the Borrower,
and (ii) purchase, redeem or otherwise acquire shares of its common stock or
warrants, rights or options to acquire any such shares with the proceeds
received from the substantially concurrent issue of new shares of its common
stock, provided, that, immediately after giving effect to such proposed action,
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no Event of Default or event which, with the giving of notice or lapse of time,
or both, would constitute an Event of Default would exist.
ARTICLE V
EVENTS OF DEFAULT; CHANGE OF CONTROL
SECTION 5.01. Events of Default. If any of the following events
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("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of, or interest on,
the Note when the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower (or any of
its officers) under or in connection with this Agreement shall prove to have
been incorrect in any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 4.01 or 4.02 for a period of 30 days,
or (ii) the Borrower shall fail to perform or observe any other term, covenant
or agreement contained in this Agreement, the Note
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on its part to be performed or observed if such failure shall remain unremedied
for 30 days after written notice thereof shall have been given to such person by
the Lender; or
(d) The Borrower shall fail to pay any principal of or premium or
interest on any Debt (as defined in Section 4.02(a)) which is outstanding in a
principal amount of at least $500,000.00 in the aggregate (but excluding Debt
evidenced by the Note) of such Person or such subsidiary (as the case may be),
when the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt and
shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt; or any
such Debt shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment), redeemed, purchased
or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall
be required to be made, in each case prior to the stated maturity thereof; or
(e) The Borrower shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts generally,
or shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Borrower seeking to adjudicate
it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 120 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an order
for relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or for any substantial part of its property)
shall occur; or the Borrower shall take any corporate action to authorize any of
the actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$500,000.00 shall be rendered against the Borrower and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 60 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect;
then, and in any such event, the Lender (i) may, by notice to the
Borrower, declare its obligation to make Advances to be terminated, whereupon
the same shall forthwith terminate, and (ii) may, by notice to the Borrower,
declare the Note, all interest thereon and all other amounts payable under this
Agreement or the Note to be forthwith due and payable, whereupon the Note, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest, or further notice of any kind,
all of which are hereby expressly waived by the Borrower; provided, that in the
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event of an actual or deemed entry of an order for relief with respect to the
Borrower or any of its subsidiaries under the Federal Bankruptcy Code, (A) the
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obligation of the Lender to make Advances shall automatically be terminated and
(B) the Advances, the Note, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
SECTION 5.02. Change of Control. Upon the occurrence of a Change of
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Control (as defined below) of the Borrower, the Note, all interest thereon and
all other amounts payable under this Agreement or the Note shall become and be
forthwith due and payable, without presentment, demand, protest, or further
notice of any kind, all of which are hereby expressly waived by the Borrower.
The term "Change of Control" shall occur when (i) any Person or two or more
Persons acting in concert (other than Lender) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or indirectly,
of securities of the Borrower (or other securities convertible into such
securities) representing 40% or more of the combined voting power of all
securities of the Borrower entitled to vote in the election of directors, or
(ii) without the written consent of Baxter: (a) during any period of up to 24
consecutive months, commencing on and after the date of the Agreement,
individuals who at the beginning of such 24-month period were directors of the
Borrower shall cease for any reason to constitute a majority of the board of
directors of the Borrower; or (b) any Person or two or more Persons acting in
concert (other than Lender) shall have acquired by contract of otherwise, or
shall have entered into a contract or arrangement that, upon consummation, will
result in its or their acquisition of powers reserved to the board of directors
of the Borrower. Borrower and Lender acknowledge and agree that as of the date
of this Agreement, only four of seven members have been elected to the board of
directors of the Borrower and that the election of three directors to fill the
current vacancies on the board of directors of the Borrower (the "New
Directors"), with the written consent of the Lender to the New Directors so
elected (which consent shall not be unreasonably withheld), shall not constitute
a Change of Control for the purposes of Section 5.02(ii)(b).
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendments, Etc. No amendment or waiver of any
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provision of this Agreement or the Note, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Lender, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 6.02. Notices, Etc. All notices and other communications
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provided for hereunder shall be in writing (including facsimile communication)
and sent via overnight mail or facsimile, if to the Borrower, at its address at
2751 Centerville Road, Suite 210, Wilmington, DE 19808, Attention: Richard L.
Dunning; and if to the Lender, at its address at One Baxter Parkway, Deerfield,
Illinois 60015, Attention: Treasurer, with a copy to the General Counsel at
the same address; or, as to each party, at such other address as shall be
designated by such party in a written notice to the other party. All such
notices and communications shall, when sent via overnight mail
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or facsimile shall be effective when sent and confirmation of delivery is
received, except that notices to the Lender pursuant to the provisions of
Article I shall not be effective until actually received by the Lender.
SECTION 6.03. No Waiver; Remedies. No failure on the part of the
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Lender to exercise, and no delay in exercising, any right hereunder or under the
Note shall operate as a waiver thereof; nor shall any single or partial exercise
of any such right preclude any other or further exercise thereof or the exercise
of any other right. The remedies provided hereunder or under the Note are
cumulative and not exclusive of any remedies provided by law.
SECTION 6.04. Costs, Expenses and Taxes. The Borrower further agrees
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to pay on demand all costs and expenses, if any (including reasonable counsel
fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Note, and
all other instruments, documents and agreements executed in connection therewith
(the "Loan Documents"), including, without limitation, reasonable counsel fees
and expenses in connection with the enforcement of rights under this Section
6.04. In addition, the Borrower shall pay any and all stamp and other taxes
payable or determined to be payable in connection with the execution, delivery,
filing and recording of the Loan Documents and the other documents to be
delivered under the Loan Documents, and agrees to save the Lender harmless from
and against any and all liabilities with respect to or resulting from any delay
in paying or omission to pay such taxes.
SECTION 6.05. Right of Set-off. Upon the occurrence and during the
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continuance of any Event of Default the Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by the Lender
to or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under any Loan Document,
whether or not the Lender shall have made any demand under such Loan Document
and although such obligations may be unmatured. The Lender agrees promptly to
notify the Borrower after any such set-off and application, provided that the
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failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Lender under this Section are in addition to
other rights and remedies (including, without limitation, other rights of set-
off) which the Lender may have.
SECTION 6.06. Binding Effect. This Agreement shall be binding upon
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and inure to the benefit of the Borrower and the Lender and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Lender.
SECTION 6.07. Governing Law. This Agreement and the Note shall be
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governed by, and construed in accordance with, the laws of the State of
Illinois.
SECTION 6.08. Counterparts / Facsimile Signatures. This Agreement
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may be executed in any number of counterparts, each of which shall be deemed an
original. Facsimile signatures of the parties shall be binding with respect to
execution of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
NEXELL THERAPEUTICS INC.
By__________________________
Name:
Title:
BAXTER HEALTHCARE CORPORATION
By__________________________
Name:
Title
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EXHIBIT A
PROMISSORY NOTE
$20,000,000.00 Dated: June 30, 1999
FOR VALUE RECEIVED, the undersigned, Nexell Therapeutics Inc., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
BAXTER HEALTHCARE CORPORATION (the "Lender") the principal sum of Twenty
million dollars ($20,000,000.00) or, if less, the aggregate principal amount of
all Advances (as hereinafter defined) made by the Lender to the Borrower
pursuant to the Credit Agreement (as hereinafter defined) outstanding on the
Termination Date (as defined in the Credit Agreement), at such times as are
specified in the Credit Agreement.
The Borrower promises to pay interest on the principal amount of each
Advance from the date of such Advance until such principal amount is paid in
full, at such interest rates, and payable at such times, as are specified in the
Credit Agreement referred to below.
Both principal and interest are payable in lawful money of the United
States of America to the Lender at the account set forth in the Credit Agreement
in same day funds. Each Advance made by the Lender to the Borrower and the
maturity thereof, and all payments made on account of the principal amount
thereof, shall be recorded by the Lender and, prior to any transfer hereof,
endorsed on the grid attached hereto which is a part of this Promissory Note.
This Promissory Note is the Note referred to in, and is entitled to
the benefits of, the Credit Agreement dated as of June 30, 1999 (the "Credit
Agreement"), between the Borrower and the Lender. The Credit Agreement, among
other things, (i) provides for the making of advances (the "Advances") by the
Lender to the Borrower from time to time in an aggregate amount not to exceed
the U.S. dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Advance being evidenced by this Promissory Note, and
(ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
NEXELL THERAPEUTICS INC.
By__________________________
Name:
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
Principal Paid Unpaid
or Prepaid Principal
Amount of Balance Notation Made
Date Advance By
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