CERTIFIED COPY OF RESOLUTIONS
I do hereby certify that I am the duly elected, qualified, and acting
(Assistant) Secretary of CYGNUS, INC., a Delaware corporation, and, as such,
have custody of the records of the Corporation, including the minutes of the
meeting of the Board of Directors of said corporation duly called and held on
October 11, 1994, at which a quorum was present and acting throughout
and at which the following resolutions were duly adopted. I further certify
that said resolutions are in full force and effect as of the date hereof and
have not been modified or rescinded in any manner whatsoever.
RESOLVED, that the President, any Vice President, any Assistant Vice President,
the Treasurer, any Assistant Treasurer, Director, Finance & Acctg, or
______________________, each has full authority to execute and deliver in the
name and on behalf of the Corporation, instruments, documents, and agreements,
including amendments, renewals, or extensions thereof, with HELLER FINANCIAL,
INC. ("Lender"), providing for various financing arrangements with the
Corporation, including but not limited to, the leasing of equipment by, and
financing the acquisition of equipment for, the Corporation, the borrowing of
monies and the pledging, mortgaging, or otherwise encumbering of any or all of
the Corporation's assets pursuant to any sale and leaseback or other financing
arrangement, with or without recourse to the Corporation, all upon terms and
conditions and containing such provisions as such officer(s), employee(s), or
agent(s) may in her or their sole discretion deem advisable, necessary, or
expedient; and
FURTHER RESOLVED, that the authority herein conferred shall be deemed
retroactive and any and all acts authorized hereunder performed prior to the
date hereof are hereby approved and ratified; and that nothing herein contained
shall be deemed to affect the authority heretofore or hereafter conferred upon
any other person or persons, it being understood and agreed that the authority
herein conferred shall continue in full force and effect until written notice to
the contrary shall be actually received by Lender.
I further certify that there is no provision in the charter or by-laws of the
Corporation limiting the power of the Board of Directors to adopt the foregoing
resolutions, that the same are in conformity with the provisions of said charter
and by-laws, and that no shareholder consent is required to permit the action
provided for thereby.
I further certify that the persons whose names, titles, and signatures appear
below are elected or appointed, qualified, and acting officer(s), employee(s),
or agent(s) of the Corporation and hold on the date of this certificate the
office or position set forth opposite their respective names, and the signatures
appearing opposite their respective names are the genuine signatures of such
officer(s), employee(s), or agent(s).
NAME TITLE OR POSITION SIGNATURE
CFO, VP Finance
John C. Hodgman President, Cygnus Diagnostics /s/ John C. Hodgman
____________________ _____________________________ ______________________
Director, Finance
Frank A. Raab and Accounting /s/ Frank A. Raab
____________________ _____________________________ ______________________
____________________ _____________________________ ______________________
____________________ _____________________________ ______________________
____________________ _____________________________ ______________________
____________________ _____________________________ ______________________
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the
Corporation this 27th day of June, 1997.
CYGNUS, INC.
[ILLEGIBLE] (NAME)
CORPORATE SEAL [ASSISTANT] SECRETARY
Loan No.: 1910128-0001
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HELLER FINANCIAL
SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("AGREEMENT") is made this 27th day of June, 1997, by
and between CYGNUS, INC., a Delaware corporation ("DEBTOR"), whose business
address is 400 Penobscot Drive, Redwood City, California 94063 and HELLER
FINANCIAL, INC., a Delaware corporation ("SECURED PARTY"), whose address is
Commercial Equipment Finance Division, 500 West Monroe Street, Chicago,
Illinois 60661.
WITNESSETH:
1. SECURE PAYMENT. To secure payment of indebtedness in the principal sum of
up to One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00), as
evidenced by a note or notes executed and delivered by Debtor to Secured Party
(the "NOTES") and any obligations arising under this Agreement, and also to
secure any other indebtedness or liability of Debtor to Secured Party, direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising and no matter how acquired by Secured Party, including all
future advances or loans which may be made at the option of Secured Party (all
the foregoing hereinafter called the "INDEBTEDNESS"), Debtor hereby grants and
conveys to Secured Party a first priority continuing lien and security interest
in the personal property described on any schedule(s) now or hereafter attached
to or made a part hereof by reference hereto (the "SCHEDULES"), all products and
proceeds (including insurance proceeds) thereof, if any, and all substitutions,
replacements, attachments, additions, and accessions thereto (all of the
foregoing hereinafter called the "COLLATERAL.") The Schedules may be
supplemented from time to time to evidence the Collateral subject to this
Agreement.
Debtor shall request in writing each advance of principal under the Notes, which
request shall be satisfactory to Secured Party in form and substance. Each
advance shall be on and subject to the terms and conditions set forth in this
Agreement and shall otherwise be at Secured Party's sole discretion. Each Note
shall be in an amount not less than $500,000.00. No principal advance under any
Notes shall be made after July 31, 1997, and each advance shall reduce, dollar
for dollar, the amount that may be advanced under the Notes in the aggregate.
Amounts advanced and repaid may not be reborrowed.
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2. REPRESENTATIONS, WARRANTIES AND COVENANTS. Except as otherwise provided,
each representation and warranty made by Debtor in this Agreement shall be true,
correct and complete as of the date of this Agreement and as of the date of each
advance of funds under a Note. Debtor hereby represents, warrants and covenants
as follows:
(a) PERFORM OBLIGATIONS. Debtor shall pay as and when due all
Indebtedness secured by this Agreement and perform all of the obligations
contained in this Agreement according to its terms. Debtor shall use the loan
proceeds for business uses and not for personal, family, household, or
agricultural uses.
(b) PERFECTION. This Agreement and all necessary Uniform Commercial Code
filings together create a valid, perfected and first priority continuing lien
and security interest in the Collateral, securing the payment and performance of
the Indebtedness, and all filings and other actions necessary or desirable to
create, perfect and protect such security interest have been or will be duly
taken.
(c) COLLATERAL FREE AND CLEAR. Except as may be set forth on a Schedule,
the Collateral is and shall remain free and clear of all liens, claims, charges,
encumbrances and other security interests of any kind (other than the security
interest granted hereby). Debtor shall defend the title to the Collateral
against all persons and against all claims and demands whatsoever.
(d) POSSESSION AND OPERATING ORDER OF THE COLLATERAL. Debtor shall retain
possession of the Collateral at all times and shall not sell, exchange, assign,
loan, deliver, lease, mortgage, or otherwise dispose of the Collateral or any
part thereof without the prior written consent of Secured Party. Debtor shall
at all times keep the Collateral at the location[s] specified on the Schedules
(except for removals thereof in the usual course of business for temporary
periods). At Debtor's sole cost and expense, Debtor shall keep the Collateral
in good repair and condition and shall not misuse, abuse, waste or otherwise
allow it to deteriorate, except for normal wear and tear. Secured Party may
verify any Collateral in any reasonable manner which Secured Party may consider
appropriate, and Debtor shall furnish all reasonable assistance and information
and perform any acts which Secured Party may reasonably request in connection
therewith.
(e) INSURANCE. Debtor shall insure the Collateral against loss by fire
(including extended coverage), theft and other hazards, for its full insurable
value including replacement costs, with a deductible not to exceed Fifty
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Thousand and 00/100 Dollars ($50,000.00) per occurrence and without
co-insurance. In addition, Debtor shall obtain liability insurance covering
liability for bodily injury, including death and property damage, in an amount
of at least Five Million and 00/100 Dollars ($5,000,000.00) per occurrence or
such greater amount as may comply with general industry standards, or in such
other amounts as Secured Party may otherwise require. All policies of insurance
required hereunder shall be in such form, amounts, and with such companies as
Secured Party may approve; shall provide for at least thirty (30) days prior
written notice to Secured Party prior to any modification or cancellation
thereof; shall name Secured Party as loss payee or additional insured, as
applicable, and shall be payable to Debtor and Secured Party as their interests
may appear; shall waive any claim for premium against Secured Party; and shall
provide that no breach of warranty or representation or act or omission of
Debtor shall terminate, limit or affect the insurers' liability to Secured
Party. Certificates of insurance or policies evidencing the insurance required
hereunder along with satisfactory proof of the payment of the premiums therefor
shall be delivered to Secured Party. Debtor shall give immediate written notice
to Secured Party and to insurers of loss or damage to the Collateral and shall
promptly file proofs of loss with insurers. To the extent related to the
Collateral or liability or alleged liability of Secured Party, Debtor hereby
irrevocably appoints Secured Party as Debtor's attorney-in-fact, coupled with an
interest, for the purpose of obtaining, adjusting and canceling any such
insurance and endorsing settlement drafts. Debtor hereby assigns to Secured
Party, as additional security for the Indebtedness, all sums which may become
payable under such insurance.
In the event Debtor fails to provide Secured Party with evidence of the
insurance coverage required by this Agreement, Secured Party may purchase
insurance at Debtor's expense to protect Secured Party's interests in the
Collateral. This insurance may, but need not, protect Debtor's interests. The
coverage purchased by Secured Party may not pay any claim made by Debtor or any
claim that is made against Debtor in connection with the Collateral. Debtor may
later cancel any insurance purchased by Secured Party, but only after providing
Secured Party with evidence that Debtor has obtained insurance as required by
this Agreement. If Secured Party purchases insurance for the Collateral, Debtor
will be responsible for the costs of that insurance, including interest and
other charges imposed by Secured Party in connection with the placement of the
insurance, until the effective date of the cancellation or expiration of the
insurance. The costs of the insurance may be added to the Indebtedness. The
costs of the insurance may be more than the cost of insurance Debtor is able to
obtain on its own.
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(f) IF COLLATERAL ATTACHES TO REAL ESTATE. If the Collateral or any part
thereof has been attached to or is to be attached to real estate, an accurate
description of the real estate and the name and address of the record owner is
set forth on the Schedules. Debtor shall, on demand of Secured Party, furnish
Secured Party with a disclaimer or waiver of any interest in any such Collateral
satisfactory to Secured Party and signed by all persons having an interest in
the real estate. Notwithstanding the foregoing, the Collateral shall remain
personal property and shall not be affixed to realty without the prior written
consent of Secured Party.
(g) FINANCIAL STATEMENTS. Debtor shall furnish to Secured Party, as soon
as practicable, and in any event within sixty (60) days after the end of each
fiscal quarter of Debtor and each guarantor of all or any part of the
Indebtedness (each, a "GUARANTOR"), respectively, Debtor's and each Guarantor's
unaudited financial statements including in each instance, balance sheets,
income statements, and statements of cash flow, on a consolidated and
consolidating basis, as appropriate, and separate profit and loss statements as
of and for the quarterly period then ended and for the respective person's
fiscal year to date, prepared in accordance with generally accepted accounting
principles, consistently applied ("GAAP"). Debtor shall also furnish to Secured
Party, as soon as practicable, and in any event within ninety (90) days after
the end of each fiscal year of Debtor and each Guarantor, respectively, Debtor's
and each Guarantor's annual audited financial statements, including balance
sheets, income statements and statements of cash flow for the fiscal year then
ended, on a consolidated and consolidating basis, as appropriate, which have
been prepared by its independent accountants in accordance with GAAP. Such
audited financial statements shall be accompanied by the independent
accountant's opinion, which opinion shall be in form generally recognized as
"unqualified".
(h) AUTHORIZATION. Debtor is now, and will at all times remain, duly
licensed, qualified to do business and in good standing in every jurisdiction
where failure to be so licensed or qualified and in good standing would have a
material adverse effect on its business, properties or assets. The execution
and delivery of this Agreement, the Notes and any other documents and
instruments executed contemporaneously with or delivered pursuant to this
Agreement and the Notes, all as amended from time to time (collectively the
"LOAN DOCUMENTS"), have been duly authorized by Debtor and constitute the legal,
valid, and binding obligations of Debtor, enforceable against Debtor in
accordance with their respective terms. Debtor shall preserve and maintain its
existence and shall not wind up its affairs or otherwise dissolve. Debtor shall
not, without thirty (30) days prior written notice to Secured Party, (1) change
its name or so change its structure such that any financing statement or other
record notice becomes misleading or (2) change its principal place of
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business or chief executive or accounting offices from the address stated
herein.
(i) LITIGATION. Except for the arbitration before the International
Chamber of Commerce known as ICC No. 8309/HV, involving Cygnus Therapeutic
Systems, Inc. and Sanofi, S.A. (the "SANOFI ARBITRATION"), and otherwise as
disclosed by Debtor on a Schedule, there are no judgments outstanding against or
affecting Debtor, its officers, directors or affiliates or any part of the
Collateral and there are no actions, charges, claims, demands, suits,
proceedings, or investigations pending or threatened against Debtor or otherwise
affecting any part of the Collateral ("LITIGATION"). Debtor shall furnish to
Secured Party all information regarding any material Litigation as Secured Party
shall reasonably request and in any event shall promptly notify Secured Party in
writing of any Litigation against it which if decided against it would
materially and adversely affect the finances or operations of Debtor. For the
purposes of this subsection 2(i), Five Hundred Thousand and 00/100 Dollars
($500,000.00) shall be deemed material.
(j) NO CONFLICTS. Debtor is not in violation of any material term or
provision of its by-laws, or of any material agreement or instrument, decree,
order, or any statute, rule, or governmental regulation applicable to it. The
execution, delivery, and performance of the Loan Documents do not and will not
violate, constitute a default under, or otherwise conflict with any such term or
provision or result in the creation of any security interest, lien, charge, or
encumbrance upon any of the properties or assets of Debtor, except for the
security interest created hereunder.
(k) COMPLIANCE WITH LAWS. Debtor shall use and maintain the Collateral in
accordance with all applicable laws, regulations, ordinances, and codes and
shall otherwise comply in all material respects with all applicable laws, rules,
and regulations and duly observe all valid requirements of all governmental
authorities, and all statutes, rules and regulations relating to its business as
now in effect and which may be imposed in the future.
(l) TAXES. Debtor has timely filed all tax returns (federal, state,
local, and foreign) required to be filed by it and has paid or established
reserves for all taxes, assessments, fees, and other governmental charges in
respect of its properties, assets, income and franchises. Debtor shall promptly
file, pay and discharge all taxes, assessments, license fees (related to the
Collateral) and other governmental charges prior to the date on which penalties
are attached thereto, establish adequate reserves for the payments of such
taxes, assessments, and other governmental charges and make all required
withholding and other tax deposits, and, upon request, provide Secured Party
5
with receipts or other proof that any or all of such taxes, assessments, license
fees or governmental charges have been paid in a timely fashion; provided,
however, that nothing contained herein shall require the payment of any tax,
assessment, or other governmental charge so long as its validity is being
diligently contested in good faith and by appropriate proceedings diligently
conducted and Debtor has established cash reserves therefor in accordance with
GAAP. Should any stamp, excise, or other tax, including mortgage, conveyance,
deed, intangible, or recording taxes become payable in connection with or
respect of any of the Loan Documents, Debtor shall pay the same (including
interest and penalties, if any) and shall hold Secured Party harmless with
respect thereto.
(m) ENVIRONMENTAL LAWS/COMPLIANCE. Except as disclosed by Debtor on a
Schedule, Debtor (1) has not received any claim, summons, complaint, order, or
other notice that it is not in compliance with, or that any public authority is
investigating its compliance with, any federal, state, and local laws, rules,
regulations, orders, and decrees relating to pollution, hazardous substances,
waste, disposal or the protection of human health or safety, plant life or
animal life, natural resources or the environment, all as amended from time to
time (collectively, "Environmental Laws"), (2) has no knowledge of any material
violation of any Environmental Laws on or about its assets or property, and (3)
is not under any current clean up or other remediation program or order. Debtor
has obtained all environmental, health and safety permits necessary for the
operation of Debtor's business. Debtor is and shall remain in compliance, in
all respects, with the terms and conditions of all permits and with all
applicable Environmental Laws. Debtor shall provide Secured Party, promptly
following receipt, copies of any correspondence, notice, complaint, order, or
other document that it receives asserting or alleging a circumstance or
condition which requires or may require a cleanup, removal, remedial action or
other response by or on the part of Debtor under any Environmental Laws, or
which seeks damages or civil, criminal or punitive penalties from Debtor for an
alleged violation of any Environmental Laws. Debtor will promptly notify Secured
Party of any release, spill or material change in the nature or extent of any
hazardous substances or contaminants used, transported or stored by Debtor or
any subsidiary of Debtor, and allow no material change in the use thereof or of
Debtor's operations that would increase in any material amount the risk of
violation of any Environmental Laws without the express prior written approval
of Secured Party.
(n) REGULATIONS. No proceeds of the loans or any other financial
accommodation hereunder will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin security, as that term is defined in
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Regulations G, T, U, X of the Board of Governors of the Federal Reserve System.
(o) BOOKS AND RECORDS. Debtor shall maintain, at all times, true and
complete books and records in accordance with GAAP and consistent with those
applied in the preparation of Debtor's financial statements. At all reasonable
times, upon reasonable notice, and during normal business hours, Debtor shall
permit Secured Party or its agents to audit, examine and make extracts from or
copies of any of its books, ledgers, reports, correspondence, and other records
relating to the Collateral.
(p) SETOFF. Without limiting any other right of Secured Party, whenever
Secured Party has the right to declare any Indebtedness to be immediately due
and payable (whether or not it has so declared), Secured Party is hereby
authorized at any time and from time to time to the fullest extent permitted by
law, but shall not be obligated to, set off and apply against any and all
Indebtedness, any and all monies then or thereafter owed to Debtor by Secured
Party, whether or not the obligation to pay such monies owed by Secured Party is
then due. An election by Secured Party to exercise its right of setoff shall be
effective immediately upon such election even though any charge therefor is made
or entered on Secured Party's records subsequent thereto.
(q) STANDARD OF CARE; NOTICE OF CLAIMS. Debtor acknowledges and agrees
that Secured Party shall not be liable for any acts or omissions nor for any
error of judgment or mistake of fact or law other than as a sole and direct
result of Secured Party's gross negligence or willful misconduct. Debtor shall
give Secured Party written notice of any action or inaction by Secured Party or
any agent or attorney of Secured Party that may give rise to a claim against
Secured Party or any agent or attorney of Secured Party or that may be a defense
to payment of the Indebtedness or performance hereunder for any reason,
including commission of a tort (subject, in any event, to the first sentence of
this paragraph) or violation of any contractual duty or duty implied by law.
Debtor agrees that unless such notice is fully given as promptly as possible
(and in any event within thirty (30) days) after Debtor has knowledge, or with
the exercise of reasonable diligence should have had knowledge, of any such
action or inaction, Debtor shall not assert, and Debtor shall be deemed to have
waived, any claim or defense arising therefrom.
(r) INDEMNITY. Debtor shall indemnify, defend and hold Secured Party, its
parent, affiliates, officers, directors, agents, employees, consultants, persons
engaged by Secured Party to evaluate or monitor the Collateral, auditors and
attorneys harmless from and against any loss, cost, expense (including
reasonable attorneys' fees and costs and any consultants' or other
7
experts' fees and expenses), damage, penalty, fine, claim, lien, suit,
judgment or liability of every kind and nature arising directly or indirectly
out of (i) any Loan Document, (ii) the ownership, possession, lease,
operation, use, condition, sale, return, or other disposition of the
Collateral, except to the extent the loss, expense, damage or liability
arises solely and directly from Secured Party's gross negligence or willful
misconduct, (iii) any Environmental Laws, and (iv) the enforcement by Secured
Party of its rights or remedies hereunder. Any payments required to be made
hereunder shall be due and payable on demand.
(s) PAYMENTS SET ASIDE. If any payment is made to Secured Party or
Secured Party enforces its security interest or exercises its right of set off,
and such payment or part, or any proceeds of such enforcement or set off are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then to the
extent of such recovery, the Indebtedness or part thereof originally intended to
be satisfied, and all liens, security interests, rights and remedies therefor,
shall be revived and continued in full force and effect as if such payment had
not been made or such enforcement or set off had not occurred.
(t) EXPENSES AND ATTORNEYS' FEES. Debtor shall be liable for all charges,
costs, expenses and attorneys' fees incurred by Secured Party (including
allocated costs of internal counsel): (i) in perfecting, defending, protecting
or terminating its security interest in the Collateral, or any part thereof;
(ii) in the negotiation, execution, delivery, administration, amendment or
enforcement of the Loan Documents or the collection of any amounts due under any
Note or other Loan Document; (iii) in any lawsuit or other legal proceeding in
any way connected with any of the Loan Documents, including any contract or tort
or other actions, any arbitration or other alternative dispute resolution
proceeding, all appeals and judgment enforcement actions and any bankruptcy
proceeding (including any relief from stay and/or adequate protection motions,
cash collateral disputes, assumption/rejection motions and disputes or
objections to any proposed disclosure statement or reorganization plan).
(u) COMPLETE INFORMATION. No representation or warranty made by Debtor in
any Loan Document and no other document or statement now or hereafter furnished
to Secured Party by or on behalf of Debtor contains or will contain any
misstatement of a material fact or omit to state any material fact which would
make the statements contained therein misleading. Except as expressly set forth
in the Schedules, there is no fact known to Debtor that has or could have a
materially adverse affect on the business, operation,
8
condition (financial or otherwise), performance, properties or prospects of
Debtor or Debtor's ability to timely pay all of the Indebtedness and perform
all of its other obligations contained in or secured by this Agreement.
(v) COLLATERAL DOCUMENTATION. Debtor shall deliver to Secured Party prior
to any advance, satisfactory documentation regarding the Collateral to be
financed, including such invoices, canceled checks evidencing payments, or other
documentation as may be reasonably requested by Secured Party. Additionally,
Debtor shall satisfy Secured Party that Debtor's business and financial
information is as has been represented and there has been no material change in
Debtor's business, financial condition, or operations.
3. PREPAYMENT. Upon forty-five (45) days prior written notice to Secured
Party, Debtor may prepay in whole, but not in part, the then entire unpaid
principal balance of any Note, together with all accrued and unpaid interest
thereon to the date of such prepayment, provided that in addition to such
prepayment, Debtor shall pay (i) any and all other sums then due under any of
the Loan Documents, and (ii) a prepayment fee as liquidated damages and not as a
penalty, in a sum equal to one percent (1%) of the principal balance prepaid for
each full or partial twelve (12) month period by which the date of the
prepayment precedes the scheduled date of the final installment of principal
under the Note. The prepayment fee described in clause (ii) above shall also be
due upon the acceleration of the maturity date of any Note following the
occurrence of any Event of Default.
4. EVENTS OF DEFAULT. If any one of the following events (each of which is
herein called an "EVENT OF DEFAULT") shall occur: (a) Debtor fails to pay any
part of the Indebtedness within ten (10) calendar days of its due date, or (b)
any warranty or representation of Debtor in any Loan Document is materially
untrue, misleading or inaccurate, or (c) Debtor breaches or defaults in the
performance of any obligation under Section 2(c), (d) or (e) of this Agreement,
or (d) Debtor or any Guarantor breaches or defaults in the performance of any
other agreement or covenant under any Loan Document (other than as specified in
clauses (a), (b) and (c) of this Section 4), and such breach or default shall
continue for a period of thirty (30) days without being cured, or (e) Debtor or
any Guarantor breaches or defaults in the payment or performance of any debt or
other obligation owed by it to Secured Party or any affiliate of Secured Party,
and Secured Party has (without being obligated to do so) declared such event, an
Event of Default hereunder, or (f) Debtor breaches or defaults in the payment or
performance of any debt or other obligation, whether now or hereafter existing,
with an outstanding principal balance in excess of One Million and 00/100
Dollars ($1,000,000.00), and the same is subsequently accelerated, or (g) there
shall be a change in the beneficial ownership and control, directly or
indirectly, of the majority of
9
the outstanding voting securities or other interests entitled (without regard
to the occurrence of any contingency) to elect or appoint members of the
board of directors or other managing body of Debtor or any Guarantor (a
"CHANGE OF CONTROL"), or there is any merger, consolidation, dissolution,
liquidation, winding up or sale or other transfer of all or substantially all
of the assets of Debtor or any Guarantor pursuant to which there is a change
of control or cessation of Debtor or the Guarantor or the business of either,
or (h) other than pursuant to a decision rendered in the Sanofi Arbitration,
any money judgment is entered or filed against Debtor or any Guarantor in
excess of One Million and 00/100 Dollars ($1,000,000.00), or (i) Debtor or
any Guarantor shall file a voluntary petition in bankruptcy, shall apply for
or permit the appointment by consent or acquiescence of a receiver,
conservator, administrator, custodian or trustee for itself or all or a
substantial part of its property, shall make an assignment for the benefit of
creditors or shall be unable, fail or admit in writing its inability to pay
its debts generally as such debts become due, or (j) there shall have been
filed against Debtor or any Guarantor an involuntary petition in bankruptcy
or Debtor or any Guarantor shall suffer or permit the involuntary appointment
of a receiver, conservator, administrator, custodian or trustee for all or a
substantial part of its property or the issuance of a warrant of attachment,
diligence, execution or similar process against all or any substantial part
of its property; unless, in each case, such petition, appointment or process
is fully bonded against, vacated or dismissed within forty-five (45) days
from its effective date, but no later than ten (10) days prior to any
proposed disposition of any assets pursuant to any such proceeding, or (k) if
there is a material adverse change in the business or financial condition or
prospects of Debtor, or any Guarantor, then, and in any such event, Secured
Party shall have the right to exercise any one or more of the remedies
hereinafter provided.
Each of the following events shall also constitute an Event of Default hereunder
and upon the occurrence of any one or more of them, Secured Party shall have the
right to exercise any one or more of the remedies hereinafter provided:
(aa) If Debtor at any time has less than Fifteen Million Dollars
($15,000,000.00) of cash and cash equivalents on hand;
(bb) If Debtor at any time has a tangible net worth as determined in
accordance with GAAP (but excluding trademarks, service marks, patents, patent
rights, capitalized development costs, monies due from affiliates of Debtor or
shareholders of Debtor or affiliates of Debtor, goodwill and similar intangible
assets) of less than Twelve Million Dollars ($12,000,000.00); or
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(cc) If, pursuant to a decision rendered in the Sanofi Arbitration,
Debtor is obligated to pay a liquidated sum in excess of $15,000,000.00 (whether
or not additional relief is also awarded).
5. REMEDIES. Upon the occurrence of an Event of Default, in addition to all
rights and remedies of a secured party under the Uniform Commercial Code,
Secured Party may, at its option, at any time (a) declare the Indebtedness to be
immediately due and payable; (b) without demand or legal process, enter the
premises where the Collateral may be found and take possession of and remove the
Collateral, all without charge to or liability on the part of Secured Party; or
(c) require Debtor to assemble the Collateral, render it unusable, and crate,
pack, ship, and deliver the Collateral to Secured Party in such manner and at
such place as Secured Party may require, all at Debtor's sole cost and expense.
DEBTOR HEREBY EXPRESSLY WAIVES ITS RIGHTS, IF ANY, TO (1) PRIOR NOTICE OF
REPOSSESSION AND (2) A JUDICIAL OR ADMINISTRATIVE HEARING PRIOR TO SUCH
REPOSSESSION. Secured Party may, at its option, ship, store and repair the
Collateral so removed and sell any or all of the Collateral at a public or
private sale or sales. Unless the Collateral is perishable or threatens to
decline speedily in value or is of a type customarily sold on a recognized
market, Secured Party will give Debtor reasonable notice of the time and place
of any public sale thereof or of the time after which any private sale or any
other intended disposition thereof is to be made, it being understood and agreed
that Secured Party may be a buyer at any such sale and Debtor may not, either
directly or indirectly, be a buyer at any such sale. The requirements, if any,
for reasonable notice will be met if such notice is mailed postage prepaid to
Debtor at its address shown above, at least five (5) days before the time of
sale or disposition. After any such sale or disposition, Debtor shall be liable
for any deficiency of the Indebtedness remaining unpaid, with interest thereon
at the rate set forth in the related Notes.
6. CUMULATIVE REMEDIES/MARSHALING. All remedies of Secured Party hereunder
are cumulative, are in addition to any other remedies provided for by law or in
equity, or under any other provision of any of the Loan Documents, or under the
provisions of any other document, instrument or other writing executed by Debtor
or any third party in favor of Secured Party, all of which may, to the extent
permitted by law, be exercised concurrently or separately, and the exercise of
any one remedy shall not be deemed an election of such remedy or to preclude the
exercise of any other remedy. No failure on the part of Secured Party to
exercise, and no delay in exercising any right or remedy, shall operate as a
waiver thereof or in any way modify or be deemed to modify the terms of this
Agreement or any other Loan Document or the Indebtedness, nor shall any single
or partial exercise by Secured Party of any right or remedy preclude any other
or further exercise
11
of the same or any other right or remedy. Secured Party shall not be under
any obligation to marshal any assets in favor of Debtor, any Guarantor or any
other person or against or in payment of any or all of the Indebtedness.
7. ASSIGNMENT. Secured Party may transfer or assign all or any part of the
Indebtedness and the Loan Documents without releasing Debtor or the Collateral,
and upon such transfer or assignment the assignee or holder shall be entitled to
all the rights, powers, privileges and remedies of Secured Party to the extent
assigned or transferred. The obligations of Debtor shall not be subject, as
against any such assignee or transferee, to any defense, set-off, or
counter-claim available to Debtor against Secured Party and any such defense,
set-off, or counter-claim may be asserted only against Secured Party.
8. TIME IS OF THE ESSENCE. Time and manner of performance by Debtor of its
duties and obligations under the Loan Documents is of the essence. If Debtor
shall fail to comply with any provision of any of the Loan Documents, Secured
Party shall have the right, but shall not be obligated, to take action to
address such non-compliance, in whole or in part, and all moneys spent and
expenses and obligations incurred or assumed by Secured Party shall be paid by
Debtor upon demand and shall be added to the Indebtedness. Any such action by
Secured Party shall not constitute a waiver of Debtor's default.
9. ENFORCEMENT. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF ILLINOIS,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. AT SECURED PARTY'S ELECTION
AND WITHOUT LIMITING SECURED PARTY'S RIGHT TO COMMENCE AN ACTION IN ANY OTHER
JURISDICTION, DEBTOR HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION AND VENUE OF
ANY COURT (FEDERAL, STATE OR LOCAL) HAVING SITUS WITHIN THE STATE OF ILLINOIS,
EXPRESSLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO SERVICE BY
CERTIFIED MAIL, POSTAGE PREPAID, DIRECTED TO THE LAST KNOWN ADDRESS OF DEBTOR,
WHICH SERVICE SHALL BE DEEMED COMPLETED WITHIN TEN (10) DAYS AFTER THE DATE OF
MAILING THEREOF.
10. FURTHER ASSURANCE; NOTICE. Debtor shall, at its expense, execute and
deliver such documents and do such further acts as Secured Party may from time
to time reasonably require to assure and confirm the rights created or intended
to be created hereunder, to carry out the intention or facilitate the
performance of the terms of the Loan Documents or to assure the validity,
perfection, priority or enforceability of any security interest created
hereunder. Debtor agrees to execute any instrument or instruments necessary or
expedient for filing, recording, perfecting, notifying, foreclosing, and/or
liquidating of Secured Party's interest in the Collateral upon request of, and
as determined by, Secured Party, and Debtor hereby specifically
12
authorizes Secured Party to prepare and file Uniform Commercial Code
financing statements and other documents and to execute same for and on
behalf of Debtor as Debtor's attorney-in-fact, irrevocably and coupled with
an interest, for such purposes. All notices required or otherwise given by
either party shall be in writing and shall be delivered by hand, by
registered or certified first class United States mail, return receipt
requested, or by overnight courier to the other party at its address stated
herein or at such other address as the other party may from time to time
designate by written notice. All notices shall be deemed given when
received, when delivery is refused or when returned for failure to be called
for. Each provision of this Agreement shall remain in full force and effect
until all of the Indebtedness is fully, finally and indefeasibly satisfied
and, notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Debtor and Secured Party set forth in Sections
2(p), 2(r), 2(s), 2(t), 9 and 12 shall survive the full, final and
indefeasible satisfaction of the Indebtedness.
11. JOINT AND SEVERAL OBLIGATION. If this Agreement is executed by more than
one person as Debtor, each such Debtor hereby acknowledges it is jointly and
severally liable for and unconditionally guarantees the prompt and full payment
and performance of all obligations of each other Debtor hereunder and under the
other Loan Documents.
12. WAIVER OF JURY TRIAL. DEBTOR AND SECURED PARTY HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING IN CONNECTION WITH ANY OF THE LOAN DOCUMENTS. DEBTOR AND SECURED PARTY
ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THE
LOAN DOCUMENTS, AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS. DEBTOR AND SECURED PARTY FURTHER WARRANT AND REPRESENT
THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT EACH
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL.
13. COMPLETE AGREEMENT. The Loan Documents embody the entire agreement among
the parties hereto superseding all prior commitments, agreements,
representations, and understandings, whether written or oral relating to the
subject matter hereof, and may not be contradicted or varied by evidence of
prior, contemporaneous, or subsequent oral agreements or discussions of the
parties hereto. The Loan Documents may not be altered, modified or terminated
in any manner except by a writing duly signed by the parties thereto. Debtor
and Secured Party intend the Loan Documents to be valid and binding and no
provisions hereof and thereof which may be deemed unenforceable shall in any way
invalidate any other provisions of the Loan
13
Documents, all of which shall remain in full force and effect. The Loan
Documents shall be binding upon the respective successors, legal
representatives, and assigns of the parties. The Schedules are incorporated
herein by this reference and made a part hereof.
14. SECURITY DEPOSIT. On or before the date of this Agreement, Debtor shall
cause to be deposited with Secured Party in immediately available funds the
amount of One Million Three Hundred Thirty-One Thousand Four Hundred Eighty-Two
and 55/100 Dollars ($1,331,482.55) (the "SECURITY DEPOSIT"), which shall be held
by Secured Party as additional collateral for the due and punctual payment and
performance of the Indebtedness. Debtor hereby assigns, grants and sets over to
Secured Party all of Debtor's right, title, and interest in and to the Security
Deposit for such purpose. For so long as the Security Deposit is held by
Secured Party, the Security Deposit shall bear interest at the rate of five
percent (5%) per annum, which such interest shall be paid by Secured Party to
Debtor on the first business day of each consecutive calendar month beginning
August 1, 1997; provided, however, that no interest shall accrue on the Security
Deposit or be payable to Debtor at any time following the occurrence of an Event
of Default. If (i) (a) Debtor provides evidence reasonably satisfactory to
Secured Party that the Sanofi Arbitration has been fully and finally resolved
(through a final, binding decision in, or settlement of, the Sanofi
Arbitration), and (b) no Event of Default has occurred under Section 2(cc) above
or otherwise, or (ii) if no Event of Default has occurred, at any time after
July 31, 1997, then, in either case, upon Debtor's written request therefor,
Secured Party shall return the Security Deposit to Debtor.
IN WITNESS WHEREOF, Secured Party and Debtor have each signed this Agreement as
of the day and year first above written.
HELLER FINANCIAL, INC., CYGNUS, INC.
a Delaware corporation a Delaware corporation
By: /s/ Clifford A. Lehman By: /s/ John C. Hodgman
---------------------------- ----------------------------
Name: Clifford A. Lehman Name: John C. Hodgman
---------------------------- ----------------------------
Title: Senior Vice President Title: C.F.O.
---------------------------- ----------------------------
14
SCHEDULE
DESCRIPTION OF COLLATERAL
Description of Collateral (Full description including make, model and serial
number):
SEE SCHEDULE A ATTACHED HERETO AND MADE A PART HEREOF.
Place where Collateral is to be kept:
400 PENOBSCOT DRIVE, REDWOOD CITY, CA 94063
Other liens, encumbrances or security interests to which Collateral is or may be
subject, if any:
N/A
Other Collateral
N/A
Other:
If Collateral is attached or to be attached to real estate, set forth:
Address of Real Estate (Including County, block number, lot number, etc.):
N/A
Record Owner of Real Estate (Name and Address):
N/A
If the real estate at which the Collateral is to be kept is leased:
Name and Address of Lessor of Real Estate:
N/A
[ILLEGIBLE]
------------
Initials
15
SCHEDULE A
PAGE 1 OF 5
Schedule annexed to and made a part of a certain Security Agreement dated the
27th day of June 1997, or related documentation by and between the undersigned.
Description of Collateral (Quantity; New/Used; Model; General Description; and
if applicable, Engine and/or Serial Number), together with all products and
proceeds (including insurance proceeds) thereof, any, and if all increases,
substitutions, replacements, attachments, additions, and accessions thereto:
Asset
Place-in -------------------------------------- Manufacturer
Svc Date ID Description Vendor Serial Numbers Invoice #
- -------- ---- ----------- ------ -------------- ---------
9/1/96 4047 COMPAQ COMPUTER NETiS Technology, Inc. 6621HXS4E058 606259
9/1/96 4048 COMPAQ COMPUTER NETiS Technology, Inc. 6621HXS4E060 606259
9/1/96 4049 COMPAQ COMPUTER NETiS Technology, Inc. 6621HXS4E614 606259
9/1/96 4050 COMPAQ COMPUTER NETiS Technology, Inc. 6621HXS4E414 606260
9/1/96 4051 COMPAQ COMPUTER NETiS Technology, Inc. 6621HXS4E048 606260
9/1/96 4052 COMPAQ COMPUTER NETiS Technology, Inc. 6621HXS4E398 606260
9/1/96 4053 HP LASERJET PRINTER A & A Technology, Inc. USBF057703 606333
9/1/96 4054 COMPAQ COMPUTER A & A Technology, Inc. S6610HXS4Q956 607315
9/1/96 4055 COMPAQ COMPUTER A & A Technology, Inc. S6610HXS4R058 607315
9/1/96 4056 COMPAQ COMPUTER A & A Technology, Inc. S6610HXS4Q881 607315
9/1/96 4057 COMPAQ COMPUTER A & A Technology, Inc. S6610HXS4Q978 607315
9/1/96 4058 COMPAQ COMPUTER A & A Technology, Inc. S6610HXS4R054 607315
9/1/96 4059 COMPAQ LAPTOP COMPUTER NETiS Technology, Inc. J626HZN7L366 607395
9/1/96 4060 COMPAQ COMPUTER A & A Technology, Inc. 6629HVT5P020 608043
9/1/96 4061 COMPAQ COMPUTER A & A Technology, Inc. 6629HVTT5P111 608043
10/1/96 4046 METTLER BALANCE SCALE WWR Scientific 54504790
10/1/96 4062 COMPAQ COMPUTER A & A Technology, Inc. 6629HVT5R254 607523
10/1/96 4067 COMPAQ COMPUTER A & A Technology, Inc. 6634HVY6U141 609258
10/1/96 4076 AUTOCAD R13 CD-ROM CAD Systems Unlimited, Inc. 19463
10/1/96 4077 EQUITY EDGE FOR VALUATION ShareData, Inc. Proposal
10/1/96 4078 VOICE MAIL SYSTEM UPGRADE Octel Communications Corp. 5026847
10/1/96 4079 DISHWASHER VWR Scientific 77288 44973100
10/1/96 4080 COMPAQ COMPUTER A & A Technology, Inc. 6629HVT5R954 607523
10/1/96 4081 COMPAQ COMPUTER A & A Technology, Inc. 6629HVT5R951 607523
11/1/96 4075 COMPAQ COMPUTER Computerland 6634HVT3Q373 3032
11/1/96 4082 COMPAQ LAPTOP COMPUTER A & A Technology, Inc. J633HZM70317 609540
11/1/96 4084 COMPAQ COMPUTER A & A Technology, Inc. 6626HVT3P195 610141
11/1/96 4085 COMPAQ COMPUTER A & A Technology, Inc. 6626HVT3P232 610141
11/1/96 4086 COMPAQ COMPUTER A & A Technology, Inc. 6626HVT3P256 610141
11/1/96 4089 COMPAQ COMPUTER A & A Technology, Inc. 6626HVT3P206 610141
11/1/96 4092 COMPAQ COMPUTER A & A Technology, Inc. 6640HVT3P146 610261
11/1/96 4093 COMPAQ COMPUTER A & A Technology, Inc. 6626HVT3P261 610141
11/1/96 4095 COMPAQ COMPUTER A & A Technology, Inc. 6626HVT3P244 610141
11/1/96 4096 COMPAQ COMPUTER A & A Technology, Inc. 6640HVT3P155 610261
PAGE 2 OF 5
Asset
Place-in -------------------------------------- Manufacturer
Svc Date ID Description Vendor Serial Numbers Invoice #
- -------- ---- ----------- ------ -------------- ---------
11/1/96 4098 COMPAQ LAPTOP COMPUTER A & A Technology, Inc. J628HZL8P518 610503
11/1/96 4099 AUTO VESSEL ALIQUOT COLLECTOR SLR Systems, Inc. 6633BBM4P292/SG55702 Ck. Req.
11/1/96 4099 AUTO VESSEL ALIQUOT COLLECTOR SLR Systems, Inc. 6633BBM4P292/SG55702 95014
11/1/96 4099 AUTO VESSEL ALIQUOT COLLECTOR SLR Systems, Inc. 6633BBM4P292/SG55702 95019
11/1/96 4100 AUTO DIST. VESSEL ALIQ. COLLECTR SLR Systems, Inc. 6633BBM4P292/SG55702 Ck. Req.
11/1/96 4100 AUTO DIST. VESSEL ALIQ. COLLECTR SLR Systems, Inc. 6633BBM4P292/SG55702 95014
11/1/96 4100 AUTO DIST. VESSEL ALIQ. COLLECTR SLR Systems, Inc. 6633BBM4P292/SG55702 95019
11/1/96 4101 AUTO LIQUID CHROMATOGRAPHY SYS SLR Systems, Inc. 6633BBM4P292/SG55702 Ck. Req.
11/1/96 4101 AUTO LIQUID CHROMATOGRAPHY SYS SLR Systems, Inc. 6633BBM4P292/SG55702 95012
11/1/96 4101 AUTO LIQUID CHROMATOGRAPHY SYS SLR Systems, Inc. 6633BBM4P292/SG55702 95019
11/1/96 4102 CHEMDRAW PRO WIN SL CambrideSoft Corp. 24736
11/1/96 4103 MEETMAKER UPGRADE SOFTWARE On Technology Corp. 86548
11/1/96 4104 ORACLE7 WORKGROUP SERVER V7.3 Oracle Corp. 764163
12/1/96 4063 COMPAQ COMPUTER Computerland 6634HVT3Q223 2831
12/1/96 4068 COMPAQ COMPUTER Computerland 6634HVT3S281 2831
12/1/96 4069 COMPAQ LAPTOP COMPUTER Computerland J633HZM70037 3062
12/1/96 4070 COMPAQ COMPUTER Computerland 6634HVT3R360 2831
12/1/96 4072 COMPAQ LAPTOP COMPUTER Computerland J633HZM70023 3062
12/1/96 4073 COMPAQ COMPUTER Computerland 6634HVT3Q230 2831
12/1/96 4074 COMPAQ COMPUTER Computerland 6634HVT3S254 2831
12/1/96 4083 COMPAQ COMPUTER Computerland 6633HVT3Q322 3061
12/1/96 4087 COMPAQ COMPUTER Computerland 6634HVT3S300 3061
12/1/96 4088 COMPAQ COMPUTER Computerland 6634HVT3S103 3061
12/1/96 4091 COMPAQ COMPUTER Computerland 6634HVT3R355 2831
12/1/96 4094 COMPAQ COMPUTER Computerland 6634HVT3R396 3061
12/1/96 4097 COMPAQ COMPUTER NETiS Technology, Inc. 6633BBM4P292 608264
12/1/96 4105 COMPAQ COMPUTER Computerland 6640BBC3U322 10082
12/1/96 4106 COMPAQ COMPUTER Computerland 6640BBC3U105 10082
12/1/96 4107 COMPAQ COMPUTER Computerland 6640BBC3U322 10082
12/1/96 4108 COMPAQ COMPUTER Computerland 6638BBC3Q624 10082
12/1/96 4109 COMPAQ COMPUTER Computerland 6640BBC3U087 10082
12/1/96 4111 COMPAQ LAPTOP COMPUTER A & A Technology, Inc. J633HZM7031 611153
12/1/96 4112 COMPAQ COMPUTER A & A Technology, Inc. 6641HVT3Q006 610626
12/1/96 4113 COMPAQ COMPUTER A & A Technology, Inc. 6641HVT3W385 610570
12/1/96 4114 COMPAQ COMPUTER Computerland 6540BBC3U311 10082
12/1/96 4117 AUTOSAMPLER Perkin Elmer Corp. N2930010-A 10052
PAGE 3 OF 5
Asset
Place-in -------------------------------------- Manufacturer
Svc Date ID Description Vendor Serial Numbers Invoice #
- -------- ---- ----------- ------ -------------- ---------
12/1/96 41178 AUTOSAMPLE Perkin Elmer Corp. N2930100 10052
12/1/96 4123 BINARY QA/QC SYSTEM Perkin Elmer Corp. N2600515 998687
12/1/96 4123 BINARY QA/QC SYSTEM Perkin Elmer Corp. N2600515 998408
12/1/96 4124 COMPAQ COMPUTER A & A Technology, Inc. 6637HVT3Z866 609486
12/1/96 4125 QUATERNARY PUMP Perkin Elmer Corp. N2600510 16651
12/1/96 4126 HELPSTAR FOR WINDOWS Help Desk Automation Software 3515
12/1/96 4127 COMPAQ COMPUTER Computerland 6633BBM4Q304 3180
12/1/96 4128 COMPAQ COMPUTER A & A Technology, Inc. 6641HVT3W406 610261
12/1/96 4129 COMPAQ COMPUTER A & A Technology, Inc. 6637HVT3Z183 610261
12/1/96 4130 ELECTROANALYTICAL SYSTEMS Cypress Systems 90492
12/1/96 4131 HYPERION PILLAR SYSTEM Hyperion Software N/A (Customized software) 102555
12/1/96 4131 HYPERION PILLAR SYSTEM Hyperion Software N/A (Customized software) 407375
12/1/96 4131 HYPERION PILLAR SYSTEM Hyperion Software N/A (Customized software) 311445
12/1/96 4123A TURBO-GEL PLUS SOFTWARE Avatar Consulting 1022
1/1/97 4119 COMPAQ COMPUTER Computerland 6634HVT3Q526 3061
1/1/97 4121 COMPAQ COMPUTER A & A Technology, Inc. 6644BBM4P402 611153
1/1/97 4132 COMPAQ COMPUTER A & A Technology, Inc. 6645BBC1P405 612009
1/1/97 4133 COMPAQ COMPUTER A & A Technology, Inc. 6646BBC1P720 612164
1/1/97 4135 COMPAQ COMPUTER A & A Technology, Inc. 6643BBC3R635 612009
1/1/97 4136 COMPAQ COMPUTER A & A Technology, Inc. 6643BBC3R613 612009
1/1/97 4137 COMPAQ COMPUTER A & A Technology, Inc. 6645BBC1P440 612009
1/1/97 4138 COMPAQ LAPTOP COMPUTER A & A Technology, Inc. J629HZM70812 612009
1/1/97 4140 COMPAQ COMPUTER Computerland 6629HVT3V512 3061
1/1/97 4141 WINLIMS LAB DATABASE SYSTEM Quality Systems International N/A (Customized software) 168
1/1/97 4141 WINLIMS LAB DATABASE SYSTEM Quality Systems International N/A (Customized software) 224
1/1/97 4144 COMPAQ LAPTOP COMPUTER A & A Technology, Inc. J639HZM7G990 610467
1/1/97 4145 AUTOCAD FOR PC'S R12 & R13 OBBS, Inc. 5830
1/1/97 4146 AUTOCAD FOR PC'S R12 & R13 OBBS, INC. 5830
1/1/97 4147 COMPAQ COMPUTER CompUSA 57785
1/1/97 4149 COMPAQ COMPUTER A & A Technology, Inc. 6643BBC3U242 612009
1/1/97 4150 SAMPLE CANGER - STD MODEL Gilson, Inc. 139944
1/1/97 4152 COMPAQ COMPUTER Computerland 6638BBC3Q624 10082
2/1/97 4064 100-GALLON TANK MIXER Lee Industries C367A Ck. Req.
2/1/97 4064 100-GALLON TANK MIXER Lee Industries C367A 67765
PAGE 4 OF 5
Asset
Place-in -------------------------------------- Manufacturer
Svc Date ID Description Vendor Serial Numbers Invoice #
- -------- ---- ----------- ------ -------------- ---------
2/1/97 4064 100-GALLON TANK MIXER Lee Industries C367A 68025
2/1/97 4064 100-GALLON TANK MIXER Lee Industries C367A 68142
2/1/97 4065 LABGUARD FUME HOOD W/ CABINET ISEC Ind. 97788-14 97094053
2/1/97 4066 FLOOR SCALE Unlimited Scale of America 208828-AAA
2/1/97 4110 BECH TOP BIO-SAFETY FUME HOOD ISEC Inc. 69995ADX 96114027
2/1/97 4154 COMPAQ COMPUTER A & A Technology, Inc. 6650BBC1T612 612485
2/1/97 4155 COMPAQ COMPUTER A & A Technology, Inc. 6650BBC1T771 612485
2/1/97 4156 COMPAQ COMPUTER A & A Technology, Inc. 6650BBC1T766 612485
2/1/97 4160 COMPAQ COMPUTER A & A Technology, Inc. 6647BBC1Q717 612321
2/1/97 4161 ARTICULATED ROBOTIC SYSTEM CRS Robotics Corp. SRS-14-255A 600924
2/1/97 4162 SIGNA PLUS 8 PRINTER Computype International 1310-1042
2/1/97 4163 ONS LINE CARD Inter-Tel DataCom, Inc. 10745
2/1/97 4164 BIOCAD WKSTN & FRACTN COLLECTR PerSeptive Biosystems, Inc. 0461 117458
2/1/97 4165 STABILITY MONITORING SYSTEM Kaye Instruments, Inc. N/A (Customized software) 21278
2/1/97 4165 STABILITY MONITORING SYSTEM Kaye Instruments, Inc. N/A (Customized software) 22847
2/1/97 4165 STABILITY MONITORING SYSTEM Kaye Instruments, Inc. N/A (Customized software) 23172
3/1/97 4153 PNEUMATECH CFM DRYER K.C. Compressor Works, Inc. 0030839-IN
3/1/97 4166 DISSOLUTION SYSTEM Hanson Research Corp. 0197-0157, 0197-0170 53478
3/1/97 4167 HEADSPACE SAMPLER Perkin Elmer Corp. N6159129 52511
3/1/97 4168 AUTOSYSTEM Perkin Elmer Corp. 61N612245 47488
4/1/97 4169 COMPAQ COMPUTER NETiS Technology, Inc. 6639BBC3U388 703040
4/1/97 4170 COMPAQ COMPUTER NETiS Technology, Inc. 9947BBD2Z622 703044
4/1/97 4171 COMPAQ COMPUTER Computerland 12079
4/1/97 4172 COMPAQ COMPUTER NETiS Technology Inc. 6704BBL3D678 703112
4/1/97 4173 HP COMPUTER Computerland US64958325 12680
4/1/97 4174 HP "YODA" SERVER FOR POINTMAN InterVision Systems Tech., Inc. 374A29569 103843
4/1/97 4176 VACUUM PUMP 1/4 HP 115V Edwards High Vacuum Intern'l 972075138 475089
4/1/97 4177 POWDER MIXER CTRL SYSTEM Drivex 10070
4/1/97 4165A APPLICATION ENG. FOR #4165 Kaye Instruments, Inc. 23346
4/1/97 4175 DRAGON DICTATE POWER EDITION Safe Computing 364243
5/1/97 4189 COMPAQ COMPUTER A & A Technology, Inc. 3651BBC6054 702068
5/1/97 4190 COMPAQ COMPUTER A & A Technology, Inc. 6645BBC1Q681 702069
PAGE 5 OF 5
Asset
Place-in -------------------------------------- Manufacturer
Svc Date ID Description Vendor Serial Numbers Invoice #
- -------- ---- ----------- ------ -------------- ---------
5/1/97 4191 HP LASERJET PRINTER Computerland SUSB5128675 12080
5/1/97 4192 COMPAQ COMPUTER A & A Technology, Inc. 6651BBL3L258 701064
5/1/97 4193 COMPAQ SERVER UPGRADE NETiS Technology, Inc. 22711106, 27280001 704385
5/1/97 4194 COMPAQ PROLIANT 2500 SERVER NETiS Technology, Inc. D78HWA349 703286
5/1/97 4195 HP COMPUTER A & A Technology, Inc. US71155712 704225
5/1/97 4197 HP LASERJET PRINTER Computerland USKB163213 13648
5/1/97 4115 BENCH TOP PRESS W/ STL DIES-1 Machine Systems, Inc. 4003-1196-1 Ck. Req.
5/1/97 4115 BENCH TOP PRESS W/ STL DIES-1 Contract Manufacturing Inc. 4003-1196-1 60006
5/1/97 4116 BENCH TOP PRESS W/ STL DIES-2 Machine Systems, Inc. 4003-1196-2 Ck. Req.
5/1/97 4116 BENCH TOP PRESS W/ STL DIES-2 Contract Manufacturing Inc. 4003-1196-1 60006
5/1/97 4181 BENCH TOP PRESS W/ SPEC TOOLING Engineering Production Eq., Inc. 4112-0297-1 Ck. Req.
5/1/97 4181 BENCH TOP PRESS W/ SPEC TOOLING Engineering Production Eq., Inc. 4112-0297-1 6155
5/1/97 4182 LAMINATOR ASSEMBLY Engineering Production Eq., Inc. 4112-0297-3 Ck. Req.
5/1/97 4182 LAMINATOR ASSEMBLY Engineering Production Eq., Inc. 4112-0297-3 6155
5/1/97 4183 HYDROGEL STRIPPING SYSTEM Engineering Production Eq., Inc. 4112-0297-4 Ck. Req.
5/1/97 4183 HYDROGEL STRIPPING SYSTEM Engineering Production Eq., Inc. 4112-0297-4 6155
5/1/97 4184 "CLAM SHELL" PRESS Engineering Production Eq., Inc. 4112-297-2 Ck. Req.
5/1/97 4184 "CLAM SHELL" PRESS Engineering Production Eq., Inc. 4112-297-2 6155
5/1/97 4196 HYDROGEN GENERATOR Whatman, Inc. 75-36 211338
5/1/97 4198 GILSON 223 SAMPLE CHANGER #1 Gilson, Inc. 158918 143940
5/1/97 4199 GILSON 223 SAMPLE CHANGER #2 Gilson, Inc. 166088 143939
PLUS: POINT MAN SOFTWARE IN CONSTRUCTION-IN-PROGRESS
Point Man Software Pivotpoint, Inc. N/A Ck. Req.
Point Man Software Pivotpoint, Inc. N/A 29116
Point Man Software Pivotpoint, Inc. N/A 30134
Point Man Software Pivotpoint, Inc. N/A 30403
Point Man Software Pivotpoint, Inc. N/A 30406
Point Man Software Pivotpoint, Inc. N/A 30388
HELLER FINANCIAL, INC. CYGNUS, INC.
Secured Party Debtor
By: /s/ Clifford A. Lehman By: /s/ John C. Hodgman
---------------------------- ----------------------------
Name: Clifford A. Lehman Name: John C. Hodgman
---------------------------- ----------------------------
Title: Senior Vice President Title: C.F.O.
---------------------------- ----------------------------
Loan No.: 1910128-0001
- ------------------------------------------------------------------------------
HELLER FINANCIAL
PROMISSORY NOTE
$1,331,482.55 June 30, 1997
FOR VALUE RECEIVED, CYGNUS, INC., a Delaware corporation ("Maker"),
promises to pay to the order of HELLER FINANCIAL, INC., a Delaware corporation
(together with any holder of this Note, "Payee"), at its office located at 500
West Monroe Street, Chicago, Illinois 60661, or at such other place as Payee may
from time to time designate, the principal sum of One Million Three Hundred
Thirty-One Thousand Four Hundred Eighty-Two and 55/100 Dollars ($1,331,482.55),
together with interest thereon at a fixed rate equal to Nine and 39/100 percent
(9.39%) per annum. Principal and interest shall be payable in thirty-six (36)
consecutive monthly installments commencing August 1, 1997, and continuing on
the same day of each consecutive calendar month thereafter until this Note is
fully paid, each such installment in the amount of Forty-Two Thousand Five
Hundred Eighty-Two and 88/100 Dollars ($42,582.88); provided, however, that in
any and all events the final installment payment hereunder shall be in the
amount of the entire then outstanding principal balance hereunder, plus all
accrued and unpaid interest, charges and other amounts owing hereunder or under
the Security Agreement (defined below). All payments shall be applied first to
interest and then to principal. Interest shall be computed on the basis of a
360 day year comprised of 30-day months. Maker shall make an interest only
initial payment on July 1, 1997 of accrued interest from the loan disbursement
date through June 30, 1997.
Notwithstanding the foregoing, if at any time implementation of any
provision hereof shall cause the interest contracted for or charged herein or
collectable hereunder to exceed the applicable lawful maximum rate, then the
interest shall be limited to such applicable lawful maximum.
This Note is secured by the collateral described in the Security Agreement
dated June 27th, 1997, between Maker and Payee (the "SECURITY AGREEMENT;" and
together with all related documents and instruments, the "LOAN DOCUMENTS") to
which reference is made for a statement of the nature and extent of protection
and security afforded, certain rights of Payee and certain rights and
obligations of Maker, including Maker's rights, if any, to prepay the principal
balance hereof; provided, however, that in addition to any other sum payable
hereunder, under the Security Agreement or any of the other Loan Documents, in
the event of a prepayment of the principal balance hereunder, whether voluntary,
following acceleration or otherwise, Maker shall pay to Payee together with such
prepayment a Breakage Fee (defined below), which Breakage Fee, together with the
amounts payable under Section 3(ii) of the Security Agreement, if any,
represents liquidated damages to Payee for the loss of its bargain and not a
penalty. As used herein, the term "Breakage Fee" shall mean the amount, if any,
by which (A) the present value, in the aggregate, of the then remaining
installments of principal and interest due hereunder, absent the prepayment,
using a discount rate equal to (i) the yield to maturity as of the date two (2)
days prior to the date of the prepayment on United States Treasury securities
with a final maturity approximately equal to the remaining term hereof, absent
the prepayment, as published in THE WALL STREET JOURNAL, plus (ii) two and
50/100 percent (2.50%), exceeds (B) the then outstanding principal balance
hereunder, absent the prepayment.
Time is of the essence hereof. If payment of any installment or any other
sum due under this Note or the Loan Documents is not paid when due, Maker agrees
to pay a late charge equal to the lesser of (i) five cents (5CENTS) per dollar
on, and in addition to, the amount of each such payment, or (ii) the maximum
amount Payee is permitted to charge by law. In the event of the occurrence of
an Event of Default (as defined in the Security Agreement), then the entire
unpaid principal balance hereof with accrued and unpaid interest thereon,
together with all other sums payable under this Note or the Loan Documents,
shall, at the option of Payee and without notice or demand, become immediately
due and payable, such accelerated balance bearing interest until paid at the
rate of three and 00/100 percent (3.00%) per annum above the fixed rate set
forth in the first paragraph of this Note.
1
Maker and all endorsers, guarantors or any others who may at any time
become liable for the payment hereof hereby consent to any and all extensions of
time, renewals, waivers and modifications of, and substitutions or release of
security or of any party primarily or secondarily liable on, or with respect to,
this Note or any of the Loan Documents or any of the terms and provisions
thereof that may be made, granted or consented to by Payee, and agree that suit
may be brought and maintained against any one or more of them, at the election
of Payee, without joinder of the others as parties thereto, and that Payee shall
not be required to first foreclose, proceed against, or exhaust any security
herefor, in order to enforce payment of this Note by any one or more of them.
Maker and all endorsers, guarantors or any others who may at any time become
liable for the payment hereof hereby severally waive presentment, demand for
payment, notice of nonpayment, protest, notice of protest, notice of dishonor,
and all other notices in connection with this Note, filing of suit and diligence
in collecting this Note or enforcing any of the security herefor, and, without
limiting any provision of any of the Loan Documents, agree to pay, if permitted
by law, all expenses incurred in collection, including reasonable attorneys'
fees, and hereby waive all benefits of valuation, appraisement and exemption
laws.
If there be more than one Maker, all the obligations, promises, agreements
and covenants of Maker under this Note are joint and several.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF ILLINOIS WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. AT PAYEE'S ELECTION AND WITHOUT LIMITING
PAYEE'S RIGHT TO COMMENCE AN ACTION IN ANY OTHER JURISDICTION, MAKER HEREBY
SUBMITS TO THE EXCLUSIVE JURISDICTION AND VENUE OF ANY COURT (FEDERAL, STATE OR
LOCAL) HAVING SITUS WITHIN THE STATE OF ILLINOIS, EXPRESSLY WAIVES PERSONAL
SERVICE OF PROCESS AND CONSENTS TO SERVICE BY CERTIFIED MAIL, POSTAGE PREPAID,
DIRECTED TO THE LAST KNOWN ADDRESS OF MAKER, WHICH SERVICE SHALL BE DEEMED
COMPLETED WITHIN TEN (10) DAYS AFTER THE DATE OF MAILING THEREOF.
MAKER HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS NOTE. THIS WAIVER IS INFORMED AND
FREELY MADE. MAKER ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT PAYEE HAS ALREADY RELIED ON THE WAIVER
IN MAKING THE LOAN EVIDENCED BY THIS NOTE, AND THAT PAYEE WILL CONTINUE TO RELY
ON THE WAIVER IN ITS RELATED FUTURE DEALINGS. MAKER FURTHER WARRANTS AND
REPRESENTS 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.
Witness/Attest: CYGNUS, INC.
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
06/25/1997 Page 1
- -------------------------------------------------------------------------------
Cygnus
- -------------------------------------------------------------------------------
Compound Period......... Monthly
Nominal Annual Rate..... 9.390 %
Effective Annual Rate... 9.805 %
Periodic Rate........... 0.7825 %
Daily Rate.............. 0.02573%
CASH FLOW DATA
- -------------------------------------------------------------------------------
Event Start Date Amount Number Period End Date
- -------------------------------------------------------------------------------
1 Loan 07/01/1997 1,331,482.55 1
2 Payment 08/01/1997 42,582.88 36 Monthly 07/01/2000
AMORTIZATION SCHEDULE - Normal Amortization
Date Payment Interest Principal Balance
- -------------------------------------------------------------------------------
Loan 07/01/1997 1,331,482.55
1997 Totals 0.00 0.00 0.00
1 08/01/1997 42,582.88 10,418.85 32,164.03 1,299,318.52
2 09/01/1997 42,582.88 10,167.17 32,415.71 1,266,902.81
3 10/01/1997 42,582.88 9,913.51 32,669.37 1,234,233.44
4 11/01/1997 42,582.88 9,657.88 32,925.00 1,201,308.44
5 12/01/1997 42,582.88 9,400.24 33,182.64 1,168,125.80
6 01/01/1998 42,582.88 9,140.58 33,442.30 1,134,683.50
7 02/01/1998 42,582.88 8,878.90 33,703.98 1,100,979.52
8 03/01/1998 42,582.88 8,615.16 33,967.72 1,067,011.80
9 04/01/1998 42,582.88 8,349.37 34,233.51 1,032,778.29
10 05/01/1998 42,582.88 8,081.49 34,501.39 998,276.90
11 06/01/1998 42,582.88 7,811.52 34,771.36 963,505.54
12 07/01/1998 42,582.88 7,539.43 35,043.45 928,462.09
1998 Totals 510,994.56 107,974.10 403,020.46
13 08/01/1998 42,582.88 7,265.22 35,317.66 893,144.43
14 09/01/1998 42,582.88 6,988.86 35,594.02 857,550.41
15 10/01/1998 42,582.88 6,710.33 35,872.55 821,677.86
16 11/01/1998 42,582.88 6,429.63 36,153.25 785,524.61
17 12/01/1998 42,582.88 6,146.73 36,436.15 749,088.46
18 01/01/1999 42,582.88 5,861.62 36,721.26 712,367.20
19 02/01/1999 42,582.88 5,574.27 37,008.61 675,358.59
20 03/01/1999 42,582.88 5,284.68 37,298.20 638,060.39
21 04/01/1999 42,582.88 4,992.82 37,590.06 600,470.33
22 05/01/1999 42,582.88 4,698.68 37,884.20 562,586.13
23 06/01/1999 42,582.88 4,402.24 38,180.64 524,405.49
24 07/01/1999 42,582.88 4,103.47 38,479.41 485,926.08
1999 Totals 510,994.56 68,458.55 442,536.01
06/25/1997 Page 2
- -------------------------------------------------------------------------------
Cygnus
- -------------------------------------------------------------------------------
Date Payment Interest Principal Balance
- -------------------------------------------------------------------------------
25 08/01/1999 42,582.88 3,802.37 38,780.51 447,145.57
26 09/01/1999 42,582.88 3,498.91 39,083.97 408,061.60
27 10/01/1999 42,582.88 3,193.08 39,389.80 368,671.80
28 11/01/1999 42,582.88 2,884.86 39,698.02 328,973.78
29 12/01/1999 42,582.88 2,574.22 40,008.66 288,965.12
30 01/01/2000 42,582.88 2,261.15 40,321.73 248,643.39
31 02/01/2000 42,582.88 1,945.63 40,637.25 208,006.14
32 03/01/2000 42,582.88 1,627.65 40,955.23 167,050.91
33 04/01/2000 42,582.88 1,307.17 41,275.71 125,775.20
34 05/01/2000 42,582.88 984.19 41,598.69 84,176.51
35 06/01/2000 42,582.88 658.68 41,924.20 42,252.31
36 07/01/2000 42,582.88 330.57 42,252.31 0.00
2000 Totals 510,994.56 25,068.48 485,926.08
Grand Totals 1,532,983.68 201,501.13 1,331,482.55
06/25/1997 Page 3
- -------------------------------------------------------------------------------
Cygnus
- -------------------------------------------------------------------------------
Last interest amount decreased by 0.05 due to rounding.
Loan No.: 1910128-0001
- -------------------------------------------------------------------------------
HELLER FINANCIAL
DELIVERY AND ACCEPTANCE CERTIFICATE
TO: HELLER FINANCIAL, INC.
The undersigned ("Debtor"), hereby certifies that all of the personal
property described on Schedule A attached hereto, which is incorporated herein
by this reference, is collateral ("Collateral") described in the Security
Agreement between Heller Financial Inc. ("Secured Party") and Debtor dated
June 27, 1997, ("Security Agreement"). All of the Collateral has been
delivered and received .and examined and/or tested, and is in good order and
operating condition and in all respects satisfactory. Debtor hereby
unconditionally accepts the Collateral "AS IS."
Debtor hereby acknowledges that it has reviewed and read all of the
conditions and terms of the Security Agreement and hereby reaffirms and agrees
to be bound by all of those terms and conditions. Debtor warrants and
represents that Secured Party has a first priority perfected security interest
in the Collateral under the Security Agreement and that each location of the
Collateral is open, operational, and doing business. Debtor further
acknowledges that it has not granted nor will it grant to any party any interest
in the Collateral.
Debtor further acknowledges that it has selected and specified the
Collateral; SECURED PARTY HAS MADE NO REPRESENTATIONS OR WARRANTIES OF
MERCHANTABILITY, FITNESS FOR PURPOSE, OR ANY OTHER REPRESENTATIONS OR WARRANTIES
OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, OR RELATING TO THE SELECTION,
PURCHASE, INSTALLATION, USE, OWNERSHIP, POSSESSION, OR OPERATION OF THE
COLLATERAL; that the Security Agreement is noncancellable; and that Debtor will
look solely to the manufacturer/supplier of the Collateral with respect to any
claims or disputes concerning the Collateral and it may not set-off or
counterclaim against Secured Party or any payments due under any promissory
note(s) made or given in connection with the Security Agreement.
Debtor, if a corporation, hereby certifies and represents to Secured Party,
that Debtor is duly authorized to execute and deliver this DELIVERY AND
ACCEPTANCE CERTIFICATE and that the officers thereof signing on its behalf are
duly authorized to execute and deliver same. This certificate will supplement
and not alter the terms of the Security Agreement and is given to induce Secured
Party to finance the Collateral.
CYGNUS, INC.
By: /s/ John C. Hodgman
--------------------------
Name: John C. Hodgman
--------------------------
Title: C.F.O.
--------------------------
Date: 6/27/97
--------------------------
Witness/Attest:
[ILLEGIBLE]
--------------------------
(Corporate Seal)
[ILLEGIBLE]
SCHEDULE A
PAGE 1 OF 5
Schedule annexed to and made a part of a certain Security Agreement dated the
27th day of June 1997, or related documentation.
Description of Collateral (Quantity; New/Used; Model; General Description;
and if applicable. Engine and/or Serial Number), together with all products
and proceeds (including insurance proceeds) thereof, any, and if all
increases, substitutions, replacements, attachments, additions, and
accessions thereto.
ASSET
PLACE-IN ------------------------------------------ MANUFACTURER
SYC DATE ID DESCRIPTION VENDOR SERIAL NUMBERS INVOICE #
- -------- ---- ----------- ------ -------------- ---------
9/1/96 4047 COMPAQ COMPUTER NETiS Technology, Inc. 6621HXS4E058 606259
9/1/96 4048 COMPAQ COMPUTER NETiS Technology, Inc. 6621HXS4E060 606259
9/1/96 4049 COMPAQ COMPUTER NETiS Technology, Inc. 6621HXS4E614 606259
9/1/96 4050 COMPAQ COMPUTER NETiS Technology, Inc. 6621HXS4E414 606260
9/1/96 4051 COMPAQ COMPUTER NETiS Technology, Inc. 6621HXS4E048 506260
9/1/96 4052 COMPAQ COMPUTER NETiS Technology, Inc. 6621HSX4E398 606260
9/1/96 4053 HP LASERJET PRINTER A & A Technology, Inc. USBF057703 606333
9/1/96 4054 COMPAQ COMPUTER A & A Technology, Inc. S6610HXS4Q956 507315
9/1/96 4055 COMPAQ COMPUTER A & A Technology, Inc. S6610HXS4R058 607315
9/1/96 4056 COMPAQ COMPUTER A & A Technology, Inc. S6610HXS4Q881 607315
9/1/96 4057 COMPAQ COMPUTER A & A Technology, Inc. S6610HXS4Q978 607315
9/1/96 4058 COMPAQ COMPUTER A & A Technology, Inc. S6610HXS4R054 607315
9/1/96 4059 COMPAQ LAPTOP COMPUTER NETiS Technology, Inc. J626HZN7L366 607395
9/1/96 4060 COMPAQ COMPUTER A & A Technology, Inc. 6629HVT5P020 608043
9/1/96 4061 COMPAQ COMPUTER A & A Technology, Inc. 6629HVTT5P111 608043
10/1/96 4046 METTLER BALANCE SCALE VWR Scientific 54504790
10/1/96 4062 COMPAQ COMPUTER A & A Technology, Inc. 6629HVT5R254 607523
10/1/96 4067 COMPAQ COMPUTER A & A Technology, Inc. 6634HVY6U141 609258
10/1/96 4076 AUTOCAD R13 CD-ROM CAD Systems Unlimited, Inc. 19463
10/1/96 4077 EQUITY EDGE FOR VALUATION ShareData, Inc. Proposal
10/1/96 4078 VOICE MAIL SYSTEM UPGRADE Octel Communications Corp. 5025847
10/1/96 4079 DISHWASHER VWR Scientific 77288 44973100
10/1/96 4080 COMPAQ COMPUTER A & A Technology, Inc. 6629HVTSR954 507523
10/1/96 4081 COMPAQ COMPUTER A & A Technology, Inc. 6629HVT5R951 507523
11/1/96 4075 COMPAQ COMPUTER Computerland 5634HVT3Q373 3032
11/1/96 4082 COMPAQ LAPTOP COMPUTER A & A Technology, Inc. J633HZW70317 609540
11/1/96 4084 COMPAQ COMPUTER A & A Technology, Inc. 6626HVT3P195 610141
11/1/96 4085 COMPAQ COMPUTER A & A Technology, Inc. 6626HVT3P232 610141
11/1/96 4086 COMPAQ COMPUTER A & A Technology, Inc. 6626HVT3P256 610141
11/1/96 4089 COMPAQ COMPUTER A & A Technology, Inc. 6625HVT3P206 610141
11/1/96 4092 COMPAQ COMPUTER A & A Technology, Inc. 6640HVT3P146 601251
11/1/96 4093 COMPAQ COMPUTER A & A Technology, Inc. 6626HVT3P261 610141
11/1/96 4095 COMPAQ COMPUTER A & A Technology, Inc. 6626HVT3P244 610141
11/1/96 4096 COMPAQ COMPUTER A & A Technology, Inc. 6840HVT3P155 610261
SCHEDULE A
Page 2 of 5
ASSET
PLACE-IN ------------------------------------------ MANUFACTURER
SYC DATE ID DESCRIPTION VENDOR SERIAL NUMBERS INVOICE #
- -------- ---- ----------- ------ -------------- ---------
11/1/96 4098 COMPAQ LAPTOP COMPUTER A & A Technology, Inc. J628HZL8P518 610503
11/1/96 4099 AUTO VESSEL ALIQUOT COLLECTOR SLR Systems, Inc. 6633BBM4P292/SG55702 Ck Req.
11/1/96 4099 AUTO VESSEL ALIQUOT COLLECTOR SLR Systems, Inc. 6633BBM4P292/SG55702 95014
11/1/96 4099 AUTO VESSEL ALIQUOT COLLECTOR SLR Systems, Inc. 6633BBM4P292/SG55702 95019
11/1/96 4100 AUTO VESSEL ALIQUOT COLLECTOR SLR Systems, Inc. 6633BBM4P292/SG55702 Ck Req.
11/1/96 4100 AUTO VESSEL ALIQUOT COLLECTOR SLR Systems, Inc. 6633BBM4P292/SG55702 95014
11/1/96 4100 AUTO VESSEL ALIQUOT COLLECTOR SLR Systems, Inc. 6633BBM4P292/SG55702 95019
11/1/96 4101 AUTO LIQUID CHROMATOGRAPHY SYS SLR Systems, Inc. 6633BBM4P292/SG55702 Ck Req.
11/1/96 4101 AUTO LIQUID CHROMATOGRAPHY SYS SLR Systems, Inc. 6633BBM4P292/SG55702 95012
11/1/96 4101 AUTO LIQUID CHROMATOGRAPHY SYS SLR Systems, Inc. 6633BBM4P292/SG55702 95019
11/1/96 4102 CHEMDRAW PRO WIN SL CambrigeSoft Corp. 24736
11/1/96 4103 MEETMAKER UPGRADE SOFTWARE OnTechnology Corp. 86548
11/1/96 4104 ORACLE7 WORKGROUP SERVER V7.3 Oracle Corp. 764153
12/1/96 4063 COMPAQ COMPUTER Computerland 6634HVT3Q223 2831
12/1/96 4068 COMPAQ COMPUTER Computerland 6634HVT3S281 2831
12/1/96 4069 COMPAQ LAPTOP COMPUTER Computerland 6633HZM70037 3062
12/1/96 4070 COMPAQ COMPUTER Computerland 6634HVT3R360 2831
12/1/96 4072 COMPAQ LAPTOP COMPUTER Computerland J633HZM70023 3062
12/1/96 4073 COMPAQ COMPUTER Computerland 6634HVT3Q230 2831
12/1/96 4074 COMPAQ COMPUTER Computerland 6634HVT3S254 2831
12/1/96 4083 COMPAQ COMPUTER Computerland 6633HVT3Q322 3061
12/1/96 4087 COMPAQ COMPUTER Computerland 6634HVT3S300 3061
12/1/96 4088 COMPAQ COMPUTER Computerland 6634HVT3S103 3061
12/1/96 4091 COMPAQ COMPUTER Computerland 6634HVT3R366 2831
12/1/96 4094 COMPAQ COMPUTER Computerland 6634HVT3R398 3061
12/1/96 4097 COMPAQ COMPUTER NETiS Technology, Inc. 6633BBM4P292 608264
12/1/96 4105 COMPAQ COMPUTER Computerland 6640BBC3U322 10082
12/1/96 4106 COMPAQ COMPUTER Computerland 6640BBC3U105 10082
12/1/96 4107 COMPAQ COMPUTER Computerland 6640BBC3U322 10082
12/1/96 4108 COMPAQ COMPUTER Computerland 6638BBC3Q624 10082
12/1/96 4109 COMPAQ COMPUTER Computerland 6640BBC3U087 10082
12/1/96 4111 COMPAQ LAPTOP COMPUTER A & A Technology, Inc. J633HZM7031 611153
12/1/96 4112 COMPAQ COMPUTER A & A Technology, Inc. 6641HVT3Q006 610626
12/1/96 4113 COMPAQ COMPUTER A & A Technology, Inc. 6641HVT3W385 610570
12/1/96 4114 COMPAQ COMPUTER Computerland 6640BBC3U311 10082
12/1/96 4117 AUTOSAMPLER Perkin Elmer Corp. N2930010-A 10052
SCHEDULE A
Page 3 of 5
ASSET
PLACE-IN ------------------------------------------ MANUFACTURER
SYC DATE ID DESCRIPTION VENDOR SERIAL NUMBERS INVOICE #
- -------- ---- ----------- ------ -------------- ---------
12/1/96 4118 AUTOSAMPLER Perkin Elmer Corp. N2930100 10052
12/1/96 4123 BINARY QA/QC SYSTEM Perkin Elmer Corp. N2600515 998687
12/1/96 4123 BINARY QA/QC SYSTEM Perkin Elmer Corp. N2600515 998408
12/1/96 4124 COMPAQ COMPUTER A & A Technology, Inc. 6637HVT3Z866 609486
12/1/96 4125 QUATERNARY PUMP Perkin Elmer Corp. N2600510 16651
12/1/96 4126 HELPSTAR FOR WINDOWS Help Desk Automation Software 3515
12/1/96 4127 COMPAQ COMPUTER Computerland 6633BBM4Q304 3180
12/1/96 4128 COMPAQ COMPUTER A & A Technology, Inc. 6641HVT3W406 610261
12/1/96 4129 COMPAQ COMPUTER A & A Technology, Inc. 6637HVT3Z193 610261
12/1/96 4130 ELECTROANALYTICAL SYSTEMS Cypress Systems 90492
12/1/96 4131 HYPERION PILLAR SYSTEM Hyperion Software N/A (Customized software) 102555
12/1/96 4131 HYPERION PILLAR SYSTEM Hyperion Software N/A (Customized software) 407375
12/1/96 4131 HYPERION PILLAR SYSTEM Hyperion Software N/A (Customized software) 311445
12/1/96 4123A TURBO-GEL PLUS SOFTWARE Avatar Consulting 1022
1/1/97 4119 COMPAQ COMPUTER Computerland 6634HVT3Q526 3061
1/1/97 4121 COMPAQ COMPUTER A & A Technology, Inc. 6644BBM4P402 611153
1/1/97 4132 COMPAQ COMPUTER A & A Technology, Inc. 6645BBC1P405 612009
1/1/97 4133 COMPAQ COMPUTER A & A Technology, Inc. 6646BBC1P720 612164
1/1/97 4135 COMPAQ COMPUTER A & A Technology, Inc. 6643BBC3R635 612009
1/1/97 4136 COMPAQ COMPUTER A & A Technology, Inc. 6643BBC3R613 612009
1/1/97 4137 COMPAQ COMPUTER A & A Technology, Inc. 6645BBC1P440 612009
1/1/97 4138 COMPAQ LAPTOP COMPUTER A & A Technology, Inc. J629HZM70812 612009
1/1/97 4140 COMPAQ COMPUTER Computerland 6629HVT3V512 3061
1/1/97 4141 WINLIMS LAB DATABASE SYSTEM Quality Systems International N/A (Customer software) 168
1/1/97 4141 WINLIMS LAB DATABASE SYSTEM Quality Systems International N/A (Customer software) 224
1/1/97 4144 COMPAQ LAPTOP COMPUTER A & A Technology, Inc. J639HZM7G990 610467
1/1/97 4145 AUTOCAD FOR PC'S R12 & R13 OBBS, Inc. 5830
1/1/97 4146 AUTOCAD FOR PC'S R12 & R13 OBBS, Inc. 5830
1/1/97 4147 COMPAQ COMPUTER CompUSA 57785
1/1/97 4149 COMPAQ COMPUTER A & A Technology, Inc. 6643BBC3U242 612009
1/1/97 4150 SAMPLE CANGER - STD MODEL Gilson, Inc. 139944
1/1/ 97 4152 COMPAQ COMPUTER Computerland 6638BBC3Q624 10082
2/1/97 4064 100-GALLON TANK MIXER Lee Industries C367A Ck Req.
2/1/97 4064 100-GALLON TANK MIXER Lee Industries C367A 67755
SCHEDULE A
Page 4 of 5
ASSET
PLACE-IN ------------------------------------------ MANUFACTURER
SYC DATE ID DESCRIPTION VENDOR SERIAL NUMBERS INVOICE #
- -------- ---- ----------- ------ -------------- ---------
2/1/97 4064 100-GALLON TANK MIXER Lee Industries C367A 68025
2/1/97 4064 100-GALLON TANK MIXER Lee Industries C367A 68142
2/1/97 4065 LABGUARD FUME HOOD W/CABINET ISEC Inc. 97788-14 97094053
2/1/97 4066 FLOOR SCALE Unlimited Scale of America 208828-AAA
2/1/97 4110 BECH TOP BIO-SAFETY FUME HOOD ISEC Inc. 69995ADX 96114027
2/1/97 4154 COMPAQ COMPUTER A & A Technology, Inc. 6650BBC1T612 612485
2/1/97 4155 COMPAQ COMPUTER A & A Technology, Inc. 6650BBC1T771 612485
2/1/97 4156 COMPAQ COMPUTER A & A Technology, Inc. 6650BBC1T766 612485
2/1/97 4160 COMPAQ COMPUTER A & A Technology, Inc. 6647BBC1Q717 612321
2/1/97 4161 ARTICULATED ROBOTIC SYSTEM CRS Robotics Corp SRS-14-255A 600924
2/1/97 4162 SIGMA PLUS 8 PRINTER Computype International 1310-1042
2/1/97 4163 ONS LINE CARD Inter-Tel DataCom, Inc 10754
2/1/97 4164 BIOCAD WKSTN & FRACTN COLLECTR PerSeptive Biosystems, Inc 0461 117458
2/1/97 4165 STABILITY MONITORING SYSTEM Kaye Instruments, Inc N/A (Customized software) 21278
2/1/97 4165 STABILITY MONITORING SYSTEM Kaye Instruments, Inc N/A (Customized software) 22847
2/1/97 4165 STABILITY MONITORING SYSTEM Kaye Instruments, Inc N/A (Customized software) 23172
3/1/97 4153 PNEUMATECH CFM DRYER K.C. Compressor Works, Inc. 0030839-IN
3/1/97 4166 DISSOLUTION SYSTEM Hanson Research Corp 0197-0157, 0197-0170 53478
3/1/97 4167 HEADSPACE SAMPLER Perkin Elmer Corp. N6159129 52511
3/1/97 4168 AUTOSYSTEM Perkin Elmer Corp. 61N612245 47488
4/1/97 4169 COMPAQ COMPUTER NETiS Technology, Inc. 6639BBC3U388 703040
4/1/97 4170 COMPAQ COMPUTER NETiS Technology, Inc. 9947BBD2Z622 703044
4/1/97 4171 COMPAQ COMPUTER Computerland 12079
4/1/97 4172 COMPAQ COMPUTER NETiS Technology, Inc. 6704BBL3D878 703112
4/1/97 4173 HP COMPUTER Computerland US64958325 12680
4/1/97 4174 HP "YCDA" SERVER FOR POINTMAN InterVision Systems Tech, Inc. 374A29569 103843
4/1/97 4176 VACUUM PUMP 1/4 HP 115V Edwards High Vacuum Intern'l 972075138 475089
4/1/97 4177 POWDER MIXER CTRL SYSTEM Drivex 10070
4/1/97 4165A APPLICATION ENG. FOR #4165 Kaye Instruments, Inc 23346
4/1/97 4175 DRAGON DICTATE POWER EDITION Safe Computing 364243
5/1/97 4189 COMPAQ COMPUTER A & A Technology, Inc. 3651BBC16054 702068
5/1/97 4190 COMPAQ COMPUTER A & A Technology, Inc. 6645BBC1Q681 702069
SCHEDULE A
Page 5 of 5
ASSET
PLACE-IN ------------------------------------------ MANUFACTURER
SYC DATE ID DESCRIPTION VENDOR SERIAL NUMBERS INVOICE #
- -------- ---- ----------- ------ -------------- ---------
5/1/97 4191 HP LASERJET PRINTER Computerland SUSB5128675 12080
5/1/97 4192 COMPAQ COMPUTER A & A Technology, Inc. 6651BBL3U258 701054
5/1/97 4193 COMPAQ SERVER UPGRADE NETiS Technology, Inc. 2711106, 27280001 704385
5/1/97 4194 COMPAQ PROLIANT 250C SERVER NETiS Technology, Inc. D78HWA349 703286
5/1/97 4195 HP COMPUTER A & A Technology, Inc. JS71155712 704225
5/1/97 4197 HP LASERJET PRINTER Computerland LSKB163213 13648
5/1/97 4115 BENCH TOP PRESS W/STL DIES-1 Machine Systems, Inc. 4003-1196-1 Ck Req
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5/1/97 4116 BENCH TOP PRESS W/STL DIES-2 Contract Manufacturing Inc. 4003-1196-2 60006
5/1/97 4181 BENCH TOP PRESS W/SPEC TOOLING Engineering Production Eq., Inc. 4112-0297-1 Ck Req
5/1/97 4181 BENCH TOP PRESS W/SPEC TOOLING Engineering Production Eq., Inc. 4112-0297-1 6155
5/1/97 4182 LAMINATOR ASSEMBLY Engineering Production Eq., Inc. 4112-0297-3 Ck Req
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5/1/97 4183 HYDROGEL STRIPPING SYSTEM Engineering Production Eq., Inc. 4112-0297-4 Ck Req
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5/1/97 4184 "CLAM SHELL" PRESS Engineering Production Eq., Inc. 4112-297-2 Ck Req
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5/1/97 4196 HYDROGEN GENERATOR Whatman, Inc 75-36 211338
5/1/97 4198 GILSON 223 SAMPLE CHANGER #1 Gilson, Inc. 158918 143940
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PLUS: POINT MAN SOFTWARE IN CONSTRUCTION-IN-PROGRESS
Point Man Software Pivotpoint, Inc. N/A Ck Req
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PROCEEDS REQUEST AND INSTRUCTIONS LETTER
June 24, 1997
Heller Financial, Inc.
500 West Monroe
Chicago, IL 60661
Attention: Commercial Equipment Finance Division
RE: CYGNUS, INC. ("BORROWER")
Gentlemen:
In connection with the Security Agreement dated June 27, 1997, by and
between Heller Financial, Inc. ("Heller"), and Borrower ("Agreement"), Borrower
hereby requests a loan in the principal amount of One Million Three Hundred
Thirty-One Thousand Four Hundred Eighty-Two and 55/100 Dollars ($1,331,482.55)
(the "Advance").
Borrower hereby authorizes and directs Heller to disburse the Advance, on
Borrower's behalf, to the following entities by check or wire transfer according
to the following instructions:
a. Cygnus, Inc. $1,331,482.55
400 Penobscot Drive
Redwood City, CA 94063
Borrower agrees that for purposes of the Agreement and all documents and
instruments related thereto, the Advance shall be deemed to have paid to
Borrower immediately upon its disbursement in accordance with the foregoing
instructions, notwithstanding that the receipt of all or any part of the Advance
by any intended recipient may be delayed by mail or other factors.
Cordially,
CYGNUS, INC.
a Delaware corporation
By: /s/ John C. Hodgman
-------------------------
Name: John C. Hodgman
-------------------------
Title: C.F.O.
-------------------------
Date: 6/27/97
-------------------------
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PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED
CERTIFICATE OF "CYGNUS, INC.", FILED IN THIS OFFICE ON THE FIFTH DAY OF
OCTOBER, A.D. 1995, AT 9 0'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE KENT
COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL OF STATE OF DELAWARE]
/s/ Edward J. Freel
[SECRETARY'S SEAL] ---------------------------------------
EDWARD J. FREEL, SECRETARY OF STATE
AUTHENTICATION: 7667280
DATE: 10-06-95
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CYGNUS, INC.
CYGNUS, INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware DOES HEREBY CERTIFY:
FIRST: The original Certificate of Incorporation of CYGNUS, INC. was
filed with the Secretary of State of Delaware on March 15, 1994.
SECOND: The Amended and Restated Certificate of Incorporation of
CYGNUS, INC. has been duly adopted in accordance with the provisions of
Sections 245 and 242 of the General Corporation Law of the State of Delaware
by the directors of the Corporation and such Amended and Restated Certificate
of Incorporation shall be amended and restated to read in full as follows:
I.
The name of the corporation is CYGNUS, INC. (the "Corporation").
II.
The address of the Corporation's registered office in the State of
Delaware is 32 Loockerman Square, Suite L-100, City of Dover, County of Kent
and the name of its registered agent at such address is The Prentice-Hall
Corporation System, Inc.
III.
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of Delaware.
IV.
The Corporation is authorized to issue two classes of shares to be
designated respectively Common Stock and Preferred Stock. The total number of
shares of all classes of stock which the Corporation has authority to issue
is Thirty-Five Million (35,000,000) shares, consisting of Thirty Million
(30,000,000) shares of Common Stock, each having a par value of one-tenth of
one cent ($.001) (the "Common Stock") and Five Million (5,000,000) shares of
Preferred Stock, each having a par value of one-tenth of one cent ($.001)
(the "Preferred Stock").
1
As to the Preferred Stock of the Corporation, the Board of Directors
shall have the power to issue any additional shares of Preferred Stock from
time to time in one or more series. The Board of Directors is hereby
authorized to fix or alter from time to time the voting powers and such
designations, preferences and relative, participating, optional or other
special rights of the shares of each such series and the qualifications,
limitations or restrictions of any wholly unissued series of Preferred Stock,
and to establish from time to time the number of shares constituting any such
series, or any of them.
The Board of Directors is further authorized to increase or decrease
(but not below the number of shares of any such series then outstanding) the
number of shares of any series, the number of which was fixed by it,
subsequent to the issue of shares of such series then outstanding, subject to
the limitations and restrictions stated in the resolution of the Board of
Directors originally fixing the number of shares of such series. If the
number of shares of any series is so decreased, then the shares constituting
such decrease shall resume the status which they had prior to the adoption of
the resolution originally fixing the number of shares of such series.
V.
The Corporation is to have perpetual existence.
VI.
The election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
VII.
The number of directors which constitute the whole Board of Directors of
the Corporation shall be designated in the Bylaws of the Corporation. Subject
to the rights of the holders of any series of Preferred Stock, no director
shall be removed without cause. Subject to any limitations imposed by law,
the Board of Directors or any individual director may be removed from office
at any time with cause by the affirmative vote of the holders of a majority
of the voting power of all the then-outstanding shares of voting stock of the
Corporation entitled to vote at the election of directors.
VIII.
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter, amend or
repeal the Bylaws of the Corporation. Subject to Section 6.1 of the Bylaws,
the Bylaws may also be altered or amended or new Bylaws adopted by the
affirmative vote of least two-thirds (2/3) of the combined voting power of
all the then-outstanding shares of the Corporation entitled to vote.
2
IX.
To the fullest extent permitted by the Delaware General Corporation Law
as the same exists or as may hereafter be amended, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director.
Neither any amendment nor repeal of this Article, nor the adoption of any
provision of this Certificate of Incorporation inconsistent with this
Article, shall eliminate or reduce the effect of this Article in respect of
any matter occurring, or any cause of action, suit or claim that, but for
this Article, would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.
X.
Each director shall serve until his or her successor is duly elected and
qualified or until his or her death, resignation or removal. No decrease in
the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director. No stockholder will be permitted to cumulate
votes at any election of directors.
Subject to the rights of the holders of any series of Preferred Stock,
any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other causes, and any newly created
directorships resulting from any increase in the number of directors, shall,
unless the Board of Directors determines by resolution that any such
vacancies or newly created directorships shall be filled by the stockholders,
except as otherwise provided by law, be filled only by the affirmative vote
of a majority of the directors then in office, even though less than a quorum
of the Board of Directors, and not by the stockholders. Any director elected
in accordance with the preceding sentence shall hold office for the remainder
of the full term of the director for which the vacancy was created or
occurred and until such director's successor shall have been elected and
qualified.
XI.
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of the State of
Delaware at such place or places as may be designated from time to time by
the Board of Directors or in the Bylaws of the Corporation.
XII.
No action shall be taken by the stockholders of the Corporation except
at an annual or special meeting of stockholders called in accordance with the
Bylaws and no action shall be taken by the stockholders by written consent in
lieu of a meeting.
3
XIII.
Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser
vote or no vote, but in addition to any affirmative vote of the holders of
the capital stock required by law or this Certificate of Incorporation, the
affirmative vote of the holders of at least two-thirds (2/3) of the combined
voting power of all of the then-outstanding shares of the Corporation
entitled to vote shall be required to alter, amend or repeal Articles VI,
VII, VIII, IX, X, XI, XII, XIII or any provision thereof.
4
XIV.
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, except as provided in Article XIII, and
all rights conferred upon stockholders herein are granted subject to this
reservation.
The undersigned incorporator hereby acknowledges that the foregoing
Certificate of Incorporation is his act and deed and that the facts stated
herein are true.
/s/ Gregory B. Lawless
---------------------------------------
Gregory B. Lawless
President, Chief Executive Officer and
Director
Dated: October 4, 1995
5