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Exhibit 10.22
SENIOR LOAN AND SECURITY AGREEMENT NO. 0062
THIS SENIOR LOAN AND SECURITY AGREEMENT NO. 0062 (this "Security
Agreement") is dated as of March 14, 1997 between LEUKOSITE, INC., a Delaware
corporation ("Borrower") and Phoenix Leasing Incorporated, a California
corporation ("Lender"). Borrower has previously entered into that certain Master
Equipment Lease between Lender, as Lessor, and Borrower, as Lessee, dated as of
October 3, 1994, as amended (the "Lease").
RECITALS
A. Borrower desires to borrow from Lender in one or more borrowings an
amount not to exceed $1,200,000 in the aggregate, and Lender desires to loan,
subject to the terms and conditions herein set forth, such amount to Borrower.
Such borrowings shall be evidenced by one or more Senior Secured Promissory
Notes (each, a "Note" and collectively, the "Notes"), in the form attached
hereto.
B. As security for Borrower's obligations to Lender under this Security
Agreement, the Notes and any other agreement between Borrower and Lender,
Borrower will grant to Lender hereunder a first perfected security interest in
certain of its equipment, machinery and fixtures, including but not limited to
leasehold improvements, computer, laboratory and test equipment, whether now
owned by Borrower or hereafter acquired pursuant to this Security Agreement, and
all substitutions and replacements of and additions, improvements, accessions
and accumulations to said equipment, machinery and fixtures, together with all
rents, issues, income, profits and proceeds therefrom including, but not limited
to, the items described in Exhibit A attached to each Note (collectively, the
"Collateral"). In addition to the foregoing Collateral, under certain
circumstances Borrower's obligations to Lender may also be secured by certain
"Additional Collateral" as provided below, in which case the term "Collateral"
shall include such Additional Collateral.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
SECTION 1. THE LOANS.
(a) General Terms. Subject to the terms and conditions of this
Security Agreement, Lender hereby agrees to make one or more senior secured
loans (each, a "Loan" and collectively, the "Loans") to
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Borrower, subject to the following conditions: (i) each Loan shall be evidenced
by a Note; (ii) the total principal amount of the Loans shall not exceed
$1,200,000 in the aggregate (the "Commitment") of which Commitment amount up to
$450,000 may be utilized for leasehold improvement Collateral provided Borrower
has closed an additional strategic corporate partnership and received an initial
cash infusion of at least $1,000,000 and a commitment for additional cash
infusion; (iii) at the time of each Loan, no Event of Default or event which
with the giving of notice or passage of time, or both, could become an Event of
Default shall have occurred and be continuing, as reasonably determined by
Lender and certified by Borrower; (iv) the amount of each Loan shall be at least
$25,000.00 except for a final Loan which may be less than $25,000.00; (v) Lender
shall not be obligated to make any Loan after December 31, 1997 ("Commitment
Period"); (vi) for each Loan, Borrower shall present to Lender a list of
proposed Collateral for approval by Lender in its sole discretion; (vii) for
each Loan, Borrower shall have provided Lender with each of the closing
documents described in Exhibit A hereto (which documents shall be in form and
substance acceptable to Lender); (viii) for all fundings, Borrower is performing
according to its business plan referred to as "LeukoSite, Inc.
Cashflow-Projection, Fiscal Years '97-'98 received by Lender on February 21,
1977" (the "Business Plan"), as may be amended from time to time in form and
substance acceptable to Lender; (ix) there shall be no material adverse change
in Borrower's condition, financial or otherwise, as reasonably determined by
Lender, and Borrower so certifies, from (yy) the date of the most recent
financial statements delivered by Borrower to Lender to (zz) the date of the
proposed Loan; (x) prior to payment in full of all Notes, Borrower shall not
offer any loan secured by (or leases of) any equipment, furniture or fixtures to
any other person or entity other than Lender, unless Lender declines to finance
such transaction or Borrower and Lender are unable to agree on the terms of such
financing; (xi) Borrower shall use the proceeds of all Loans hereunder for
working capital; (xii) at the time of each Loan, Borrower has reimbursed Lender
for all UCC filing and search costs and appraisal fees provided such fees for
all Loans total $1,000 or less; (xiii) all Collateral has been marked and
labeled by Lender or Lender's agent; and (xiv) Lender has received in form and
substance acceptable to Lender: (a) Borrower's interim financial statements
signed by a financial officer of Borrower, (b) hard copy evidence of Borrower's
$9,300,000 cash position and of Borrower's short term investments as of December
31, 1996; and (c) complete copies of the Borrower's audit reports for its most
recent fiscal year, which shall include at least the Borrower's balance sheet as
of the close of such year, and the Borrower's statement of income and retained
earnings and of changes in financial position for such year, prepared on a
consolidated basis and certified by independent public accountants. Such
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certificate shall not be qualified or limited because of restricted or limited
examination by such accountant of any material portion of the company's records.
Such reports shall be prepared in accordance with generally accepted accounting
principles and practices consistently applied.
(b) The Notes. Each Loan shall be evidenced by a Note. Each
Note shall bear interest and be payable and prepayable at the times and in the
manner provided therein. Following payment of the Indebtedness related to each
Note, Lender shall return such Note, marked "canceled," to Borrower.
(c) Specific Terms - Leasehold Improvement Collateral.
Regarding leasehold improvement Collateral, Borrower and Lender agree that if,
upon the expiration of the Commitment Period, the amount funded allocable to
leasehold improvement Collateral exceeds forty percent (40%) of the utilized
Commitment, then, at Lender's option, Borrower shall pay to Lender an amount
equal to such excess ("Excess Payment"). Such Excess Payment shall be held as
Additional Collateral and shall be applied to the end of loan position
applicable to leasehold improvement Collateral as set forth in the applicable
Note if no Event of Default has occurred. Borrower agrees to pay such amount to
Lender within thirty (30) days of Lender's invoice.
SECTION 2. SECURITY INTERESTS.
(a) Borrower hereby grants to Lender a perfected first
priority security interest in all Collateral.
(b) This Security Agreement secures (i) the payment of the
principal of and interest on the Notes and all other sums due thereunder and
under this Security Agreement (the "Indebtedness") and (ii) the performance by
Borrower of all of its other covenants now or hereafter existing under the
Notes, this Security Agreement and any other obligation owed by Borrower to
Lender (the "Obligations").
SECTION 3. BORROWER'S REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants that (a) it is a corporation in good
standing under the laws of the state of its incorporation, and duly qualified to
do business in each state where necessary to carry on its present business and
operations, including the jurisdiction(s) where the Collateral will be located;
(b) it has full authority to execute and deliver this Security Agreement and the
Notes and perform the terms hereof and thereof, and this Security Agreement and
the Notes have been duly
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authorized, executed and delivered and constitute valid and binding obligations
of Borrower enforceable in accordance with their terms; (c) the execution and
delivery of this Security Agreement and the Notes will not contravene any law,
regulation or judgment affecting Borrower or result in any breach of any
agreement or other instrument binding on Borrower; (d) no consent of Borrower's
shareholders or holder of any indebtedness, or filing with, or approval of, any
governmental agency or commission, which has not already been obtained or
performed, as appropriate, is a condition to the performance of the terms of
this Security Agreement or the Notes; (e) there is no action or proceeding
pending or threatened against Borrower before any court or administrative agency
which might have a materially adverse effect on the business, financial
condition or operations of Borrower; (f) Borrower owns and will keep all of the
Collateral free and clear of all liens, claims and encumbrances, and, except for
this Security Agreement, there is no deed of trust, mortgage, security agreement
or other third party interest against any of the Collateral; (g) Borrower has
good and marketable title to the Collateral; (h) all Collateral has been
received, installed and is ready for use and is satisfactory in all respects for
the purpose of this Security Agreement; (i) the Collateral is, and will remain
at all times under applicable law, removable personal property, which is free
and clear of any lien or encumbrance except in favor of Lender, notwithstanding
the manner in which the Collateral may be attached to any real property; (j) all
credit and financial information submitted to Lender herewith or at any other
time is and will at the time given be true and correct; and (k) the security
interest granted to Lender hereunder is a perfected first security interest.
SECTION 4. METHOD AND PLACE OF PAYMENT.
Borrower shall pay to Lender, at its office at the address specified in
the Notes, or such other address as Lender specifies in writing, all amounts
payable to it in respect of the principal of or interest on the Notes.
SECTION 5. AFFIRMATIVE COVENANTS REGARDING THE COLLATERAL.
Borrower covenants and agrees that so long as any portion of the
Indebtedness is unpaid and as long as any of the Obligations are outstanding it
will comply with the following covenants:
(a) Location; Inspection. All of the Collateral shall be located at the
address (the "Collateral Location") shown on Exhibit A to each Note and shall
not be moved without Lender's prior written consent. All of the
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records regarding the Collateral shall be located at 000 Xxxxx Xxxxxx,
Xxxxxxxxx, XX 00000. Lender shall have the right to inspect Collateral,
including records relating thereto, and Borrower's books and records at any time
(upon reasonable notification) during regular business hours, such books and
records to be maintained in accordance with generally accepted accounting
principles. Borrower shall be responsible for all labor, material and freight
charges incurred in connection with any removal or relocation of Collateral
which is requested by Borrower and consented to by Lender, as well as for any
charges due to the installation or moving of the Collateral. Payments under the
Notes and under this Security Agreement shall continue during any period in
which the Collateral is in transit during a relocation. Lender or its agent
shall xxxx and label Collateral, which labels (to be provided by Lender) shall
state that such Collateral is subject to a security interest of Lender, and
Borrower shall keep such labels on the Collateral as so labeled.
(b) Collateral Maintenance. Borrower will reasonably permit Lender to
inspect such item of Collateral and its maintenance records. Borrower will at
its sole expense comply with all applicable laws, rules, regulations,
requirements and orders with respect to the use, maintenance, repair, condition,
storage and operation of each item of Collateral. Except as required herein,
Borrower will not make any addition or improvement to any item of Collateral
that is not readily removable without causing material damage to any item or
impairing its original value or utility. Any addition or improvement that is so
required or cannot be so removed will immediately become Collateral of Lender.
(c) Service and Repair. With respect to computer equipment, other than
personal computers, Borrower has entered into, and will maintain in effect,
vendor's standard maintenance contract or another contract satisfactory to
Lender for a period equal to the term of each Loan and extensions thereto which
provides for the maintenance of the Collateral in good condition and working
order and repairs and replacement of parts thereof, all in accordance with the
terms of such maintenance contract. Borrower shall have that Collateral
certified for the vendor's standard maintenance agreement before Lender acquires
any interest in the Collateral as provided in this Security Agreement. With
respect to any other Collateral, Borrower will at its sole expense maintain and
service and repair any damage to each item of Collateral in a manner consistent
with prudent industry practice and Borrower's own practice so that such item of
Collateral is at all times (i) in the same condition as when delivered to
Borrower, except for ordinary wear and tear, and (ii) in good operating order
for the function intended by its manufacturer's warranties and recommendations.
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(d) Loss or Damage. Borrower assumes the entire risk of loss to the
Collateral through use, operation or otherwise. Borrower hereby indemnifies and
holds harmless Lender from and against all claims, loss of Loan payments, costs,
damages, and expenses relating to or resulting from any loss, damage or
destruction of the Collateral, any such occurrence being hereinafter called a
"Casualty Occurrence." Following a Casualty Occurrence, Borrower shall, on the
first day payment is due on each Note following the Casualty Occurrence, pay to
Lender an amount equal to the Balance Due (as defined below) for each item of
Collateral. The Balance Due for each item is the sum of: (i) all amounts for
each time which may be then due or accrued to the payment date, plus (ii) as of
such payment date, an amount equal to the product of the fraction specified
below times the sum of all remaining payments under the respective Note,
including the amount of any mandatory or optional payment required or permitted
to be paid by Borrower to Lender at the maturity of the Note. The numerator of
the fraction shall be the Collateral Value (as set forth on the applicable
schedule) of the item and the denominator shall be the aggregate Collateral
Value of all items under the Note. Upon the making of such payments, Lender
shall release such item of Collateral from its lien hereunder.
Notwithstanding the above, within thirty (30) days following a Casualty
Occurrence, Borrower may replace any item of Collateral which has suffered a
Casualty Occurrence with Collateral acceptable to Lender in its complete
discretion and, in such event, the provisions of the previous paragraph shall
not apply. Borrower's tender of such Collateral shall constitute a
representation and warranty that it is free of all liens, claims and
encumbrances, and otherwise qualifies as Collateral under this Security
Agreement. Following such tender, Lender shall have a first security interest in
such Collateral.
(e) Insurance. Borrower at its expense shall keep the Collateral
insured against all risks of physical loss or damage and in such amounts as
Lender shall approve, and such insurance shall provide for a loss payable
endorsement to Lender and/or any assignee of Lender for the full replacement
value of the Collateral. Borrower, at its expense, shall also maintain
commercial general liability insurance with respect to loss or damage for
personal injury, death, or property damage naming Lender and/or any assignee as
an additional insured in an amount not less than $2,000,000. Borrower will
provide Lender and/or any assignee of Lender with a certificate of insurance
from the insurer evidencing Lender's or such assignee's interest in the policy
of insurance. Such insurance shall cover any Casualty Occurrence to any unit of
Collateral. Notwithstanding
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anything in Section 5(d) or this Section 5(e) to the contrary, this Security
Agreement and Borrower's obligations hereunder shall remain in full force and
effect with respect to any unit of Collateral which is not subject to a Casualty
Occurrence.
SECTION 6. MISCELLANEOUS AFFIRMATIVE COVENANTS.
So long as any portion of the Indebtedness is unpaid and as long as any
of the Obligations are outstanding Borrower will:
(a) duly pay all governmental taxes and assessments at the
time they become due and payable;
(b) comply with all applicable governmental laws, rules and
regulations;
(c) maintain Lender's security interest in the Collateral as a
first and prior perfected security interest;
(d) furnish Lender with its annual audited financial
statements within ninety (90) days following the end of Borrower's fiscal year,
unaudited quarterly financial statements within thirty (30) days after the end
of each fiscal quarter, and within fifteen (15) days of the end of each month a
financial statement for that month prepared by Borrower, including all financial
information given to Borrower's Board of Directors, and including an income
statement and balance sheet, all of which shall be certified by an officer of
Borrower as true and correct and shall be prepared in accordance with generally
accepted accounting principles consistently applied, and such other information
as Lender may reasonably request;
(e) promptly (but in no event more than five (5) days after
the occurrence of such event) notify Lender of any material adverse change in
Borrower's condition during the commitment period and of the occurrence of any
Event of Default; and
(f) take all steps deemed by Lender reasonable or advisable to
validate or perfect the security interest of Lender in the Collateral.
SECTION 7. INDEMNITEES.
(a) General. Borrower will protect, indemnify and save harmless Lender
and any assignees on an after-tax basis from and against
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all liabilities, obligations, claims, damages, penalties, causes of action,
costs and expenses (including reasonable attorneys' fees and expenses), imposed
upon or incurred by or asserted against Lender or any assignee of Lender by
Borrower or any third party by reason of the occurrence or existence (or alleged
occurrence or existence) of any act or event relating to or caused by any
portion of the Collateral, or its purchase, acceptance, possession, use,
maintenance or transportation, including without limitation, consequential or
special damages of any kind, any failure on the part of Borrower to perform or
comply with any of the terms of this Security Agreement or the Notes, claims for
latent or other defects, claims for patent, trademark or copyright infringement
and claims for personal injury, death or property damage, including those based
on Lender's negligence or strict liability in tort and excluding only those
based on Lender's gross negligence or willful misconduct. In the event that any
action, suit or proceeding is brought against Lender by reason of any such
occurrence, Borrower, upon Lender's request, will, at Borrower's expense, resist
and defend such action, suit or proceeding or cause the same to be resisted and
defended by counsel designated by Lender.
(b) Tax Indemnity. Borrower agrees to reimburse Lender (or pay directly
if instructed by Lender) and any assignee of Lender for, and to indemnify and
hold Lender and any assignee harmless from, all fees (including, but not limited
to, license, documentation, recording and registration fees), and all sales,
use, gross receipts, personal property, occupational, value added or other
taxes, levies, imposts, duties, assessments, charges, or withholdings of any
nature whatsoever, together with any penalties, fines, additions to tax, or
interest thereon (the foregoing collectively "Impositions"), except same as may
be attributable to Lender's income, arising at any time prior to or during the
term of any Notes or of this Security Agreement, or upon termination or early
termination of this Security Agreement and levied or imposed upon Lender
directly or otherwise by any Federal, state or local government in the United
States or by any foreign country or foreign or international taxing authority
upon or with respect to (i) the Collateral, (ii) the exportation, importation,
registration, purchase, ownership, delivery, leasing, possession, use,
operation, storage, maintenance, repair, return, sale, transfer of title, or
other disposition thereof, (iii) the rentals, receipts, or earnings arising from
the Collateral, or any disposition of the rights to such rentals, receipts, or
earnings, (iv) any payment pursuant to this Security Agreement or the Notes, or
(v) this Security Agreement, the Notes or any transaction or any part hereof or
thereof.
(c) Survivability. Borrower's obligations under this Section 7 shall
survive the payment in full of all the Indebtedness and the
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performance of all Obligations with respect to acts or events occurring or
alleged to have occurred prior to the payment in full of all the Indebtedness
and the performance of all Obligations.
SECTION 8. RELEASE OF LIENS.
Upon payment of all of the Indebtedness and performance of all of the
Obligations, Lender shall execute UCC termination statements and such other
documents as Borrower shall reasonably require to evidence the release of
Lender's lien relating to the Collateral.
SECTION 9. ASSIGNMENT.
WITHOUT LENDER'S PRIOR WRITTEN CONSENT, BORROWER SHALL NOT (a) ASSIGN,
TRANSFER, PLEDGE, HYPOTHECATE OR OTHERWISE DISPOSE OF THIS SECURITY AGREEMENT,
ANY COLLATERAL, OR ANY INTEREST THEREIN, (b) LEASE OR LEND COLLATERAL OR PERMIT
IT TO BE USED BY ANYONE OTHER THAN BORROWER OR BORROWER'S EMPLOYEES OR (c) MERGE
INTO, CONSOLIDATE WITH OR CONVEY OR TRANSFER ITS PROPERTIES SUBSTANTIALLY AS AN
ENTIRETY TO ANY OTHER PERSON OR ENTITY. Lender may assign any of the Notes, this
Security Agreement or its security interest in any or all Collateral, or any or
all of the above, in whole or in part to one or more assignees or secured
parties without notice to Borrower. If Borrower is given notice of such
assignment it agrees to acknowledge receipt thereof in writing and Borrower
shall execute such additional documentation as Lender's assignee shall
reasonably require. Each such assignee and/or secured party shall have all of
the rights, but (except as provided in Section 9 hereof) none of the
obligations, of Lender under this Security Agreement, unless it expressly agrees
to assume such obligations in writing. Borrower shall not assert against any
assignees and/or secured party any defense, counterclaim or offset that Borrower
may have against Lender. Notwithstanding any such assignment, and providing no
Event of Default has occurred and is continuing, Lender, or its assignees,
secured parties, or their agents or assigns, shall not interfere with borrower's
right to quietly enjoy use of Collateral subject to the terms and conditions of
this Security Agreement. Subject to the foregoing, the Notes and this security
Agreement shall insure to the benefit of, and are binding upon, the successors
and assignees of the parties hereto.
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SECTION 10. DEFAULT.
(a) Events of Default. Any of the following events or conditions shall
constitute an "Event of Default" hereunder: (i) Borrower's failure to pay any
monies due to Lender hereunder or under any Note beyond the fifth (5th) day
after the same is due: (ii) Borrower's failure to comply with its obligations
under Section 5(e) or Section 9; (ii) any representation or warranty of Borrower
made in this Security Agreement or the Notes or in any other agreement,
statement or certificate furnished to lender in connection with this Security
Agreement or the Notes shall prove to have been incorrect in any material
respect when made or given; (iv) borrower's failure to comply with or perform
any term, covenant or condition of this Security Agreement or any Note or under
any other agreement between Borrower and Lender or under any lease of real
property covering the location of the Equipment if such failure to comply or
perform is not cured by Borrower within five (5) days after Borrower knows of
the noncompliance or nonperformance or notice from Lender; (v) seizure of any of
the collateral under legal process; (vi) the filing by or against Borrower or
any guarantor under any guaranty executed in connection with this Security
Agreement ("Guarantor") or a petition for reorganization or liquidation under
the Bankruptcy Code or any amendment thereto or under any other insolvency law
providing for the relief o debtors; (vii) the voluntary or involuntary making of
an assignment of a substantial portion of its assets by Borrower or by any
Guarantor for the benefit of its creditors, the appointment of a receiver or
trustee for borrower or any Guarantor or for any of borrower's or Guarantor's
assets, the institution by or against Borrower or any guarantor of any formal or
informal proceeding for dissolution, liquidation, settlement of claims against
or winding up of the affairs of borrower or any Guarantor provided that in the
case of all such involuntary proceedings, same are not dismissed within sixty
(60) days after commencement; or (viii) the making by Borrower or by any
Guarantor under any Guaranty executed in connection with this Loan of a transfer
of all or a material portion of borrower's or guarantor's assets or inventory
not in the ordinary course of business.
(b) Remedies. If any Event of Default has occurred, Lender may in its
sole discretion exercise one or more of the following remedies with respect to
any or all of the Collateral: (i) declare due any or all of the aggregate sum of
al remaining payments under the Notes, including the amount of any mandatory or
optional payment required or permitted to be paid by Borrower to Lender at the
maturity of the Notes ("Remaining Payments"); (ii) proceed by court action to
enforce Borrower's performance of the Notes and this Security Agreement or to
recover all damages and
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expenses incurred by Lender by reason of an Event of Default; (iii) without
court order or prior demand, enter upon the premises where the collateral is
located and take immediate possession of and remove it without liability of
Lender to Borrower or any other person or entity; (iv) terminate this Security
Agreement an sell the Collateral at public or private sale, or otherwise dispose
of, hold, use or lease any or all of the Collateral or (v) exercise any other
right or remedy available to it under applicable law. If Lender has declared due
any or all of the Remaining Payments, borrower will pay immediately to Lender
(a) the Remaining Payments, (b) all amounts which may be then due or accrued,
and (c) all other amounts due under the Security Agreement and under the Notes
(Lender's Return, as referred to below, means the amounts described in clauses
(a), (b) and (c) above). The net proceeds of any sale or lease of such
Collateral will be credited against Lender's Return. The net proceeds of a sale
of the Collateral pursuant to his Section 11(b) is defined as the sales price of
the Collateral less selling expenses, including, without limitation, costs of
remarketing the Collateral and all refurbishing costs and commissions paid with
respect to such remarketing. The net proceeds of a lease of the Collateral
pursuant to this Section 11(b) is defined as the amount equal to the rental
payments due under such lease (discounted at a rate per annum equal to the
discount rate for 13-week Treasury Bills as of the date on which Lender notifies
Borrower that this Security Agreement is terminated (the "Termination Date") (as
such rate is reported in the Money Rates column in the Wall Street Journal) or
the Termination Date or, if the Wall Street Journal is published (the "Discount
Rate")) plus the residual value of the Collateral at the end of the basic term
of such lease, as reasonably determined by Lender, and discounted at the
Discount Rate.
Borrower agrees to pay all reasonable internal and out-of-pocket costs
of Lender incurred in enforcement of this Security Agreement, the Notes or any
instrument or agreement required under this Security Agreement, including, but
not limited to, direct overhead costs of Lender allocated to the estimated time
spent by its employees (and the employees of its affiliates, including counsel
who are employees of Lender or its affiliates) and outside counsel legal fees
and litigation expenses and fees of collection agencies ("Remedy Expenses"). At
Lender's request, Borrower shall assemble the Collateral and make it available
to Lender at such time and location as Lender may designate. Borrower waives any
right it may have to redeem the Collateral.
Declaration that any or all amounts under this Security Agreement
and/or the Notes are immediately due and payable shall not terminate this
Security Agreement or any of the Notes unless Lender so notifies
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Borrower in writing. All such remedies are cumulative and may be enforced
separately or concurrently.
In addition to the foregoing remedies, if an Event of default hereunder
shall have occurred and be continuing, Lender shall have the right to cause its
representative or representatives to attend any meeting of borrower's Board of
Directors or any committee thereof. In such case, Borrower shall provide Lender
with the same notice of any such Board or committee meeting that is given to the
members of Borrower's board or committee thereof.
(c) Application of Proceeds. The proceeds of any sale of all or any
part of the Collateral and the proceeds of any remedy afforded to Lender by this
Security Agreement shall be paid to and applied as follows:
First, to the payment of reasonable costs and expenses of suit or
foreclosure, if any, and of the sale, if any, including, without limitation,
refurbishing costs, costs of remarketing and commissions related to remarketing,
all Remedy Expenses, all expenses, liabilities and advances incurred or made
pursuant to this Security Agreement or any Note by Lender in connection with
foreclosure, suit, sale or enforcement of this Security Agreement or the Notes,
and taxes, assessments or liens superior to Lender's security interest granted
by this Security Agreement.
Second, to the payment of all other amounts not described in item Third
below due under this Security Agreement and all Notes;
Third, to pay Lender an amount equal to Lender's Return, to the
extent not previously paid by Borrower; and
Fourth, to the payment of any surplus to Borrower or to whomever may
lawfully be entitled to receive it.
(d) Effect of Delay; Waiver; Foreclosure on Collateral. No delay or
omission of Lender, in exercising any right or power arising from any Event of
Default shall prevent Lender from exercising that right or power if the Event of
Default continues. No waiver of an Event of Default, whether full or partial, by
Lender or such holder shall be taken to extend to any subsequent Event of
Default, or to impair the rights of Lender in respect to any damages suffered as
a result of the Event of Default. The giving, taking or enforcement of any other
or additional security, collateral or guaranty for the payment or discharge of
the Indebtedness and performance of the Obligations shall in no way operate to
prejudice, waive or affect the security interest created by this Security
Agreement or
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any rights, powers or remedies exercised hereunder or thereunder. Lender shall
not be required first to foreclose on the Collateral prior to bringing an action
against borrower for sums owed to Lender under this Security Agreement or under
any Note.
SECTION 11. LATE PAYMENTS.
Borrower shall pay Lender an amount equal to 10% per month of
all amounts owed Lender by Borrower which are not paid when due, but in no event
an amount greater than the highest rate permitted by applicable law. If such
amounts have not been received by Lender at Lender's place of business or by
Lender's designated agent by the date such amounts are due under this Security
Agreement or the Notes, Lender shall xxxx borrower for such charges. Borrower
acknowledges that invoices for amounts due hereunder or under the Notes are sent
by Lender for Borrower's convenience only. Borrower's non-receipt of any invoice
will not relieve borrower of its obligation to make payments hereunder or under
the Notes.
SECTION 12. PAYMENTS BY LENDER.
If Borrower shall fail to make any payment or perform any act
required hereunder (including, but not limited to, maintenance of any insurance
required by Section 5(e)), then lender may, but shall not be required to, after
such notice to borrower as its reasonable under the circumstances, make such
payment or perform such act wit the same effect as if made or performed by
Borrower. Borrower will upon demand reimburse Lender for all sums paid and all
costs and expenses incurred in connection with the performance of any such act.
SECTION 13. FINANCING STATEMENTS.
Borrower will execute all financing statements pursuant to the
Uniform Commercial Code and all such other documents reasonably requested by
Lender to perfect Lender's security interests hereunder. Borrower authorizes
Lender to file financing statements signed only by Lender (where such
authorization is permitted by law) at all places where Lender deems necessary.
SECTION 14. NATURE OF TRANSACTION.
Lender makes no representation whatsoever, express or implied,
concerning the legal character of the transaction evidenced hereby, for tax or
other purpose.
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SECTION 15. SUSPENSION OF LENDER'S OBLIGATIONS.
The obligations of Lender hereunder will be suspended to the extent
that Lender is hindered or prevented from complying therewith because of labor
disturbances, including but not limited to strikes and lockouts, acts of God,
fires, floods, storms, accidents, industrial unrest, strike, acts of war,
insurrection, riot or civil disorder, any order, decree, law or governmental
regulations or interference, or any cause whatsoever not within the sole and
exclusive control of Lender.
SECTION 16. COMMITMENT FEE.
Borrower has paid to Lender a non-refundable commitment fee ("Fee") of
$1,000. The Fee shall be applied by Lender first to reimburse Lender for
out-of-pocket UCC and other search costs, and all appraisal fees incurred by
Lender, and then proportionally to the first monthly payment for each Note
hereunder in the portion that the Collateral Value for such Note bears to
Lender's entire commitment. Lender shall be responsible for transaction expenses
in excess of such $1,000.
SECTION 17. MISCELLANEOUS.
(a) Borrower shall provide Lender with such corporate resolutions,
financial statements, and other documents as Lender shall reasonably request
from time to time. (b) Borrower represents that the Collateral hereunder is used
solely for business purposes. (c) Time is of the essence with respect to this
Security agreement. (d) All notices hereunder shall be in writing, sent by
registered or certified mail, return receipt requested or by reliable messenger
or delivery service, and shall be directed, as the case may be, to Lender at
0000 Xxxxxx Xxxxxxxxx, Xxx Xxxxxx, Xxxxxxxxxx 00000, Attention:
________________. Such notices shall be effective on receipt if delivered
personally, five days after dispatch if mailed and one business day after
dispatch if sent by courier service. (e) Borrower acknowledges that Borrower has
read this Security Agreement and the Notes, understands them and agrees to be
bound by their terms and further agrees that this Security Agreement and the
Notes constitute the entire agreement between Lender and Borrower with respect
to the subject matter hereof and supersede all previous agreements, promises, or
representations. (f) This Security Agreement and the Notes may not be changed,
altered or modified except by an instrument signed by an officer or authorized
representative of Lender and Borrower. (g) Any failure of Lender to require
strict performance by Borrower or any waiver by Lender of any provision herein
or in a Note shall not be construed as a consent or
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waiver of any other breach of the same or any other provision. (h) If any
provision of this Security Agreement or the Notes until all Obligations of
Borrower to Lender have been met and all liabilities of Borrower to Lender and
any assignee have been paid in full. (j) Borrower will notify Lender at least 30
days before changing its name, principal place of business or chief executive
office. (k) Borrower will, at its expense, promptly execute and deliver to
Lender such documents and assurances (including financing statements) and take
such further action as Lender may reasonably request in order to carry out the
intent of this Security Agreement and Lender's rights and remedies. (1) Borrower
hereby appoints Lender (and each of Lender's officers, employees or agents
designed by Lender), with full power of substitution by Lender, as Borrower's
attorney, with power to execute and deliver on Borrower's behalf financing
statements and other documents necessary to perfect and/or give notice of
Lender's security interest in any of the Collateral.
SECTION 18. JURISDICTION AND WAIVER OF JURY TRIAL.
This Security, Agreement and the Notes shall be governed by and
construed under the laws of the State of California, excluding principles of
conflicts of laws. It is agreed that exclusive jurisdiction and venue for any
legal action between the parties arising out of or relating to this Security
Agreement or a Note shall be in the Superior Court for Marin County, California,
or, in cases where federal diversity jurisdiction is available, in the United
States District Court for the Northern District of California situated in San
Francisco. BORROWER, TO THE EXTENT IT MAY LAWFULLY DO SO, HEREBY WAIVES ITS
RIGHT TO TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS SECURITY
AGREEMENT, ANY NOTE, ANY SECURITY DOCUMENTS, OR ANY OTHER AGREEMENTS EXECUTED IN
CONNECTION HEREWITH.
IN WITNESS WHEREOF, Borrower and Lender have caused this Security Agreement to
be executed as of the date and year first above written.
LEUKOSITE, INC. PHOENIX LEASING INCORPORATED
BORROWER LENDER
By:_______________________________ By:_____________________________________
Its:______________________________ Its:____________________________________
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Xxxxxxxxxxxx Xxxxxxxx:
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
County of Middlesex
EXHIBITS AND SCHEDULES:
Exhibit A -- Closing Memorandum
17
EXHIBIT A to
SENIOR LOAN AND SECURITY AGREEMENT NO. 0062
CLOSING MEMORANDUM
1.* Duly executed Senior Loan and Security Agreement.
2. Duly executed Senior Security Promissory Note with Exhibit A
Collateral Description attached.
3. Insurance Certificates reflecting coverage required under Section 5(e)
of the Senior Loan and Security Agreement.
4.* Resolutions of Borrower's Board of Directors.
5. Agreement to Allow Removal of Personal Property.**
6.* UCC-1 Financing Statements and UCC Search(es) (county and state) for all
Equipment Locations showing Lender's filed UCC-1 financing statements
filed against Borrower with no UCC-1 financing statements by other
parties ahead of Lender with respect to the Collateral.
7. UCC Search.
8.* Payment of Commitment Fee.
9. Certificate of Chief Financial Officer stating that (i) there are no
liens, charges, security interests or other encumbrances that may
affect Lender's right, title and interest in the Collateral and there
are no UCC-1 financing statements filed or in the process of being
filed against any of the Collateral, (ii) Borrower is performing
according to Borrower's business plan, (iii) no material adverse
change has occurred in the financial condition of Borrower, (iv) no
default has occurred, and (v) the representations and warranties in
Section 3 of the Senior Loan and Security Agreement are true and
correct as if made on the date of the Loan.
10. Certificate from the Secretary of State of Borrower's state of
incorporation, and from the state in which Borrower's chief executive
office is located, if different, stating the Borrower is in good
standing
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or is authorized to transact business, as the case may be, dated not
more than thirty days prior to the first Loan.*
11.* Borrower's Business Plan.
12. Borrower's most recent financial statements.
13.* Borrower's Pro Forma Financials (Income Statement, Balance Sheet, Cash
Flow) showing monthly detail for the one year period immediately
preceding initial funding.
14. List of proposed Collateral.
15. Purchase documentation verifying Borrower's ownership of equipment.
16. See Section I of the Senior Loan and Security Agreement for additional
conditions to closing.
* First Loan only.
**Required if any Equipment is a fixture, i.e., attached to real property.
19
CORPORATE RESOLUTION TO BORROW
RESOLVED: That this corporation, LEUKOSITE, INC., borrow funds from Phoenix
Leasing Incorporated, a California corporation, ("Lender') and grant as
collateral for such borrowings such items of personal property and fixtures, and
upon such terms and conditions, as the officer or officers hereinafter
authorized, in their discretion, may deem necessary or advisable; provided,
however, that the aggregate principal amount of borrowings hereunder shall not
exceed the sum of $1,200,000 and together with the amount financed pursuant to
the Lease, shall not exceed the sum of $1,958,000
RESOLVED FURTHER: That:
_________________________ the President ____________________
Print or Type Name Signature
or _________________________ ___________________________ ____________________
Print or Type Name (Title of corporate officer) Signature
the President
of this corporation (this officer or officers authorized to act pursuant hereto
being hereinafter designated as "authorized officers"), are individually
authorized, directed and empowered, in the name of this corporation, to execute
and deliver to Lender, and Lender is requested to accept, any notes, security
agreements, and other documents or agreements that may be required by Lender in
connection with such borrowings.
RESOLVED FURTHER: That the authorized officers are individually authorized,
directed further and empowered, in the name of this corporation, to do or cause
to be done all such convenient acts and things as they shall deem necessary,
advisable, convenient or proper in connection with the execution and delivery of
any such notes, security agreements, and other documents or agreements and in
connection with or incidental to the carrying of the same into effect, including
without Imitator., the execution, acknowledgment, and delivery of all
instruments and documents which may reasonably be required by Lender under or in
connection with any such borrowing.
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RESOLVED FURTHER: That Lender is authorized to act upon these resolutions until
written notice of their revocation is delivered to Lender, and that the
authority hereby granted shall apply with equal force and effect to the
successors in office of the officers herein named.
I, ____________, Secretary of LEUKOSITE, INC., a corporation incorporated
under the laws of the State of Delaware, do hereby certify that the foregoing is
a full, true and correct copy of resolutions of the Board of Directors of the
said corporation, duly and regularly passed or adopted by the Board of Directors
of said corporation as required by law and by the by-laws of the said
corporation on the __ day of 19__.
I further certify that said resolutions are still in full force and effect
and have not been amended or revoked and that the specimen signatures appearing
above are the signatures of the officers authorized to sign for this corporation
by virtue of the said resolutions.
IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary, and
affixed the corporate seal of the said corporation, this __ day of ______, 1997.
AFFIX CORPORATE
SEAL HERE
________________________________________
SECRETARY OF
LEUKOSITE, INC.
a Delaware corporation
