Exhibit 10.18
OMNIBUS ADDENDUM TO
PROMISSORY NOTES AND RELATED AGREEMENTS
THIS OMNIBUS ADDENDUM (the "Addendum") is made by and among GENITOPE
CORPORATION ("Borrower"), XXXXXXXX X. XXXXXX, XX. ("Guarantor") and BANK ONE,
N.A. ("Lender") as of August 1, 2003.
WHEREAS, the parties hereto are also parties to that certain Promissory
Note in the principal amount of $3,000,000 (the "Secured Note"), which is
guaranteed by Guarantor and secured by a pledge of Guarantor's securities, and
that certain Promissory Note in the principal amount of $5,000,000 (the
"Unsecured Note"), and the Related Documents, as the same are defined in the
Secured Note and the Unsecured Note (collectively, the "Notes");
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower, Guarantor and Lender
agree to this Addendum as follows:
1. Lender hereby acknowledges that Borrower intends to make a public
offering of its equity securities (the "IPO") and consents thereto. Any
violation, breach, conflict or default under the terms of the Notes and the
Related Documents resulting from the IPO is hereby waived, and the provisions of
the Notes and the Related Documents causing such violation, breach, conflict or
default shall not be effective in the context of the IPO.
2. The Affirmative Covenant contained in the Business Loan Agreement and
entitled "Environmental Compliance and Reports" is hereby amended by adding
"other than in compliance with applicable law" at the end of the first sentence
thereof.
3. Each section titled "Default" in the Notes and Related Documents is
hereby amended as follows:
(a) The subsection titled "Insecurity" is deleted in its entirety
from each agreement.
(b) The subsection title "Material Adverse Change" is amended in
each agreement to read in its entirety as follows: "A material adverse change
occurs in Borrower's financial condition."
(c) The subsection titled "Failure to Comply with Laws" is amended
in each agreement by adding "where noncompliance would result in a material
adverse effect on Borrower's financial condition" to the end thereof.
(d) The subsection titled "Defaults with Respect to Third Parties"
is amended in each agreement by adding "in each case, where the result of such
non-payment or non-performance is a material adverse effect on Borrower's
financial condition" to the end thereof.
[signature page follows]
1.
Executed this _____ day of __________, 2003.
BORROWER: LENDER:
GENITOPE CORPORATION BANK ONE, N.A.
By: /s/ Xxx X. Xxxxxx Xx. By: /s/ Xxxxx X. Xxxxxx
_____________________________________ _______________________________
Title: CEO Title: Vice President
__________________________________ ____________________________
GUARANTOR:
/s/ Xxxxxxxx X. Xxxxxx, Xx.
________________________________________
Xxxxxxxx X. Xxxxxx, Xx.
2.
(BANK ONE LOGO)
PROMISSORY NOTE
BORROWER: GENITOPE CORPORATION LENDER: BANK ONE, N.A., WITH ITS MAIN XXXXXX
0000 XXXXXXX, XX 00 XX XXXXXXX, XXXXXXXX
XXXXXX, XX 00000 DALLAS PRIVATE CLIENT SERVICES LPO
0000 XXXX XXXXXX
XXXXXX, XX 00000
PRINCIPAL AMOUNT: $3,000,000.00 DATE OF NOTE: JULY 28, 2003
PROMISE TO PAY. GENITOPE CORPORATION ("BORROWER") PROMISES TO PAY TO BANK ONE,
N.A., WITH ITS MAIN OFFICE AT CHICAGO, ILLINOIS ("LENDER"), OR ORDER, IN LAWFUL
MONEY OF THE UNITED STATES OF AMERICA, THE PRINCIPAL AMOUNT OF THREE MILLION &
00/100 DOLLARS ($3,000,000.00) OR SO MUCH AS MAY BE OUTSTANDING, TOGETHER WITH
INTEREST ON THE UNPAID OUTSTANDING PRINCIPAL BALANCE OF EACH ADVANCE. INTEREST
SHALL BE CALCULATED FROM THE DATE OF EACH ADVANCE UNTIL REPAYMENT OF EACH
ADVANCE OR MATURITY, WHICHEVER OCCURS FIRST.
PAYMENT. BORROWER WILL PAY THIS LOAN IN ONE PAYMENT OF ALL OUTSTANDING PRINCIPAL
PLUS ALL ACCRUED UNPAID INTEREST ON DECEMBER 6, 2003. IN ADDITION, BORROWER WILL
PAY REGULAR MONTHLY PAYMENTS OF ALL ACCRUED UNPAID INTEREST DUE AS OF EACH
PAYMENT DATE, BEGINNING SEPTEMBER 6, 2003, WITH ALL SUBSEQUENT INTEREST PAYMENTS
TO BE DUE ON THE SAME DAY OF EACH MONTH AFTER THAT. PAYMENTS AND ANY OTHER
CREDITS SHALL BE ALLOCATED AMONG PRINCIPAL, INTEREST AND FEES AT THE DISCRETION
OF LENDER UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW. THE ANNUAL INTEREST RATE
FOR THIS NOTE IS COMPUTED ON A 365/360 BASIS; THAT IS, BY APPLYING THE RATIO OF
THE ANNUAL INTEREST RATE OVER A YEAR OF 360 DAYS, MULTIPLIED BY THE OUTSTANDING
PRINCIPAL BALANCE, MULTIPLIED BY THE ACTUAL NUMBER OF DAYS THE PRINCIPAL BALANCE
IS OUTSTANDING, UNLESS SUCH CALCULATION WOULD RESULT IN A USURIOUS RATE, IN
WHICH CASE INTEREST SHALL BE CALCULATED ON A PER DIEM BASIS OF A YEAR OF 365 OR
366 DAYS, AS THE CASE MAY BE. Borrower will pay Lender at Lender's address shown
on loan account statements sent to the Borrower, Lender's address shown in any
payment coupon book provided to the Borrower, or at such other place as Lender
may designate in writing.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an index which is the Prime Rate (the "Index").
"Prime Rate" shall mean the rate announced from time to time by Lender as its
prime rate (which rate may not be the lowest, best or most favorable rate of
interest which Lender may charge on loans to its customers). Each change in the
rate to be charged on this Note will become effective without notice on the same
day as the Index changes. THE INTEREST RATE TO BE APPLIED PRIOR TO MATURITY TO
THE UNPAID PRINCIPAL BALANCE OF THIS NOTE WILL BE AT A RATE EQUAL TO THE INDEX.
NOTICE: Under no circumstances will the interest rate on this Note be more than
the maximum rate allowed by applicable law. For purposes of this Note, the
"maximum rate allowed by applicable law" means the greater of (A) the maximum
rate of interest permitted under federal or other law applicable to the
indebtedness evidenced by this Note, or (B) the "Weekly Ceiling", as of the date
of this Note, as referred to in Chapter 303 of the Texas Finance Code.
PREPAYMENT. Borrower may pay without fee all or a portion of the principal
amount owed hereunder earlier than it is due. All prepayments shall be applied
to the Indebtedness in such order and manner as Lender may from time to time
determine in its sole discretion. Borrower agrees not to send Lender payments
marked "paid in full", "without recourse", or similar language. If Borrower
sends such a payment, Lender may accept it without losing any of Lender's rights
under this Note, and Borrower will remain obligated to pay any further amount
owed to Lender. All written communications concerning disputed amounts,
including any check or other payment instrument that indicates that the payment
constitutes "payment in full" of the amount owed or that is tendered with other
conditions
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PROMISSORY NOTE
(CONTINUED)
or limitations or as full satisfaction of a disputed amount must be mailed or
delivered to: Wealth Management Loan Servicing, X.X. Xxx 00000 Xxxxxxxxxx, XX
00000-0000.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged
5.000% OF THE REGULARLY SCHEDULED PAYMENT OR $25.00, WHICHEVER IS GREATER.
POST MATURITY RATE. Upon the occurrence of any Event of Default, or if this Note
is not paid at final maturity, Lender, at Lender's option, may add any unpaid
accrued interest to principal and such sum will bear interest therefrom until
paid, at the Post Maturity Rate provided in this Note. The Post Maturity Rate on
this Note is the lesser of the maximum rate allowed by applicable law or 3.000
percentage points over the variable interest rate. Borrower will pay interest on
all sums due after final maturity, whether by acceleration or otherwise, at that
rate. Borrower also will pay interest at the Post Maturity Rate on the principal
amount of each past due Installment from the due date until paid.
DEFAULT. Each of the following shall constitute an event of default ("Event of
Default") under this Note:
PAYMENT DEFAULT. Borrower fails to make any payment when due under this
Note.
OTHER DEFAULTS. Borrower fails to comply with or to pay or perform any
other term, obligation, covenant or condition contained in this Note or
in any of the Related Documents or to comply with or to pay or perform
any term, obligation, covenant or condition contained in any other
agreement between Lender and Borrower or between Borrower and any
affiliate of BANK ONE CORPORATION.
TRANSFER OF ASSETS. Borrower leases, sells, or otherwise conveys, or
agrees to lease, sell, or otherwise convey, a material part of its
assets or business outside of the ordinary course of business.
DEFAULTS WITH RESPECT TO THIRD PARTIES. Borrower fails to make any
payment when due or fails to comply with or to perform any term,
obligation, covenant or condition contained in any agreement between
any other person and Borrower.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this Note
or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes false
or misleading at any time thereafter.
JUDGMENTS OR DECREES. One or more judgments or decrees shall be entered
against the Borrower and such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal.
INSOLVENCY. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a
receiver for any part of Borrower's property, any assignment for the
benefit of creditors, any type of creditor workout, or the commencement
of any proceeding under any bankruptcy or insolvency laws by or against
Borrower.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure,
replevin, repossession, attachment, levy, execution, or forfeiture
proceedings, whether by judicial proceeding, self-help, or any other
method, by any creditor of Borrower, or by any governmental agency
against the Collateral or any other assets of Borrower. This includes a
garnishment of any of Borrower's accounts, including deposit accounts,
with Lender. However, this Event of Default shall not apply if there is
a good faith dispute by Borrower as to the validity or reasonableness
of the claim which is the basis of the creditor or forfeiture
proceeding and if Borrower gives Lender written notice of the creditor
or forfeiture proceeding and deposits with Lender monies or a surety
bond for the creditor or forfeiture proceeding, in an amount determined
by Lender, in its sole discretion, as being an adequate reserve or bond
for the dispute.
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PROMISSORY NOTE
(CONTINUED)
FAILURE TO COMPLY WITH LAWS. Borrower fails to comply with all
applicable statutes, laws, ordinances and governmental rules,
regulations and orders to which it is subject or which are applicable
to its business, property and assets.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent
(25%) or more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's
financial condition, or Lender believes the prospect of payment or
performance of this Note is impaired.
EVENTS AFFECTING GUARANTOR. Any of the preceding Events of Default
occurs with respect to any guarantor of the Indebtedness as if the word
"guarantor" were substituted for the word "Borrower" in such Event of
Default, or any guarantor dies or becomes incompetent, or revokes or
disputes the validity of, or liability under, any guaranty.
INSECURITY. Lender in good faith believes itself insecure.
LENDER'S RIGHTS. Upon the occurrence of any Event of Default, Lender may declare
the entire unpaid principal balance on this Note and the Indebtedness and all
accrued unpaid interest immediately due, without notice (except that in the case
of any Event of Default of the type described in the DEFAULT - Insolvency
section herein, such acceleration shall be automatic and not at Lender's
option), and then Borrower will pay that amount. Borrower shall be liable for
any deficiency remaining after disposition of any collateral which Lender may
choose to realize upon.
ATTORNEYS' FEES; EXPENSES. Lender may hire an attorney to help collect this Note
if Borrower does not pay, and Borrower will pay Lender's reasonable attorneys'
fees. Borrower also will pay Lender all other amounts Lender actually incurs as
court costs, lawful fees for filing, recording, releasing to any public office
any instrument securing this Note; the reasonable cost actually expended for
repossessing, storing, preparing for sale, and selling any security; and fees
for noting a lien on or transferring a certificate of title to any motor vehicle
offered as security for this Note, or premiums or identifiable charges received
in connection with the sale of authorized insurance.
GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF TEXAS. THIS NOTE HAS
BEEN ACCEPTED BY LENDER IN THE STATE OF TEXAS.
CHOICE OF VENUE. If there is a lawsuit, and if the transaction evidenced by this
Note occurred in Dallas County, Borrower agrees upon Lender's request to submit
to the jurisdiction of the courts of Dallas County, State of Texas.
DISHONORED CHECK CHARGE. Borrower will pay a processing fee of $25.00 if any
check given by Borrower to Lender as a payment on this loan is dishonored.
RIGHT OF SETOFF. Borrower grants to Lender a security interest in, as well as a
right of setoff against, and hereby assigns, conveys, delivers, pledges and
transfers to Lender, as security for repayment of the Indebtedness, all
Borrower's right, title and interest in and to all Borrower's accounts (whether
checking, savings, or some other account) with Lender or any subsidiary or
affiliate of BANK ONE CORPORATION (each hereinafter referred to as a "Lender
Affiliate") and all other obligations at any time owing by Lender or any Lender
Affiliate to Borrower. This includes all accounts Borrower holds jointly with
someone else and all accounts Borrower may open in the future. However, this
does not include any XXX or Xxxxx accounts, or any trust accounts for which the
grant of a security interest would be prohibited by law. Borrower authorizes
Lender, without prior notice to Borrower and irrespective of (i) whether or not
Lender has made any demand under this Note or the Related Documents or (ii)
whether such Indebtedness is contingent, matured or unmatured, to the extent
permitted by law, to collect, charge and/or setoff all sums owing on the
Indebtedness against any and all such accounts and other obligations, and, at
Lender's option, to administratively freeze or direct a Lender Affiliate to
administratively freeze all such accounts and other obligations to allow Lender
to protect Lender's security interest, collection, charge and setoff rights
provided in this paragraph.
PAGE 4
PROMISSORY NOTE
(CONTINUED)
COLLATERAL. Borrower acknowledges this Note is secured by security interest in
and lien upon all collateral described in any Related Document.
LINE OF CREDIT. This Note evidences a revolving line of credit. The unpaid
principal balance of this Note shall increase and decrease with each new advance
and payment hereunder, as the case may be. Subject to the terms hereof, Borrower
may borrow, repay and reborrow hereunder. Advances under this Note, as well as
directions for payment from Borrower's accounts, may be requested orally or in
writing by Borrower or by an authorized person. Lender may, but need not,
require that all oral requests be confirmed in writing. Borrower agrees to be
liable for all sums either: (A) advanced in accordance with the instructions of
an authorized person or (B) credited to any of Borrower's accounts with Lender.
Lender will have no obligation to advance funds under this Note if: (A) Borrower
or any guarantor is in default under the terms of this Note or any agreement
that Borrower or any guarantor has with Lender, including any agreement made in
connection with the signing of this Note; (B) Borrower or any guarantor ceases
doing business or is insolvent; (C) any guarantor seeks, claims or otherwise
attempts to limit, modify or revoke such guarantor's guarantee of this Note or
any other loan with Lender; (D) Borrower has applied funds provided pursuant to
this Note for purposes other than those authorized by Lender; or (E) Lender in
good faith believes itself insecure. THIS REVOLVING LINE OF CREDIT SHALL NOT BE
SUBJECT TO SEC. 346 OF THE TEXAS FINANCE CODE.
LATE CHARGES. In the "Late Charge" provision set forth above, the following
language is hereby added after the word "greater": "up to the maximum amount of
Two Hundred Fifty Dollars ($250.00) per late charge".
FINANCIAL STATEMENTS. Borrower shall furnish Lender with such financial
statements and other related information at such frequencies and in such detail
as Lender may reasonably request.
ENFORCEABILITY AND ORGANIZATION. Borrower is duly authorized to transact
business in all states in which Borrower is doing business, having obtained all
necessary filings, governmental licenses and approvals for each state in which
Borrower is doing business. Borrower's execution, delivery and performance of
this Note and all the Related Documents have been duly authorized by all
necessary action by Borrower. This Note and all the Related Documents constitute
legal, valid and binding obligations of Borrower enforceable against Borrower in
accordance with their respective terms. If applicable, Borrower is an entity
which is, and at all times shall be, duly organized, validly existing, and in
good standing under and by virtue of the laws of the state of its organization.
INFORMATION WAIVER. Lender may provide, without any limitation whatsoever, to
any one or more purchasers, potential purchasers, or affiliates of BANK ONE
CORPORATION, any information or knowledge Lender may have about the undersigned
or about any matter relating to this document and the Related Documents, and the
undersigned hereby waives any right to privacy the undersigned may have with
respect to such matters.
INDEBTEDNESS. The word "Indebtedness" means all principal, interest, and other
amounts, costs and expenses payable under the Note or Related Documents,
together with all renewals of, extensions of, modifications of, consolidations
of and substitutions for the Note or Related Documents, together with interest
on such amounts as provided in this Note, and all obligations, debts and
liabilities, plus interest thereon, of Borrower or any one or more of them to
Lender, as well as all claims by Lender against Borrower or any one or more of
them, whether now existing or hereafter arising, whether related or unrelated to
the purpose of this Note, whether voluntary or otherwise, whether due or not
due, direct or indirect, absolute or contingent, liquidated or unliquidated and
whether Borrower may be liable individually or jointly with others, whether
obligated as guarantor, surety, accommodation party or otherwise and whether
recovery upon such amounts may be or hereafter become barred by any statute of
limitations, and whether the obligation to repay such amounts may be or
hereafter become otherwise unenforceable; and further includes, without
limitation, all principal, interest, end other amounts, costs and expenses
payable under the Related Documents, whether executed by the Borrower or by any
other person or entity, together with all renewals of, extensions of,
modifications of, consolidations of and substitutions for the Related Documents,
together with interest thereon as provided in the Related Documents.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds,
PAGE 5
PROMISSORY NOTE
(CONTINUED)
collateral mortgages, and all other instruments, agreements and documents,
whether now existing or hereafter arising, executed in connection with the
Indebtedness.
LIABILITIES FOR OBLIGATIONS UNDER RELATED DOCUMENTS. Borrower also promises to
pay to Lender all of the Indebtedness. Borrower acknowledges that some of the
Related Documents, pursuant to which Indebtedness may arise, may be executed
only by persons or entities other than the Borrower.
PURPOSE. Borrower agrees that no advances under this Note shall be used for
personal, family or household purposes and that all advances hereunder shall be
used solely for business, commercial, agricultural or other similar purposes.
ARBITRATION. Undersigned and Lender agree that all disputes, claims and
controversies between them whether individual, joint, or class in nature,
arising from this document or otherwise, including without limitation contract
and tort disputes, shall be arbitrated pursuant to the Rules of the American
Arbitration Association in effect at the time the claim is filed, upon request
of either party. No act to take or dispose of any Collateral or Property (as
defined herein or in any Related Document) securing this document shall
constitute a waiver of this arbitration agreement or be prohibited by this
arbitration agreement. This includes, without limitation, obtaining injunctive
relief or a temporary restraining order; invoking a power of sale under any deed
of trust or mortgage; obtaining a writ of attachment or imposition of a
receiver; or exercising any rights relating to personal property, including
taking or disposing of such property with or without judicial process pursuant
to applicable law. Any disputes, claims, or controversies concerning the
lawfulness or reasonableness of any act, or exercise of any right, concerning
any Collateral or Property securing this document, including any claim to
rescind, reform, or otherwise modify any agreement relating to the Collateral or
Property securing this document, shall also be arbitrated, provided however that
no arbitrator shall have the right or the power to enjoin or restrain any act of
any party. Judgment upon any award rendered by any arbitrator may be entered in
any court having jurisdiction. Nothing in this document shall preclude any party
from seeking equitable relief from a court of competent jurisdiction. The
statute of limitations, estoppel, waiver, laches, and similar doctrines which
would otherwise be applicable in an action brought by a party shall be
applicable in any arbitration proceeding, and the commencement of an arbitration
proceeding shall be deemed the commencement of an action for these purposes. The
Federal Arbitration Act shall apply to the construction, interpretation, and
enforcement of this arbitration provision.
JURY WAIVER. THE UNDERSIGNED AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT
OR OTHERWISE) BETWEEN OR AMONG THE UNDERSIGNED AND LENDER ARISING OUT OF OR IN
ANY WAY RELATED TO THIS DOCUMENT, THE RELATED DOCUMENTS, OR ANY RELATIONSHIP
BETWEEN OR AMONG THE UNDERSIGNED AND LENDER. THIS PROVISION IS A MATERIAL
INDUCEMENT TO LENDER TO PROVIDE THE FINANCING EVIDENCED BY THIS DOCUMENT AND THE
RELATED DOCUMENTS.
BORROWER'S ACKNOWLEDGEMENT AND AGREEMENT REGARDING AFFILIATE BANKS. Borrower may
now or in the future have a borrowing relationship with Bank One, NA with its
main office in Columbus, Ohio (the "Bank Affiliate"). Lender and Borrower intend
that the terms, covenants, conditions, warranties and obligations of Borrower in
only one agreement in the nature of a loan or credit agreement ("Loan
Agreement") be applicable to the borrowing relationship of Borrower and Lender
and of Borrower and the Bank Affiliate. Therefore, if Borrower executes a Loan
Agreement with the Bank Affiliate, the Borrower agrees that the terms,
covenants, conditions, warranties and obligations of Borrower contained in that
Loan Agreement between Borrower and the Bank Affiliate shall also apply to this
Note.
GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact will
not affect the rest of the Note. Borrower does not agree or intend to pay, and
Lender does not agree or intend to contract for, charge, collect, take, reserve
or receive (collectively referred to herein as "charge or collect"), any amount
in the nature of interest or in the nature of a fee for this loan, which would
in any way or event (including demand, prepayment, or acceleration) cause Lender
to charge or collect more for this loan than the maximum Lender would be
permitted to charge or collect by
PAGE 6
PROMISSORY NOTE
(CONTINUED)
federal law or the law of the State of Texas (as applicable). Any such excess
interest or unauthorized fee shall, instead of anything stated to the contrary,
be applied first to reduce the principal balance of this loan, and when the
principal has been paid in full, be refunded to Borrower. The right to
accelerate maturity of sums due under this Note does not include the right to
accelerate any interest which has not otherwise accrued on the date of such
acceleration, and Lender does not intend to charge or collect any unearned
interest in the event of acceleration. All sums paid or agreed to be paid to
Lender for the use, forbearance or detention of sums due hereunder shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full term of the loan evidenced by this Note until payment in
full so that the rate or amount of interest on account of the loan evidenced
hereby does not exceed the applicable usury ceiling. If any part of this Note
cannot be enforced, this fact will not affect the rest of this Note. It is
agreed that any payment which would otherwise for any reason be deemed unlawful
interest under applicable law shall be deemed to have been applied to the unpaid
principal balance of this Note, or to other Indebtedness. The unpaid balance
owing on this Note at any time may be evidenced by endorsements on this Note or
by Lender's internal records, including daily computer print-outs. Lender may
delay or forgo enforcing any of its rights or remedies under this Note without
losing them. Borrower and any other person who signs, guarantees or endorses
this Note, to the extent allowed by law, waive presentment, demand for payment,
notice of dishonor, notice of intent to accelerate the maturity of this Note,
and notice of acceleration of the maturity of this Note. Upon any change in the
terms of this Note, and unless otherwise expressly stated in writing, no party
who signs this Note, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. Unless specifically permitted
otherwise by the terms and conditions of this Note, no alteration of or
amendment to this Note shall be effective unless given in writing and signed by
the party or parties sought to be charged or bound by the alteration or
amendment. Borrower agrees and consents to Lender's sale or transfer, whether
now or later, of this Note, or the Related Documents or of any participation
interest in this Note or Related Documents to one or more purchasers, whether
related or unrelated to Lender. Borrower waives any and all notices of sale of
this Note, the Related Documents or of any participation interests, as well as
any notices of any repurchases of this Note, the Related Documents, or of any
participation interests. The obligations under this Note are joint and several.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO
THE TERMS OF THE NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
BORROWER:
GENITOPE CORPORATION
By: /s/ Xxx X. Xxxxxx Xx.
--------------------------
(BANK ONE LOGO)
CONTROL AGREEMENT
BORROWER: GENITOPE CORPORATION LENDER: Bank One, N.A., with its main
8201 XXXXXXX, XX 21 office at Chicago, Illinois
XXXXXX, XX 00000 Dallas Private Client Services LPO
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
GRANTOR: XXXXXXXX X. XXXXXX, XX.
8201 XXXXXXX, XX 21
XXXXXX,XX 00000
THIS CONTROL AGREEMENT IS ATTACHED TO AND BY THIS REFERENCE IS MADE A PART OF
THE COMMERCIAL PLEDGE AGREEMENT, DATED JULY 28, 2003, AND EXECUTED IN CONNECTION
WITH A LOAN OR OTHER FINANCIAL ACCOMMODATIONS BETWEEN BANK ONE, N.A., WITH ITS
MAIN OFFICE AT CHICAGO, ILLINOIS AND GENITOPE CORPORATION.
The financial institution identified in the heading on this Agreement as Lender
("Lender"), the person or entity identified in the heading on this Agreement as
Grantor ("Grantor") and Banc One Securities Corporation ("Company") hereby agree
as follows:
1. ACCOUNT. Company has established securities account number 00X000000 in
the name of Xxxxxxxx X. Xxxxxx, Xx. (the "Account"). Company acknowledges that
attached hereto as Exhibit A is a statement of the Account produced by the
Company in the ordinary course of its business regarding the property credited
to the Account as of the date of such statement. Company does not know of any
inaccuracy in the statement. Grantor has granted Lender a security interest in
the Account pursuant to a pledge/and or security agreement (the "Pledge"). The
parties are entering into this control agreement (this "Agreement") to perfect
Lender's security interest in the Account. Company represents that no property
in the Account is registered in the name of Grantor, payable to Grantor's order
or specially endorsed to Grantor which has not been endorsed to Company or in
blank. Company shall treat all property in the Account as "financial assets"
under Article 8 of the Uniform Commercial Code of the State of Ohio as in effect
from time to time ("UCC").
2. CONTROL. Company and Grantor agree the Account is subject to a security
interest in favor of Lender and Lender shall have control over the Account in
accordance with provisions of the UCC. In regard to the Account, from and after
the date of this Agreement, Company shall act only upon Lender's written
instructions or entitlement orders, without further consent of Grantor. Grantor
hereby expressly authorizes Company to act in accordance with such instructions
or entitlement orders without Grantor's consent or concurrence. Further, Grantor
agrees not to assert a claim or demand against Company for complying with
instructions, entitlement orders or notices received from Lender.
3. PRIORITY OF LIEN/SUBORDINATION. Company has not entered into a control
agreement with respect to the Account with any other party and agrees that
Company will not do so while this Agreement is in effect. Company does not know
of any claim to or interest in the Account, except for claims and interests of
the parties referred to in this Agreement. Company further represents that the
Account is a cash account and that it will not advance margin or other credit to
Grantor, except for credit related to the settlement of transactions in the
ordinary course of business. Company subordinates in favor of Lender any
security interest, lien or right of setoff it may have, now or in the future,
against the Account or property in the Account, although Company may retain a
prior lien against the property in the Account to secure payment for property
purchased for the Account and normal commissions and fees for the Account.
PAGE 2
CONTROL AGREEMENT
(CONTINUED)
4. NO TRADING OR WITHDRAWAL OF PRINCIPAL; PAYMENT OF INTEREST AND
DIVIDENDS PERMITTED. Notwithstanding section 2 above, until a "Notice of Sole
Control" is given by Lender to Company, Grantor may receive income, interest,
dividends and capital gains distributions from the Account; no other withdrawals
of property shall be permitted. After Lender gives a Notice of Sole Control to
Company (a form of which is attached as Exhibit B), Company shall cease making
any payments to Grantor from the Account or complying with any instructions or
entitlement orders from Grantor and shall act only upon the instructions of
Lender. Until such time as Lender gives a Notice of Sole Control, Grantor may
direct Company to exercise any voting rights with respect to the Account.
5. FEES AND REPORTING. All charges and expenses incident to the Account
remain in full force and effect and shall continue to be the obligation of
Grantor alone. Grantor expressly agrees that all income, earnings and profits
with respect to the Account shall be reported for State and Federal income tax
purposes as attributable to the Grantor and not the Lender. Grantor authorizes
Company, Lender, and any other person authorized to report income distributions
to report all earnings and profits from the Account to any appropriate taxing
authority under Grantor's Social Security or Taxpayer Identification Number.
Grantor authorizes Company, upon Lender's direction, to send copies of all
statements and confirmations for the Account to Lender, and Company agrees to
comply with such direction.
6. LIMITATION OF LIABILITY. Company undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement it being
expressly understood that there are no implied duties under this Agreement. In
no event shall Company be liable, directly or indirectly, for any (i) damages or
expenses arising out of services provided under this Agreement, other than
damages which result from Company's gross negligence or willful misconduct, or
(ii) indirect, special or consequential damages, even if Company has been
advised of the possibility of such damages.
7. INDEMNIFICATION. Grantor agrees to indemnify Company, its officers and
employees, and hold it and them harmless for and from all claims, losses,
liabilities and expenses, including without limitation, reasonable legal fees
and expenses arising from any claim of any party resulting from actions Company
takes in accordance with the provisions of this Agreement.
8. ACCOUNT AGREEMENT. This Agreement supplements the account agreement
between Company and Grantor. If there is a conflict between this Agreement and
any other agreement between Grantor and the Company, this Agreement shall
control; provided, however, that the terms of this Agreement shall not be deemed
or construed to make the Lender a party to such account agreement.
9. NOTICE. Any notices and demands under or related to this Agreement
shall be in writing and delivered to the intended party at its address or
facsimile number stated below, and if to Lender, at its main office if no other
address of Lender is specified herein, by one of the following means: (a) by
hand, (b) by a nationally recognized overnight courier service, (c) by certified
mail, postage prepaid, with return receipt requested, or (d) by facsimile
transmission. Notice shall be deemed given: (a) upon receipt if delivered by
hand, (b) on the Delivery Day after the day of deposit with a nationally
recognized courier service, (c) on the third Delivery Day after the notice is
deposited in the mail, or (d) when transmitted to the facsimile number specified
below and a confirmation receipt is received by the sender. "Delivery Day" means
a day other than a Saturday, a Sunday, or any other day on which national
banking associations are authorized to be closed. Any party may change its
address for purposes of the receipt of notices and demands by giving notice of
such change in the manner provided in this provision.
If to Lender:
Wealth Management Loan Servicing
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000-0000
If to Grantor: To the address identified in the heading on this Agreement
PAGE 3
CONTROL AGREEMENT
(CONTINUED)
If to Company:
Banc One Securities Corporation
Manager, Margin Department
000 X. Xxxxxxxxx
Xxxx Xxxxx XX0-0000
Xxxxxxx, XX 00000-0000
Phone: 000-000-0000
Fax: 000-000-0000
10. MISCELLANEOUS. The provisions of this Agreement shall remain in effect
until the Lender gives the Company written notice to the contrary. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one and the
same instrument. This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective legal representatives and
corporate successors and assigns. If any provision of this Agreement is
determined to be illegal or unenforceable, such provision shall be deemed
severable from the balance of the provisions of this Agreement and the remaining
provisions shall be enforceable in accordance with their terms.
LENDER:
____________________________________
By: /s/ Xxxxx X. Xxxxxx
_________________________________
Name: Xxxxx X. Xxxxxx
_______________________________
Title: Vice President
______________________________
COMPANY:
____________________________________
By:_________________________________
Name:_______________________________
Title:______________________________
THIS CONTROL AGREEMENT IS EXECUTED ON JULY 28, 2003.
GRANTOR:
X /s/ Xxxxxxxx X. Xxxxxx, Xx.
____________________________________________________
XXXXXXXX X. XXXXXX, XX., INDIVIDUALLY
BORROWER:
GENITOPE CORPORATION
By: /s/ Xxx X. Xxxxxx, Xx.
__________________________________________________
(BANK ONE LOGO)
COMMERCIAL PLEDGE AGREEMENT
BORROWER: GENITOPE CORPORATION Lender: Bank One, N.A., with its main
8201 XXXXXXX, XX 21 office at Chicago, Illinois
XXXXXX, XX 00000 Dallas Private Client Services LPO
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
GRANTOR: XXXXXXXX X. XXXXXX, XX.
8201 XXXXXXX, XX 21
XXXXXX, XX 00000
THIS COMMERCIAL PLEDGE AGREEMENT DATED JULY 28, 2003, IS MADE AND EXECUTED AMONG
XXXXXXXX X. XXXXXX, XX. ("GRANTOR"); GENITOPE CORPORATION ("BORROWER"); AND BANK
ONE, N.A., WITH ITS MAIN OFFICE AT CHICAGO, ILLINOIS ("LENDER").
GRANT OF SECURITY INTEREST. FOR VALUABLE CONSIDERATION, GRANTOR TRANSFERS,
PLEDGES AND GRANTS TO LENDER A SECURITY INTEREST IN THE COLLATERAL TO SECURE THE
INDEBTEDNESS AND AGREES THAT LENDER SHALL HAVE THE RIGHTS STATED IN THIS
AGREEMENT WITH RESPECT TO THE COLLATERAL, IN ADDITION TO ALL OTHER RIGHTS WHICH
LENDER MAY HAVE BY LAW.
COLLATERAL DESCRIPTION. The word "Collateral" as used in this Agreement means
all of Grantor's property (however owned if more than one), in the possession of
Lender (or in the possession of a third party subject to the control of Lender
or otherwise assigned hereby), whether existing now or later and whether
tangible or intangible in character, including without limitation each and all
of the following:
BANC ONE SECURITIES CORPORATION ACCOUNT NUMBER 00X000000, IN THE NAME
OF XXXXXXXX X. XXXXXX, XX., TOGETHER WITH ALL: (I) SECURITIES,
COMMODITY CONTRACTS, FINANCIAL ASSETS, OTHER INVESTMENT PROPERTY AND
CASH THEREIN, OR ASSOCIATED THEREWITH, WHETHER PRESENTLY OR IN THE
FUTURE; (II) ACCOUNTS AND GENERAL INTANGIBLES PERTAINING THERETO,
FORMING A PART THEREOF, ARISING THEREUNDER OR ASSOCIATED THEREWITH; AND
(III) ALL PROCEEDS AND PRODUCTS THEREOF, ACCESSIONS THERETO AND
SUBSTITUTIONS THEREFOR.
In addition, the word "Collateral" includes all of Grantor's property (however
owned), in the possession of Lender (or in the possession of a third party
subject to the control of Lender or otherwise assigned hereby), whether now or
hereafter existing and whether tangible or intangible in character, including
without limitation each of the following:
(A) ALL PROPERTY TO WHICH LENDER ACQUIRES TITLE OR DOCUMENTS OF TITLE.
(B) ALL PROPERTY ASSIGNED TO LENDER.
(C) ALL PROMISSORY NOTES, BILLS OF EXCHANGE, STOCK CERTIFICATES, BONDS,
SAVINGS PASSBOOKS, TIME CERTIFICATES OF DEPOSIT, INSURANCE POLICIES,
AND ALL OTHER INSTRUMENTS AND EVIDENCES OF AN OBLIGATION.
(D) ALL RECORDS RELATING TO ANY OF THE PROPERTY DESCRIBED IN THIS
COLLATERAL SECTION, WHETHER IN THE FORM OF A WRITING, MICROFILM,
MICROFICHE, OF ELECTRONIC MEDIA.
(E) ALL INCOME AND PROCEEDS FROM THE COLLATERAL AS DEFINED HEREIN.
CROSS-COLLATERALIZATION. In addition to the Note, this Agreement secures all
obligations, debts and liabilities, plus interest thereon, of either Grantor or
Borrower, or any one or more of them, to Lender, as well as all claims by Lender
against Borrower or any one or more of them, whether now existing or hereafter
arising, whether related or unrelated to the purpose of the Note, whether
voluntary or otherwise, whether due or not due, direct or indirect, absolute or
contingent, liquidated or unliquidated and whether Borrower may be liable
individually or
PAGE 2
COMMERCIAL PLEDGE AGREEMENT
(CONTINUED)
jointly with others, whether obligated as guarantor, surety, accommodation party
or otherwise. However, this Agreement shall not secure, and the "Indebtedness"
shall not include, any obligations arising under Chapters 3 and 4 of Title 79,
Revised Civil Statutes of Texas, 1925, as amended.
BORROWER'S WAIVERS AND RESPONSIBILITIES. Except as otherwise required under this
Agreement or by applicable law, (A) Borrower agrees that Lender need not tell
Borrower about any action or inaction Lender takes in connection with this
Agreement; (B) Borrower assumes the responsibility for being and keeping
informed about the Collateral; and (C) Borrower waives any defenses that may
arise because of any action or inaction of Lender, including without limitation
any failure of Lender to realize upon the Collateral or any delay by Lender in
realizing upon the Collateral; and Borrower agrees to remain liable under the
Note no matter what action Lender takes or fails to take under this Agreement.
GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (A) this
Agreement is executed at Borrower's request and not at the request of Lender;
(B) Grantor has the full right, power and authority to enter into this Agreement
and to pledge the Collateral to Lender; (C) Grantor has established adequate
means of obtaining from Borrower on a continuing basis information about
Borrower's financial condition; and (D) Lender has made no representation to
Grantor about Borrower or Borrower's creditworthiness.
GRANTOR'S WAIVERS. Grantor waives all requirements of presentment, protest,
demand, and notice of dishonor or non-payment to Borrower or Grantor, or any
other party to the Indebtedness or the Collateral. Lender may do any of the
following with respect to any obligation of any Borrower, without first
obtaining the consent of Grantor: (A) grant any extension of time for any
payment, (B) grant any renewal, (C) permit any modification of payment terms or
other terms, or (D) exchange or release any Collateral or other security. No
such act or failure to act shall affect Lender's rights against Grantor or the
Collateral.
RIGHT OF SETOFF. Grantor grants to Lender a security interest in, as well as a
right of setoff against, and hereby assigns, conveys, delivers, pledges and
transfers to Lender, as security for repayment of all sums owed by the Grantor
under this Agreement, all Grantor's right, title and interest in and to all
Grantor's accounts (whether checking, savings, or some other account) with
Lender or any subsidiary or affiliate of BANK ONE CORPORATION xxxxx hereinafter
referred to as a "Lender Affiliate") and all other obligations at any time owing
by Lender or any Lender Affiliate. This Includes all accounts Grantor holds
jointly with someone else and all accounts Grantor may open in the future.
However, this does not include any XXX or Xxxxx accounts, or any trust accounts
for which the grant of a security interest would be prohibited by law. Grantor
authorizes Lender, without prior notice to Grantor and irrespective of (i)
whether or not Lender has made any demand under this Agreement or the Related
Documents or (ii) whether the Indebtedness is contingent, matured or unmatured,
to the extent permitted by low, to collect, charge and/or setoff all sums owed
by Grantor under this Agreement against any and all such accounts and other
obligations, and, at Lender's option, to administratively freeze or direct a
Lender Affiliate to administratively freeze all such accounts and other
obligations to allow Lender to protect Lender's security interest, collection,
charge and setoff rights provided in this paragraph.
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL. Grantor
represents and warrants to Lender that:
OWNERSHIP. Grantor is the lawful owner of the Collateral free and clear
of all security interests, liens, encumbrances, registered pledges,
adverse claims, and any other claims of others except as disclosed to
and accepted by Lender in writing prior to execution of this Agreement.
AUTHORITY; BINDING EFFECT. Grantor has the full right, power and
authority to enter into this Agreement and to grant a security interest
in the Collateral to Lender. This Agreement is binding upon Grantor as
well as Grantor's successors and assigns, and is legally enforceable in
accordance with its terms. The foregoing representations and
warranties, and all other representations and warranties contained in
this Agreement are and shall be continuing in nature and shall remain
in full force and effect until such time as this Agreement is
terminated or cancelled as provided herein.
PAGE 3
COMMERCIAL PLEDGE AGREEMENT
(CONTINUED)
NO FURTHER ASSIGNMENT. Grantor has not, and shall not, sell, assign,
transfer, encumber or otherwise dispose of any of Grantor's rights in
the Collateral except as provided in this Agreement.
NO DEFAULTS. There are no defaults existing under the Collateral, and
there are no offsets or counterclaims to the same. Grantor will
strictly and promptly perform each of the terms, conditions, covenants
and agreements, if any, contained in the Collateral which are to be
performed by Grantor.
NO VIOLATION. The execution and delivery of this Agreement will not
violate any law or agreement governing Grantor or to which Grantor is a
party.
LENDER'S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE COLLATERAL. Lender may hold
the Collateral until all Indebtedness has been paid and satisfied. Thereafter
Lender may deliver the Collateral to Grantor or to any other owner of the
Collateral. Lender shall have the following rights in addition to all other
rights Lender may have by law:
MAINTENANCE AND PROTECTION OF COLLATERAL. Lender may, but shall not be
obligated to, take such steps as it deems necessary or desirable to
protect, maintain, insure, control, receive, or manage the Collateral,
including paying of any liens or claims against the Collateral. This
may include such things as hiring other people, such as attorneys,
appraisers or other experts. Lender may charge Grantor for any cost
incurred in so doing. When applicable law provides more than one method
of perfection of Lender's security interest, Lender may choose the
method(s) to be used.
INCOME AND PROCEEDS FROM THE COLLATERAL. Lender may receive all Income
and Proceeds and add it to the Collateral. Grantor agrees to deliver to
Lender immediately upon receipt, in the exact form received and without
commingling with other property, all Income and Proceeds from the
Collateral which may be received by, paid, or delivered to Grantor or
for Grantor's account, whether as an addition to, in discharge of, in
substitution of, or in exchange for any of the Collateral.
APPLICATION OF CASH. At Lender's option, Lender may apply any cash,
whether included in the Collateral or received as Income and Proceeds
or through liquidation, sale, retirement, split up, dividend,
distribution, or other disposition of the Collateral, to the
satisfaction of the Indebtedness or such portion thereof as Lender
shall choose, whether or not matured.
TRANSACTIONS WITH OTHERS. Lender may (1) extend time for payment or
other performance, (2) grant a renewal or change in terms or
conditions, (3) compromise, compound or release any obligation, (4)
release, compromise, renew, extend, exchange, substitute or acquire any
new security interest in the Collateral or any other property of any
nature securing repayment of the Indebtedness, or (5) waive or fail to
exercise any right, power or remedy granted in this Agreement or any
Related Document, with any one or more Obligors, endorsers, or
Guarantors of the Indebtedness as Lender deems advisable, without
obtaining the prior written consent of Grantor, and no such act or
failure to act shall affect Lender's rights against Grantor or the
Collateral.
ALL COLLATERAL SECURES INDEBTEDNESS. All Collateral shall be security
for the Indebtedness, whether the Collateral is located at one or more
offices or branches of Lender. This will be the case whether or not the
office or branch where Grantor obtained Grantor's loan knows about the
Collateral or relies upon the Collateral as security.
COLLECTION OF COLLATERAL. Lender at Lender's option may, but need not,
collect the Income and Proceeds directly from the Obligors. Grantor
authorizes and directs the Obligors, if Lender decides to collect the
Income, to pay and deliver to Lender all Income from the Collateral and
to accept Lender's receipt for the payments provided however, until the
occurrence of any Event of Default or notice by Lender, Grantor shall
be entitled to all cash dividends and all interest paid in the
Collateral free of the pledge and security interest provided for in
this Agreement.
PAGE 4
COMMERCIAL PLEDGE AGREEMENT
(CONTINUED)
POWER OF ATTORNEY. Grantor irrevocably appoints Lender as Grantor's
attorney-in-fact, with full power of substitution, (a) to demand,
collect, receive, receipt for, xxx and recover all Income and Proceeds
and other sums of money and other property which may now or hereafter
become due, owing or payable from the Obligors in accordance with the
terms of the Collateral; (b) to execute, sign and endorse any and all
instruments, receipts, checks, drafts and warrants issued in payment
for the Collateral; (c) to settle or compromise any and all claims
arising under the Collateral, and in the place and stead of Grantor,
execute and deliver Grantor's release and acquittance for Grantor; (d)
to file any claim or claims or to take any action or institute or take
part in any proceedings, either in Lender's own name or in the name of
Grantor, or otherwise, which in the discretion of Lender may seem to be
necessary or advisable; and (e) to execute in Grantor's name and to
deliver to the Obligors on Grantor's behalf, at the time and in the
manner specified by the Collateral, any necessary instruments or
documents.
PERFECTION OF SECURITY INTEREST. Upon Lender's request, Grantor will
deliver to Lender any and all of the documents evidencing or
constituting the Collateral. When applicable law provides more than one
method of perfection of Lender's security interest, Lender may choose
the method(s) to be used. Upon Lender's request, Grantor will sign and
deliver any writings necessary to perfect Lender's security interest.
Grantor hereby appoints Lender as Grantor's irrevocable
attorney-in-fact for the purpose of executing any documents necessary
to perfect, amend, or to continue the security interest granted in this
Agreement or to demand termination of filings of other secured parties.
THIS IS A CONTINUING SECURITY AGREEMENT AND WILL CONTINUE IN EFFECT
EVEN THOUGH ALL OR ANY PART OF THE INDEBTEDNESS IS PAID IN FULL AND
EVEN THOUGH FOR A PERIOD OF TIME BORROWER MAY NOT BE INDEBTED TO
LENDER.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Grantor fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Grantor's failure to discharge or pay when due any amounts
Grantor is required to discharge or pay under this Agreement or any Related
Documents, Lender on Grantor's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on the Collateral and paying all
costs for insuring, maintaining and preserving the Collateral All such
expenditures paid by Lender for such purposes will then bear interest at the
Note rate from the date paid by Lender to the date of repayment by Grantor. To
the extent permitted by applicable law, all such expenses will become a part of
the Indebtedness and, at Lender's option, will (A) be payable on demand, (B) be
added to the balance of the Note and be apportioned among and be payable with
any installment payments to become due during either (1) the term of any
applicable insurance policy, (2) the remaining term of the Note, or (3) be
treated as a balloon payment which will be due and payable at the Note's
maturity. The Collateral also will secure payment of these amounts. Such right
shall be in addition to all other rights and remedies to which Lender may be
entitled upon Default.
LIMITATIONS ON OBLIGATIONS OF LENDER. Lender shall use ordinary reasonable care
in the physical preservation and custody of the Collateral in Lender's
possession, but shall have no other obligation to protect the Collateral or its
value. In particular, but without limitation, Lender shall have no
responsibility for (A) any depreciation in value of the Collateral or for the
collection or protection of any Income and Proceeds from the Collateral, (B)
preservation of rights against parties to the Collateral or against third
persons, (C) ascertaining any maturities, calls, conversions, exchanges, offers,
tenders, or similar matters relating to any of the Collateral, or (D) informing
Grantor about any of the above, whether or not Lender has or is deemed to have
knowledge of such matters. Lender shall have no liability for depreciation or
deterioration of the Collateral.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
PAYMENT DEFAULT. Borrower fails to make any payment when due under the
Indebtedness.
OTHER DEFAULTS. Borrower or Grantor falls to comply with or to pay or
perform any other term, obligation, covenant or condition contained in
this Agreement or in any of the Related Documents or to comply with or
to pay or perform any term, obligation, covenant or condition contained
in any other agreement between
PAGE 5
COMMERCIAL PLEDGE AGREEMENT
(CONTINUED)
Lender and Borrower or Grantor or between any affiliate of BANK ONE
CORPORATION and Borrower or Grantor.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or Grantor or on Borrower's or
Grantor's behalf under this Agreement, the Note, or the Related
Documents is false or misleading in any material respect, either now or
at the time made or furnished or becomes false or misleading at any
time thereafter.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related
Documents ceases to be in full force and effect (including failure of
any collateral document to create a valid and perfected security
interest or lien) at any time and for any reason.
DEATH OR INSOLVENCY. The death of Borrower or Grantor or the
dissolution or termination of Borrower's or Grantor's existence as a
going business, the insolvency of Borrower or Grantor, the appointment
of a receiver for any part of Borrower's or Grantor's property, any
assignment for the benefit of creditors, any type of creditor workout,
or the commencement of any proceeding under any bankruptcy or
insolvency laws by or against Borrower or Grantor.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure,
replevin, repossession, attachment, levy, execution, or forfeiture
proceedings, whether by judicial proceeding, self-help, or any other
method, by any creditor of Borrower or Grantor, or by any governmental
agency against the Collateral or any other assets of Borrower or
Grantor. This includes a garnishment of any of Borrower's or Grantor's
accounts, including deposit accounts, with Lender. However, this Event
of Default shall not apply if there is a good faith dispute by Borrower
or Grantor as to the validity or reasonableness of the claim which is
the basis of the creditor or forfeiture proceeding and if Borrower or
Grantor gives Lender written notice of the creditor or forfeiture
proceeding and deposits with Lender monies or a surety bond for the
creditor or forfeiture proceeding, in an amount determined by Lender,
in its sole discretion, as being an adequate reserve or bond for the
dispute.
ADVERSE CHANGE. A material adverse change occurs in Borrower's or
Grantor's financial condition, or Lender believes the prospect of
payment or performance of the Indebtedness is impaired.
EVENTS AFFECTING GUARANTOR. Any of the preceding Events of Default
occurs with respect to any guarantor of the Indebtedness as if the word
"guarantor" were substituted for the word "Borrower" in such Event of
Default, or any guarantor dies or becomes incompetent, or revokes or
disputes the validity of, or liability under, any guaranty of the
Indebtedness.
INSECURITY. Lender in good faith believes itself insecure.
FAILURE TO REGISTER. Failure of the issuer, transfer agent, mutual fund
company, or broker, as the case may be, to furnish a written statement
to Lender recording Lender's security interest to the security, or the
identification of any adverse claim that may interfere with Lender's
security interest in the Collateral.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this
Agreement, at any time thereafter, Lender may exercise any one or more of the
following rights and remedies:
ACCELERATE INDEBTEDNESS. Declare all Indebtedness immediately due and
payable, without notice of any kind to Borrower or Grantor (except that
in the case of any Event of Default of the type described in the
DEFAULT - Insolvency section herein, such acceleration shall be
automatic and not at Lender's option).
COLLECT THE COLLATERAL. Collect any of the Collateral and, at Lender's
option and to the extent permitted by applicable law, retain possession
of the Collateral while suing on the Indebtedness.
PAGE 6
COMMERCIAL PLEDGE AGREEMENT
(CONTINUED)
SELL THE COLLATERAL. Sell the Collateral, at Lender's discretion, as a
unit or in parcels, at one or more public or private sales. Unless the
Collateral is perishable or threatens to decline speedily in value or
is of a type customarily sold on a recognized market, Lender shall give
or mail to Grantor, or any of them, notice at least ten (10) days in
advance of the time and place of any public sale, or of the date after
which any private sale may be made. Grantor agrees that any requirement
of reasonable notice is satisfied if Lender mails notice by ordinary
mail addressed to Grantor, or any of them, at the last address Grantor
has given Lender in writing. If a public sale is held, there shall be
sufficient compliance with all requirements of notice to the public by
a single publication in any newspaper of general circulation in the
county where the Lender is located, setting forth the time and place of
sale and a brief description of the property to be sold. Lender may be
a purchaser at any public sale.
SELL SECURITIES. Sell any securities included in the Collateral in a
manner consistent with applicable federal and state securities laws.
If, because of restrictions under such laws, Lender is unable, or
believes Lender is unable, to sell the securities in an open market
transaction, Grantor agrees that Lender will have no obligation to
delay sale until the securities can be registered. Then Lender may make
a private sale to one or more persons or to a restricted group of
persons, even though such sale may result in a price that is less
favorable than might be obtained in an open market transaction. Such a
sale will be considered commercially reasonable. If any securities held
as Collateral are "restricted securities" as defined in the Rules of
the Securities and Exchange Commission (such as Regulation D or Rule
144) or the rules of state securities departments under state "Blue
Sky" laws, or if Grantor or any other owner of the Collateral is an
affiliate of the issuer of the securities, Grantor agrees that neither
Grantor, nor any member of Grantor's family, nor any other person
signing this Agreement will sell or dispose of any securities of such
issuer without obtaining Lender's prior written consent.
RIGHTS AND REMEDIES WITH RESPECT TO INVESTMENT PROPERTY, FINANCIAL
ASSETS AND RELATED COLLATERAL. In addition to other rights and remedies
granted under this Agreement and under applicable law, Lender may
exercise any or all of the following rights and remedies: (1) register
with any issuer or broker or other securities intermediary any of the
Collateral consisting of investment property or financial assets
(collectively herein, "investment property") in Lender's sole name or
in the name of Lender's broker, agent or nominee; (2) cause any issuer,
broker or other securities intermediary to deliver to Lender any of the
Collateral consisting of securities, or investment property capable of
being delivered; (3) enter into a control agreement or power of
attorney with any issuer or securities intermediary with respect to any
Collateral consisting of investment property, on such terms as Lender
may deem appropriate, in its sole discretion, including without
limitation, an agreement granting to Lender any of the rights provided
hereunder without further notice to or consent by Grantor; (4) execute
any such control agreement on Grantor's behalf and in Grantor's name,
and hereby irrevocably appoints Lender as agent and attorney-in-fact,
coupled with an interest, for the purpose of executing such control
agreement on Grantor's behalf; (5) exercise any and all rights of
Lender under any such control agreement or power of attorney; (6)
exercise any voting, conversion, registration, purchase, option, or
other rights with respect to any Collateral; (7) collect, with or
without legal action, and issue receipts concerning any notes, checks,
drafts, remittances or distributions that are paid or payable with
respect to any Collateral consisting of investment property. Any
control agreement entered with respect to any investment property shall
contain the following provisions, at Lender's discretion. Lender shall
be authorized to instruct the issuer, broker or other securities
intermediary to take or to refrain from taking such actions with
respect to the investment property as Lender may instruct, without
further notice to or consent by Grantor. Such actions may include
without limitation the issuance of entitlement orders, account
instructions, general trading or buy or sell orders, transfer and
redemption orders, and stop loss orders. Lender shall be further
entitled to instruct the issuer, broker or securities intermediary to
sell or to liquidate any investment property, or to pay the cash
surrender or account termination value with respect to any and all
investment property, and to deliver all such payments and liquidation
proceeds to Lender. Any such control agreement shall contain such
authorizations as are necessary to place Lender in "control" of such
investment collateral, as contemplated under the provisions of the
Uniform Commercial Code, and shall fully authorize Lender to issue
PAGE 7
COMMERCIAL PLEDGE AGREEMENT
(CONTINUED)
"entitlement orders" concerning the transfer, redemption, liquidation
or disposition of investment collateral, in conformance with the
provisions of the Uniform Commercial Code.
FORECLOSURE. Maintain a judicial suit for foreclosure and sale of the
Collateral.
TRANSFER TITLE. Effect transfer of title upon sale of all or part of
the Collateral. For this purpose, Grantor irrevocably appoints Lender
as Grantor's attorney-in-fact to execute endorsements, assignments and
instruments in the name of Grantor and each of them (if more than one)
as shall be necessary or reasonable.
OTHER RIGHTS AND REMEDIES. Have and exercise any or all of the rights
and remedies of a secured creditor under the provisions of the Texas
Uniform Commercial Code, at low, in equity, or otherwise.
APPLICATION OF PROCEEDS. Apply any cash which is part of the
Collateral, or which is received from the collection or sale of the
Collateral, to reimbursement of any expenses, including any costs for
registration of securities, commissions incurred in connection with a
sale, Lender's reasonable attorneys' fees and court costs, whether or
not there is a lawsuit and including any fees on appeal, incurred by
Lender in connection with the collection and sale of such Collateral
and to the payment of the Indebtedness of Borrower to Lender, with any
excess funds to be paid to Grantor as the interests of Grantor may
appear. Borrower agrees, to the extent permitted by law, to pay any
deficiency after application of the proceeds of the Collateral to the
Indebtedness.
ELECTION OF REMEDIES. Except as may be prohibited by applicable law,
all of Lender's rights and remedies, whether evidenced by this
Agreement, the Related Documents, or by any other writing, shall be
cumulative and may be exercised singularly or concurrently. Election by
Lender to pursue any remedy will not bar any other remedy, and an
election to make expenditures or to take action to perform an
obligation of Grantor under this Agreement, after Grantor's failure to
perform, shall not affect Lender's right to declare a default and
exercise its remedies.
JURY WAIVER. THE UNDERSIGNED AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT
OR OTHERWISE) BETWEEN OR AMONG THE UNDERSIGNED AND LENDER ARISING OUT OF OR IN
ANY WAY RELATED TO THIS DOCUMENT, THE RELATED DOCUMENTS, OR ANY RELATIONSHIP
BETWEEN OR AMONG THE UNDERSIGNED AND LENDER. THIS PROVISION IS A MATERIAL
INDUCEMENT TO LENDER TO PROVIDE THE FINANCING EVIDENCED BY THIS DOCUMENT AND THE
RELATED DOCUMENTS.
DETERIORATION OF COLLATERAL. Grantor further covenants and agrees with Lender
that at all times this Agreement is in effect, Grantor shall not permit the
outstanding principal balance of the Note to exceed the Collateral Value (as
defined below) of the securities, stock, brokerage accounts, cash or other
assets described in this Agreement which comprise all or part of the Collateral
for which margin value will be given as indicated in the table set out on the
attached Exhibit A, which by this reference is incorporated into this Agreement
(the "Marginable Collateral"). "Collateral Value" means the sum of the market
values of the Marginable Collateral multiplied by the Margin Percentage
applicable to the type of Marginable Collateral as indicated in Exhibit A.
Market value shall be determined on the basis of the then-current trading price
on the exchange that trades the Marginable Collateral, if traded, or by such
other appropriate method determined by Lender in its sole discretion. If at any
time Grantor is not in compliance with this paragraph, Grantor shall, within
five (5) days following written notice thereof by Lender to Grantor, either (i)
deliver and pledge to Lender additional Collateral acceptable to Lender in its
sole discretion to cause compliance hereunder, or (ii) reduce the outstanding
principal amount of the Note to such amount as is sufficient to cause compliance
hereunder. If Grantor fails to take such action within such time, such event
shall be an immediate and additional Event of Default hereunder and Lender may
exercise any and all rights and remedies (including, without limitation, sale of
the Marginable Collateral or other Collateral) without any further notice by
Lender to Grantor. Notwithstanding the foregoing, if at any time the outstanding
principal
PAGE 8
COMMERCIAL PLEDGE AGREEMENT
(CONTINUED)
balance of the Note exceeds the sum of the market values of the Marginable
Collateral, multiplied by the Liquidation Percentage applicable to the type of
Marginable Collateral as Indicated in Exhibit A, such event shall be an
Immediate Event of Default hereunder and Lender may exercise any and all rights
and remedies (including, without limitation, sale of the Marginable Collateral
or other Collateral) without any notice by Lender to Grantor, regardless of
whether five (5) days shall have elapsed since any notice by Lender to Grantor.
PB AFS CONTROL AGRMNT. An exhibit, titled "CONTROL AGREEMENT," is attached to
this Agreement and by this reference is made a part of this Agreement just as if
all the provisions, terms and conditions of the Exhibit had been fully set forth
in this Agreement.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Agreement. No alteration of or amendment
to this Agreement shall be effective unless given in writing and signed
by the party or parties sought to be charged or bound by the alteration
or amendment.
ATTORNEYS' FEES; EXPENSES. Grantor agrees to pay upon demand all of
Lender's costs and expenses, including Lender's reasonable attorneys'
fees and Lender's legal expenses, incurred in connection with the
enforcement of this Agreement. Lender may hire or pay someone else to
help enforce this Agreement, and Grantor shall pay the costs and
expenses of such enforcement. Costs and expenses include Lender's
reasonable attorneys' fees and legal expenses whether or not there is a
lawsuit, including Lender's reasonable attorneys' fees and legal
expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. Grantor also shall pay all court
costs and such additional fees as may be directed by the court.
CAPTION HEADINGS. Caption headings in this Agreement are for
convenience purposes only and are not to be used to interpret or define
the provisions of this Agreement.
GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF
TEXAS. THIS AGREEMENT HAS BEEN ACCEPTED BY LENDER IN THE STATE OF
TEXAS.
CHOICE OF VENUE. If there is a lawsuit, and if the transaction
evidenced by this Agreement occurred in Dallas County, Grantor agrees
upon Lender's request to submit to the jurisdiction of the courts of
Dallas County, State of Texas.
JOINT AND SEVERAL LIABILITY. All obligations under this Agreement shall
be the joint and several obligations of both the Borrower and the
Grantor. This means that each Grantor signing below, as well as each
Borrower, is and shall be responsible for all obligations under this
Agreement. In addition, all references to Grantor shall mean each and
every Grantor and all references to Borrower shall mean each and every
Borrower.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any
rights under this Agreement unless such waiver is given in writing and
signed by Lender. No delay or omission on the part of Lender in
exercising any right shall operate as a waiver of such right or any
other right. A waiver by Lender of a provision of this Agreement shall
not prejudice or constitute a waiver of Lender's right otherwise to
demand strict compliance with that provision or any other provision of
this Agreement. No prior waiver by Lender, nor any course of dealing
between Lender and Grantor, shall constitute a waiver of any of
Lender's rights or of any of Grantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any instance shall
not constitute continuing consent to subsequent instances where such
consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
PAGE 9
COMMERCIAL PLEDGE AGREEMENT
(CONTINUED)
INFORMATION WAIVER. Lender may provide, without any limitation
whatsoever, to any one or more purchasers, potential purchasers, or
affiliates of BANK ONE CORPORATION, any information or knowledge Lender
may have about Grantor or about any matter relating to this Agreement,
and Grantor hereby waives any right to privacy Grantor may have with
respect to such matters.
INDEMNITY. Grantor hereby agrees to indemnify, defend and hold harmless
Lender, and its officers, directors, shareholders, employees, agents
and representatives (each an "Indemnified Person") from and against any
and all liabilities, obligations, claims, losses, damages, penalties,
actions, judgments, suites costs, expenses or disbursements of any kind
or nature (collectively, the "Claims") which may be imposed on,
incurred by or asserted against, any Indemnified Person (whether or not
caused by any Indemnified Person's sole, concurrent or contributory
negligence) arising in connection with this Agreement or the Collateral
(including, without limitation, the enforcement of this Agreement and
the Related Documents and the defense of any Indemnified Person's
action and/or inactions in connection with this Agreement and the
Related Documents), except to the limited extent that the Claims
against the Indemnified Person are proximately caused by such
Indemnified Person's gross negligence or willful misconduct. The
indemnification provided for in this Section shall survive the
termination of this Agreement and shall extend and continue to benefit
each individual or entity who is or has at any time been an Indemnified
Person hereunder.
NOTICES. Any notice required to be given under this Agreement shall be
given in writing, and shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law),
when deposited with a nationally recognized overnight courier, or, if
mailed, when deposited in the United States mail, as first class,
certified or registered mail postage prepaid, directed to the addresses
shown near the beginning of this Agreement. Any party may change its
address for notices under this Agreement by giving formal written
notice to the other parties, specifying that the purpose of the notice
is to change the party's address. For notice purposes, Grantor agrees
to keep Lender informed at all times of Grantor's current address.
Unless otherwise provided or required by law, if there is more than one
Grantor, any notice given by Lender to any Grantor is deemed to be
notice given to all Grantors.
PAYMENT OF INTEREST AND FEES. Notwithstanding any other provision of
this Agreement or any provision of any Related Document, Grantor does
not agree or intend to pay, and Lender does not agree or intend to
charge, collect, take, reserve or receive (collectively referred to
herein as "charge or collect"), any amount in the nature of interest or
in the nature of a fee for the Indebtedness which would in any way or
event (including demand, prepayment, or acceleration) cause Lender to
contract for, charge or collect more for the Indebtedness than the
maximum Lender would be permitted to charge or collect by any
applicable federal or Texas state law. Any such excess interest or
unauthorized fee will, instead of anything stated to the contrary, be
applied first to reduce the unpaid principal balance of the
Indebtedness, and when the principal has been paid in full, be refunded
to Grantor.
SEVERABILITY. If a court of competent jurisdiction finds any provision
of this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision
illegal, invalid, or unenforceable as to any other circumstance. If
feasible, the offending provision shall be considered modified so that
it becomes legal, valid and enforceable. If the offending provision
cannot be so modified, it shall be considered deleted from this
Agreement. Unless otherwise required by law, the illegality,
invalidity, or unenforceability of any provision of this Agreement
shall not affect the legality, validity or enforceability of any other
provision of this Agreement.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this
Agreement on transfer of Grantor's interest, this Agreement shall be
binding upon and inure to the benefit of the parties, their successors
and assigns. If ownership of the Collateral becomes vested in a person
other than Grantor, Lender, without notice to Grantor, may deal with
Grantor's successors with reference to this Agreement and the
Indebtedness by way of forbearance or extension without releasing
Grantor from the obligations of this Agreement or liability under the
Indebtedness.
PAGE 10
COMMERCIAL PLEDGE AGREEMENT
(CONTINUED)
TIME IS OF THE ESSENCE. Time is of the essence in the performance of
this Agreement.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Texas Uniform Commercial Code:
AGREEMENT. The word "Agreement" means this Commercial Pledge Agreement,
as this Commercial Pledge Agreement may be amended or modified from
time to time, together with all exhibits and schedules attached to this
Commercial Pledge Agreement from time to time.
BORROWER. The word "Borrower" means GENITOPE CORPORATION, and all other
persons and entities signing the Note in whatever capacity.
COLLATERAL. The word "Collateral" means all of Grantor's right, title
and interest in and to all the Collateral as described in the
Collateral Description section of this Agreement.
DEFAULT. The word "Default" means the Default set forth in this
Agreement in the section titled "Default."
EVENT OF DEFAULT. The words "Event of Default" mean any of the Events
of Default set forth in this Agreement in the Default section of this
Agreement.
GRANTOR. The word "Grantor" means XXXXXXXX X. XXXXXX, XX.
INCOME AND PROCEEDS. The words "Income and Proceeds" mean all present
and future income, proceeds, earnings, increases, and substitutions
from or for the Collateral of every kind and nature, including without
limitation all payments, interest, profits, distributions, benefits,
rights, options, warrants, dividends, stock dividends, stock splits,
stock rights, regulatory dividends, subscriptions, monies, claims for
money due and to become due, proceeds of any insurance on the
Collateral, shares of stock of different par value or no par value
issued in substitution or exchange for shares included in the
Collateral, whether voluntary or involuntary, by agreement or by
operation of law, and all other property Grantor is entitled to receive
on account of such Collateral, including accounts, documents,
instruments, chattel paper, and general intangibles.
INDEBTEDNESS. The word "Indebtedness" means the indebtedness evidenced
by the Note or Related Documents, including all principal and interest
together with all other indebtedness and costs and expenses for which
Borrower is responsible under this Agreement or under any of the
Related Documents. In addition, and without limitation, the term
"Indebtedness" includes all amounts identified in the
Cross-Collateralization, Revolving Line of Credit and Future Advances
paragraphs as contained in one or more of the Related Documents.
LENDER. The word "Lender" means Bank One, N.A., with its main office at
Chicago, Illinois, its successors and assigns.
NOTE. The word "Note" means the Note executed by Borrower in the
principal amount of $3,000,000.00 dated July 28, 2003, together with
all renewals of, extensions of, modifications of, refinancings of,
consolidations of, and substitutions for the note or credit agreement.
OBLIGOR. The word "Obligor" means without limitation any and all
persons obligated to pay money or to perform some other act under the
Collateral.
PAGE 11
COMMERCIAL PLEDGE AGREEMENT
(CONTINUED)
RELATED DOCUMENTS. The words "Related Documents" mean all promissory
notes, credit agreements, loan agreements, environmental agreements,
guaranties, security agreements, mortgages, deeds of trust, security
deeds, collateral mortgages, and all other instruments, agreements and
documents, whether now or hereafter existing, executed in connection
with the Indebtedness.
BORROWER AND GRANTOR HAVE READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS
COMMERCIAL PLEDGE AGREEMENT AND AGREE TO ITS TERMS. THIS AGREEMENT IS DATED JULY
28, 2003.
GRANTOR:
X /s/ Xxxxxxxx X. Xxxxxx, Xx.
_____________________________________________________
XXXXXXXX X. XXXXXX, XX., INDIVIDUALLY
BORROWER:
GENITOPE CORPORATION
By: /s/ Xxx X. Xxxxxx, Xx.
___________________________________________________
EXHIBIT A
BORROWER: GENITOPE CORPORATION LENDER: BANK ONE, N.A., WITH ITS MAIN OFFICE AT
8201 XXXXXXX, XX 21 CHICAGO, ILLINOIS
XXXXXX, XX 00000 DALLAS PRIVATE CLIENT SERVICES LPO
0000 XXXX XXXXXX
XXXXXX, XX 00000
TYPE OF MARGINABLE COLLATERAL MARGIN PERCENTAGE (%) LIQUIDATION PERCENTAGE (%)
Bank One Deposits 100 100
Investment Grade U.S. Commercial 97 100
Paper Money Market Mutual Funds,
Non-Bank One Deposits
U.S. government/agency bonds, 95 100
Investment grade Municipal Debt,
Investment grade Corporate Debt each
with a term less than or equal to 5
years
U.S. government/agency bonds, 90 95
Investment grade Municipal Debt, each
with a term greater than 5 years
Mutual Fund that invests in a 90 95
diversified portfolio in which at
least 95% is comprised of Investment
grade bonds
Mutual Fund that invests in a 85 90
diversified portfolio of stocks or
bonds and not considered a Volatile
Mutual Fund
Common or preferred stock traded on 85 90
NYSE, AMEX, or NASDAQ, having a share
price of $ 10.00 or greater
Volatile Mutual Fund a mutual fund whose price fluctuation (or beta) is two or
more times the price fluctuation of the S&P 500.
EXHIBIT B
BORROWER: GENITOPE CORPORATION LENDER: BANK ONE, N.A., WITH ITS MAIN OFFICE AT
8201 XXXXXXX, XX 21 CHICAGO, ILLINOIS
XXXXXX, XX 00000 DALLAS PRIVATE CLIENT SERVICES LPO
0000 XXXX XXXXXX
XXXXXX, XX 00000
GRANTOR: XXXXXXXX X. XXXXXX, XX.
8201 XXXXXXX, XX 21
XXXXXX, XX 00000
THIS EXHIBIT B IS ATTACHED TO AND BY THIS REFERENCE IS MADE A PART OF THE
COMMERCIAL PLEDGE AGREEMENT, DATED JULY 28, 2003, AND EXECUTED IN CONNECTION
WITH A LOAN OR OTHER FINANCIAL ACCOMMODATIONS BETWEEN BANK ONE, N.A., WITH ITS
MAIN OFFICE AT CHICAGO, ILLINOIS AND GENITOPE CORPORATION.
FORM OF NOTICE OF SOLE CONTROL
EXHIBIT B
JULY 28, 2003
BANC ONE SECURITIES CORPORATION
ATTENTION: _________________________
RE: NOTICE OF SOLE CONTROL
LADIES AND GENTLEMEN:
PURSUANT TO THE CONTROL AGREEMENT, DATED JULY 28, 2003 (A COPY OF WHICH IS
ATTACHED HERETO), WE GIVE YOU NOTICE OF OUR SOLE CONTROL OVER ACCOUNT NUMBER
00X000000 AND ANY PROPERTY THEREIN (THE "ACCOUNT") HELD WITH BANC ONE SECURITIES
CORPORATION. YOU ARE INSTRUCTED NOT TO ACCEPT ANY INSTRUCTIONS, ENTITLEMENT
ORDERS OR DIRECTIONS WITH RESPECT TO THE ACCOUNT FROM ANY PARTY OTHER THAN THE
UNDERSIGNED AFFILIATE.
YOU ARE INSTRUCTED TO DELIVER A COPY OF THIS NOTICE TO XXXXXXXX X. XXXXXX, XX.
BANK ONE, N.A.
By: /s/ Xxxxx X. Xxxxxx
_________________________________
Name: Xxxxx X. Xxxxxx
_______________________________
Title: Vice President
______________________________
PAGE 2
COMMERCIAL PLEDGE AGREEMENT
(CONTINUED)
THIS EXHIBIT B IS EXECUTED ON JULY 28, 2003.
GRANTOR
X /s/ Xxxxxxxx X. Xxxxxx
___________________________________________________
XXXXXXXX X. XXXXXX, INDIVIDUALLY
BORROWER:
GENITOPE CORPORATION
BY: /s/ Xxx X. Xxxxxx, Xx.
_________________________________________________
APPROVAL EXPIRES MARCH 31, 2002
BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM
STATEMENT OF PURPOSE FOR AN EXTENSION OF CREDIT SECURED BY MARGIN STOCK
(FEDERAL RESERVE FORM U-1)
BANK ONE, N.A., WITH ITS MAIN OFFICE AT CHICAGO, ILLINOIS
Name of Bank
This report is required by law (15 U.S.C. 78g and 78w; 12 CPR 221).
The Federal Reserve may not conduct Public reporting burden for this
or sponsor, and an organization (or collection of information is
a person) is not required to estimated to average 4.2 minutes
respond to, a collection of (0.07 hours) per response,
information unless it displays a including the time for reviewing
currently valid OMB control number. instructions, searching existing
data sources, gathering and
maintaining the data needed, and
completing and reviewing the
collection of information. Send
comments regarding this burden
estimate, including suggestions for
reducing this burden. to Secretary,
Board of Governors of the Federal
Reserve System, 00xx xxxx X
Xxxxxxx, X.X., Xxxxxxxxxx, X.X.
00000; and to the Office of
Management and Budget. Paperwork
Reduction Project (7100-0115),
Xxxxxxxxxx. X.X. 00000.
INSTRUCTIONS
1. This form must be completed when a bank extends credit in
excess of $100,000 secured directly or indirectly, in whole or in part,
by any margin stock.
2. The term "margin stock" is defined in Regulation U (12 CFR
221) and includes. principally: (1) stocks that are registered on a
national securities exchange or that are on the Federal Reserve Board's
List of Marginable OTC Stocks; (2) debt securities (bonds) that are
convertible into margin stocks; (3) any over-the-counter security
designated as qualified for trading in the National Market System under
a designation plan approved by the Securities and Exchange Commission
(NMS security); and (4) shares of most mutual funds, unless 95 per cent
of the assets of the fund are continuously invested in U.S. government,
agency, state, or municipal obligations.
3. Please print or type (if space is inadequate, attach separate
sheet).
PART I TO BE COMPLETED BY BORROWER(S)
1. What is the amount of the credit being extended? $3,000,000 &
$5,000,000
2. Will any part of this credit be used to purchase or carry
margin stock? [ ] Yes [X] No
IF THE ANSWER IS "NO," describe the specific purpose of the credit.
_______________________________________________________________________
Business Needs
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
I (We) have read this form and certify that to the best of my (our)
knowledge and belief the information given is true, accurate, and
complete, and that the margin stock and any other securities
collateralizing this credit are authentic, genuine, unaltered, and not
stolen, forged, or counterfeit.
Signed: Signed:
/s/ Xxx X. Xxxxxx, Xx.
____________________________________ _______________________________________
Borrower's Signature Date Borrower's Signature Date
____________________________________ _______________________________________
Print or Type Name Print or Type Name
This form should not be signed if blank.
A BORROWER WHO FALSELY CERTIFIES THE PURPOSE OF A CREDIT ON THIS FORM OR
OTHERWISE WILLFULLY OR INTENTIONALLY EVADES THE PROVISIONS OF REGULATION U
WILL ALSO VIOLATE FEDERAL RESERVE REGULATION X, "BORROWERS WHO OBTAIN
SECURITIES CREDIT."
PART II TO BE COMPLETED BY BANK ONLY IF THE PURPOSE OF THE CREDIT IS TO PURCHASE
OR CARRY MARGIN SECURITIES (PART I (2) ANSWERED "YES")
1. List the margin stock securing this credit; do not include debt
securities convertible into margin stock. The maximum loan value of margin stock
is 50 per cent of its current market value under the current Supplement to
Regulation U.
---------------------------------------------------------------------------------------------------
Date and source
No. of Market price of valuation Total market
shares Issue per share (See note below) value per issue
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
2. List the debt securities convertible into margin stock securing this
credit. The maximum loan value of such debt securities is 50 per cent of the
current market value under the current Supplement to Regulation U.
---------------------------------------------------------------------------------------------------
Date and source
Principal of valuation Total market
amount Issue Market price (See note below) value per issue
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
3. List other collateral including nonmargin stock securing this credit.
----------------------------------------------------------------------------------------------
Date and source
of valuation Good faith
Describe briefly Market price (See note below) loan value
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
NOTE: BANK NEED NOT COMPLETE "DATE AND SOURCE OF VALUATION" IF THE MARKET VALUE
WAS OBTAINED FROM REGULARLY PUBLISHED INFORMATION A JOURNAL OF GENERAL
CIRCULATION OR AUTOMATED QUOTATION SYSTEM
PART III TO BE SIGNED BY A BANK OFFICER IN ALL INSTANCES
I am a duly authorized representative of the bank and understand that this
credit secured by margin stock may be subject to the credit restrictions of
Regulation U. I have read this form and any attachments, and I have accepted the
customer's statement in Part I in good faith as required by Regulation U *; and
I certify that to the best of my knowledge and belief, all the information given
is true, accurate, and complete. I also certify that if any securities that
directly secure the credit are not or will not be registered in the name of the
borrower or its nominee, I have or will cause to have examined the written
consent of the registered owner to pledge such securities. I further certify
that any securities that have been or will be physically delivered to the bank
in connection with this credit have been or will be examined, that all
validation procedures required by bank policy and the Securities Exchange Act of
1934 (section 17 (f), as amended), have been or will be performed, and that I am
satisfied to the best of my knowledge and belief that such securities are
genuine and not stolen or forged and their faces have not been altered.
SIGNED:
/s/ Xxxxx Xxxxxx
____________________________________ _____________________________________
Date Bank officer's signature
Xxxxx X. Xxxxxx
____________________________________ _____________________________________
Title Print or type name
* TO ACCEPT THE CUSTOMER'S STATEMENT: IN GOOD FAITH, THE OFFICER OF THE BANK
MUST BE ALERT TO THE CIRCUMSTANCES SURROUNDING THE CREDIT AND, IF IN POSSESSION
OF ANY INFORMATION THAT WOULD CAUSE A PRUDENT PERSON NOT TO ACCEPT THE STATEMENT
WITHOUT INQUIRY MUST HAVE INVESTIGATED AND BE SATISFIED THAT THE STATEMENT IS
TRUTHFUL. AMONG THE FACTS WHICH WOULD REQUIRE SUCH INVESTIGATION ARE RECEIPT OF
THE STATEMENT THROUGH THE MAIL OR FROM A THIRD PARTY.
THIS FORM MUST BE RETAINED BY THE LENDER FOR THREE YEARS AFTER THE CREDIT IS
EXTINGUISHED.
[BANK ONE LOGO]
NOTICE OF FINAL AGREEMENT
BORROWER: GENITOPE CORPORATION LENDER: BANK ONE, N.A., WITH ITS MAIN
8201 XXXXXXX, XX 00 XXXXXX XX XXXXXXX, XXXXXXXX
XXXXXX, XX 00000 DALLAS PRIVATE CLIENT
SERVICES LPO
0000 XXXX XXXXXX
XXXXXX, XX 00000
THE WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
AS USED IN THIS NOTICE, THE FOLLOWING TERMS HAVE THE FOLLOWING MEANINGS:
LOAN. The term "Loan" means the following described loan: a non-precomputed
Variable Rate Nondisclosable Revolving Line of Credit Loan to a Corporation for
$3,000,000.00 due on December 6, 2003. A margin of 0.000% is added to the index
rate. Lender will tell the Borrower the current index rate upon Borrower's
request.
LOAN AGREEMENT. The term "Loan Agreement" means one or more promises,
promissory notes, agreements, undertakings, security agreements, deeds of trust
or other documents, or commitments, or any combination of those actions or
documents, relating to the Loan, including without limitation the following:
LOAN DOCUMENTS
Corporate Resolution: GENITOPE CORPORATION TX Commercial Promissory Note TX Commercial Pledge Agreement: Banc
Guaranty: XXXXXXXX X. XXXXXX, XX. Federal Reserve Form One Securities Corporation account number 6OY503356, in
U-1: Banc One Securities Corporation account number the name of Xxxxxxxx X. Xxxxxx, Xx., together with all
00X000000, in the name of Xxxxxxxx X. Xxxxxx, Xx., (i) securities, commodity contracts, financial assets,
together with all: (i) securities, commodity contracts, other investment property and cash therein, or
financial assets, other investment property and cash associated therewith, whether presently or in the
therein, or associated therewith, whether presently or in future; (ii) accounts and general intangibles
the future; (ii) accounts and general intangibles pertaining thereto, forming a part thereof, arising
pertaining thereto, forming a part thereof, arising thereunder or associated therewith: and (iii) all
thereunder or associated therewith; and (iii) all proceeds proceeds and products thereof, accessions thereto and
and products thereof, accessions thereto and substitutions substitutions therefor.; owned by XXXXXX, JR.
therefor. PB Exhibit Det of Collateral - Exhibit A Irrevocable Stock or Bond Power: Banc One Securities
Disbursement Request and Authorization Notice of Final Corporation account number 00X000000, in the name of
Agreement Authorization Agreement for Auto Debit Xxxxxxxx X. Xxxxxx, Xx., together with all: (i)
securities, commodity contracts, financial assets,
other investment property and cash therein, or
associated therewith, whether presently or in the
future; (ii) accounts and general intangibles pertaining
thereto, forming a part thereof, arising thereunder or
associated therewith; and (iii) all proceeds and products
thereof, accessions thereto and substitutions therefor.
PARTIES. The term "Parties" means Bank One, N.A., with its main office at
Chicago, Illinois and any and all entities or individuals who are obligated to
repay the loan or have pledged property as security for the Loan, including
without limitation the following:
BORROWER: GENITOPE CORPORATION
GRANTOR(S): XXXXXXXX X. XXXXXX, XX.
GUARANTOR 1: XXXXXXXX X. XXXXXX, XX.
THIS NOTICE OF FINAL AGREEMENT IS GIVEN BY BANK ONE, N.A., WITH ITS MAIN OFFICE
AT CHICAGO, ILLINOIS PURSUANT TO SECTION 26.02 OF THE TEXAS BUSINESS AND
COMMERCE CODE. EACH PARTY WHO SIGNS BELOW, OTHER THAN BANK ONE, N.A., WITH ITS
MAIN OFFICE AT CHICAGO, ILLINOIS, ACKNOWLEDGES, REPRESENTS, AND WARRANTS TO BANK
ONE, N.A., WITH ITS MAIN OFFICE AT CHICAGO, ILLINOIS THAT IT HAS RECEIVED, READ
AND UNDERSTOOD THIS NOTICE OF FINAL AGREEMENT. THIS NOTICE IS DATED JULY 28,
2003.
BORROWER:
GENITOPE CORPORATION
BY: /s/ XXX X. XXXXXX XX.
------------------------------------
PAGE 2
NOTICE OF FINAL AGREEMENT
(CONTINUED)
GRANTOR
X /s/ XXXXXXXX X. XXXXXX, XX.
------------------------------------
XXXXXXXX X. XXXXXX, XX., INDIVIDUALLY
GUARANTOR:
X /s/ XXXXXXXX X. XXXXXX, XX.
------------------------------------
XXXXXXXX X. XXXXXX, XX., INDIVIDUALLY
LENDER:
BANK ONE, N.A., WITH ITS MAIN AT CHICAGO, ILLINOIS
X /s/ Xxxxx X. Xxxxxx
------------------------------------
AUTHORIZED SIGNER
[BANK ONE LOGO]
PROMISSORY NOTE
BORROWER: GENITOPE CORPORATION LENDER: BANK ONE, N.A., WITH ITS MAIN
8201 XXXXXXX, XX 00 XXXXXX XX XXXXXXX, XXXXXXXX
XXXXXX, XX 00000 DALLAS PRIVATE CLIENT SERVICES
LPO
0000 XXXX XXXXXX
XXXXXX, XX 00000
Principal Amount: $5,000,000.00 Date of Note: July 28, 2003
PROMISE TO PAY. GENITOPE CORPORATION ("BORROWER") PROMISES TO PAY TO BANK ONE,
N.A., WITH ITS MAIN OFFICE AT CHICAGO, ILLINOIS ("LENDER"), OR ORDER, IN LAWFUL
MONEY OF THE UNITED STATES OF AMERICA, THE PRINCIPAL AMOUNT OF FIVE MILLION &
00/100 DOLLARS ($5,000,000.00) OR SO MUCH AS MAY BE OUTSTANDING, TOGETHER WITH
INTEREST ON THE UNPAID OUTSTANDING PRINCIPAL BALANCE OF EACH ADVANCE. INTEREST
SHALL BE CALCULATED FROM THE DATE OF EACH ADVANCE UNTIL REPAYMENT OF EACH
ADVANCE OR MATURITY, WHICHEVER OCCURS FIRST.
PAYMENT. BORROWER WILL PAY THIS LOAN IN ONE PAYMENT OF ALL OUTSTANDING PRINCIPAL
PLUS ALL ACCRUED UNPAID INTEREST ON DECEMBER 6. 2003. IN ADDITION, BORROWER WILL
PAY REGULAR MONTHLY PAYMENTS OF ALL ACCRUED UNPAID INTEREST DUE AS OF EACH
PAYMENT DATE, BEGINNING SEPTEMBER 6, 2003, WITH ALL SUBSEQUENT INTEREST PAYMENTS
TO BE DUE ON THE SAME DAY OF EACH MONTH AFTER THAT. PAYMENTS AND ANY OTHER
CREDITS SHALL BE ALLOCATED AMONG PRINCIPAL, INTEREST AND FEES AT THE DISCRETION
OF LENDER UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW. THE ANNUAL INTEREST RATE
FOR THIS NOTE IS COMPUTED ON A 365/360 BASIS; THAT IS, BY APPLYING THE RATIO OF
THE ANNUAL INTEREST RATE OVER A YEAR OF 360 DAYS, MULTIPLIED BY THE OUTSTANDING
PRINCIPAL BALANCE, MULTIPLIED BY THE ACTUAL NUMBER OF DAYS THE PRINCIPAL BALANCE
IS OUTSTANDING, UNLESS SUCH CALCULATION WOULD RESULT IN A USURIOUS RATE, IN
WHICH CASE INTEREST SHALL BE CALCULATED ON A PER DIEM BASIS OF A YEAR OF 365 OR
366 DAYS, AS THE CASE MAY BE. Borrower will pay Lender at Lender's address shown
on loan account statements sent to the Borrower, Lender's address shown in any
payment coupon book provided to the Borrower, or at such other place as Lender
may designate in writing.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an index which is the Prime Rate (the "Index").
"Prime Rate" shall mean the rate announced from time to time by Lender as its
prime rate (which rate may not be the lowest, best or most favorable rate of
interest which Lender may charge on loans to its customers). Each change in the
rate to be charged on this Note will become effective without notice on the same
day as the Index changes. THE INTEREST RATE TO BE APPLIED PRIOR TO MATURITY TO
THE UNPAID PRINCIPAL BALANCE OF THIS NOTE WILL BE AT A RATE OF 0.500 PERCENTAGE
POINTS OVER THE INDEX. NOTICE: Under no circumstances will the interest rate on
this Note be more than the maximum rate allowed by applicable law. For purposes
of this Note, the "maximum rate allowed by applicable law" means the greater of
(A) the maximum rate of interest permitted under federal or other law applicable
to the indebtedness evidenced by this Note, or (B) the "Weekly Ceiling," as of
the date of this Note, as referred to in Chapter 303 of the Texas Finance Code.
PREPAYMENT. Borrower may pay without fee all or a portion of the principal
amount owed hereunder earlier than it is due. All prepayments shall be applied
to the Indebtedness in such order and manner as Lender may from time to time
determine in its sole discretion. Borrower agrees not to send Lender payments
marked "paid in full," "without recourse," or similar language. If Borrower
sends such a payment, Lender may accept it without losing any of Lender's rights
under this Note, and Borrower will remain obligated to pay any further amount
owed to Lender. All written communications concerning disputed amounts,
including any check or other payment instrument that indicates that the payment
constitutes "payment in full" of the amount owed or that is tendered with other
conditions or limitations or as full satisfaction of a disputed amount must be
mailed or delivered to: Wealth Management Loan Servicing, X.X. Xxx 00000
Xxxxxxxxxx, XX 00000-0000.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged
5.000% OF THE REGULARLY SCHEDULED PAYMENT OR $25.00, WHICHEVER IS GREATER.
POST MATURITY RATE. Upon the occurrence of any Event of Default, or if this Note
is not paid at final maturity, Lender, at Lender's option, may add any unpaid
accrued interest to principal and such sum will bear interest therefrom until
paid, at the Post Maturity Rate provided In this Note. The Post Maturity Rate on
this Note is the lesser of the maximum rate allowed by applicable law or 3.000
percentage points over the variable interest rate. Borrower will pay interest on
all sums due after final maturity, whether by acceleration or otherwise, at that
rate. Borrower also will pay interest at the Post Maturity Rate on the principal
amount of each past due Installment from the due date until paid.
PAGE 2
PROMISSORY NOTE
(CONTINUED)
DEFAULT. Each of the following shall constitute an event of default ("Event of
Default") under this Note:
PAYMENT DEFAULT. Borrower fails to make any payment when due under this
Note.
OTHER DEFAULTS. Borrower fails to comply with or to pay or perform any
other term, obligation, covenant or condition contained in this Note or
in any of the Related Documents or to comply with or to pay or perform
any term, obligation, covenant or condition contained in any other
agreement between Lender and Borrower or between Borrower and any
affiliate of BANK ONE CORPORATION.
TRANSFER OF ASSETS. Borrower leases, sells, or otherwise conveys, or
agrees to lease, sell, or otherwise convey, a material part of its
assets or business outside of the ordinary course of business.
DEFAULTS WITH RESPECT TO THIRD PARTIES. Borrower fails to make any
payment when due or fails to comply with or to perform any term,
obligation, covenant or condition contained in any agreement between
any other person and Borrower.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this Note
or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes false
or misleading at any time thereafter
JUDGMENTS OR DECREES. One or more judgments or decrees shall be entered
against the Borrower and such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal.
INSOLVENCY. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a
receiver for any part of Borrower's property, any assignment for the
benefit of creditors, any type of creditor workout, or the commencement
of any proceeding under any bankruptcy or insolvency laws by or against
Borrower.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure,
replevin, repossession, attachment, levy, execution, or forfeiture
proceedings, whether by judicial proceeding, self-help, or any other
method, by any creditor of Borrower, or by any governmental agency
against the Collateral or any other assets of Borrower. This includes a
garnishment of any of Borrower's accounts, including deposit accounts,
with Lender. However, this Event of Default shall not apply If there is
a good faith dispute by Borrower as to the validity or reasonableness
of the claim which is the basis of the creditor or forfeiture
proceeding and if Borrower gives Lender written notice of the creditor
or forfeiture proceeding and deposits with Lender monies or a surety
bond for the creditor or forfeiture proceeding, in an amount determined
by Lender, in its sole discretion, as being an adequate reserve or bond
for the dispute.
FAILURE TO COMPLY WITH LAWS. Borrower fails to comply with all
applicable statutes, laws, ordinances and governmental rules,
regulations and orders to which it is subject or which are applicable
to its business, property and assets.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent
(25%) or more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's
financial condition, or Lender believes the prospect of payment or
performance of this Note is impaired.
EVENTS AFFECTING GUARANTOR. Any of the preceding Events of Default
occurs with respect to any guarantor of the Indebtedness as if the word
"guarantor" were substituted for the word "Borrower" in such Event of
Default, or any guarantor dies or becomes incompetent, or revokes or
disputes the validity of, or liability under, any guaranty.
INSECURITY. Lender in good faith believes itself insecure.
LENDER'S RIGHTS. Upon the occurrence of any Event of Default, Lender may declare
the entire unpaid principal balance on this Note and the Indebtedness and all
accrued unpaid interest immediately due, without notice (except that in the case
of any Event of Default of the type described in the DEFAULT - Insolvency
section herein, such acceleration shall be automatic and not at Lender's
PAGE 3
PROMISSORY NOTE
(CONTINUED)
option), and then Borrower will pay that amount. Borrower shall be liable for
any deficiency remaining after disposition of any collateral which Lender may
choose to realize upon.
ATTORNEYS' FEES; EXPENSES. Lender may hire an attorney to help collect this Note
if Borrower does not pay, and Borrower will pay Lender's reasonable attorneys'
fees. Borrower also will pay Lender all other amounts Lender actually incurs as
court costs, lawful fees for filing, recording, releasing to any public office
any instrument securing this Note; the reasonable cost actually expended for
repossessing, storing, preparing for sale, and selling any security; and fees
for noting a lien on or transferring a certificate of title to any motor vehicle
offered as security for this Note, or premiums or identifiable charges received
in connection with the sale of authorized insurance.
GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF TAXES. THIS NOTE HAS
BEEN ACCEPTED BY LENDER IN THE STATE OF TEXAS.
CHOICE OF VENUE. If there is a lawsuit, and if the transaction evidenced by this
Note occurred in Dallas County, Borrower agrees upon Lender's request to submit
to the jurisdiction of the courts of Dallas County, State of Texas.
DISHONORED CHECK CHARGE. Borrower will pay a processing fee of $25.00 if any
check given by Borrower to Lender as a payment on this loan is dishonored.
RIGHT OF SETOFF. Borrower grants to Lender a security interest in, as well as a
right of setoff against, and hereby assigns, conveys, delivers, pledges and
transfers to Lender, as security for repayment of the Indebtedness, all
Borrower's right, title and interest in and to all Borrower's accounts (whether
checking, savings, or some other account) with Lender or any subsidiary or
affiliate of BANK ONE CORPORATION (each hereinafter referred to as a "Lender
Affiliate") and all other obligations at any time owing by Lender or any Lender
Affiliate to Borrower. This includes all accounts Borrower holds jointly with
someone else and all accounts Borrower may open in the future. However, this
does not include any XXX or Xxxxx accounts, or any trust accounts for which the
grant of a security interest would be prohibited by law. Borrower authorizes
Lender, without prior notice to Borrower and irrespective of (i) whether or not
Lender has made any demand under this Note or the Related Documents or (ii)
whether such Indebtedness is contingent, matured or unmatured, to the extent
permitted by law, to collect, charge and/or setoff all sums owing on the
Indebtedness against any and all such accounts and other obligations, and, at
Lender's option, to administratively freeze or direct a Lender Affiliate to
administratively freeze all such accounts and other obligations to allow Lender
to protect Lender's security interest, collection, charge and setoff rights
provided in this paragraph.
LINE OF CREDIT. This Note evidences a revolving line of credit. The unpaid
principal balance of this Note shall increase and decrease with each new advance
and payment hereunder, as the case may be. Subject to the terms hereof, Borrower
may borrow, repay and reborrow hereunder. Advances under this Note, as well as
directions for payment from Borrower's accounts, may be requested orally or in
writing by Borrower or by an authorized person. Lender may, but need not,
require that all oral requests be confirmed in writing. Borrower agrees to be
liable for all sums either: (A) advanced in accordance with the instructions of
an authorized person or (B) credited to any of Borrower's accounts with Lender.
Lender will have no obligation to advance funds under this Note if: (A) Borrower
or any guarantor is in default under the terms of this Note or any agreement
that Borrower or any guarantor has with Lender, including any agreement made in
connection with the signing of this Note; (B) Borrower or any guarantor ceases
doing business or is insolvent; (C) any guarantor seeks, claims or otherwise
attempts to limit, modify or revoke such guarantor's guarantee of this Note or
any other loan with Lender; (D) Borrower has applied funds provided pursuant to
this Note for purposes other than those authorized by Lender; or (E) Lender in
good faith believes itself insecure. THIS REVOLVING LINE OF CREDIT SHALL NOT BE
SUBJECT TO SEC. 346 OF THE TEXAS FINANCE CODE.
LATE CHARGES. In the "Late Charge" provision set forth above, the following
language is hereby added after the word "greater": "up to the maximum amount of
Two Hundred Fifty Dollars ($250.00) per late charge."
FINANCIAL STATEMENTS. Borrower shall furnish Lender with such financial
statements and other related information at such frequencies and in such detail
as Lender may reasonably request.
ENFORCEABILITY AND ORGANIZATION. Borrower is duly authorized to transact
business in all states in which Borrower is doing business, having obtained all
necessary filings, governmental licenses and approvals for each state in which
Borrower is doing business. Borrower's execution, delivery and performance of
this Note and all the Related Documents have been duly authorized by all
necessary action by Borrower. This Note and all the Related Documents constitute
legal, valid and binding obligations of
PAGE 4
PROMISSORY NOTE
(CONTINUED)
Borrower enforceable against Borrower in accordance with their respective terms.
If applicable, Borrower is an entity which is, and at all times shall be, duly
organized, validly existing, and In good standing under and by virtue of the
laws of the state of its organization.
INFORMATION WAIVER. Lender may provide, without any limitation whatsoever, to
any one or more purchasers, potential purchasers, or affiliates of BANK ONE
CORPORATION, any information or knowledge Lender may have about the undersigned
or about any matter relating to this document and the Related Documents, and the
undersigned hereby waives any right to privacy the undersigned may have with
respect to such matters.
INDEBTEDNESS. The word "Indebtedness" means all principal, interest, and other
amounts, costs and expenses payable under the Note or Related Documents,
together with all renewals of, extensions of, modifications of, consolidations
of and substitutions for the Note or Related Documents, together with interest
on such amounts as provided in this Note, and all obligations, debts and
liabilities, plus interest thereon, of Borrower or any one or more of them to
Lender, as well as all claims by Lender against Borrower or any one or more of
them, whether now existing or hereafter arising, whether related or unrelated to
the purpose of this Note, whether voluntary or otherwise, whether due or not
due, direct or indirect, absolute or contingent, liquidated or unliquidated and
whether Borrower may be liable individually or jointly with others, whether
obligated as guarantor, surety, accommodation party or otherwise and whether
recovery upon such amounts may be or hereafter become barred by any statute of
limitations, and whether the obligation to repay such amounts may be or
hereafter become otherwise unenforceable; and further includes, without
limitation, all principal, interest, and other amounts, costs and expenses
payable under the Related Documents, whether executed by the Borrower or by any
other person or entity, together with all renewals of, extensions of,
modifications of, consolidations of and substitutions for the Related Documents,
together with interest thereon as provided in the Related Documents.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
existing or hereafter arising, executed in connection with the Indebtedness.
LIABILITIES FOR OBLIGATIONS UNDER RELATED DOCUMENTS. Borrower also promises to
pay to Lender all of the Indebtedness. Borrower acknowledges that some of the
Related Documents, pursuant to which Indebtedness may arise, may be executed
only by persons or entities other than the Borrower.
PURPOSE. Borrower agrees that no advances under this Note shall be used for
personal, family or household purposes and that all advances hereunder shall be
used solely for business, commercial, agricultural or other similar purposes.
ARBITRATION. Undersigned and Lender agree that all disputes, claims and
controversies between them whether individual, joint, or class in nature,
arising from this document or otherwise, including without limitation contract
and tort disputes, shall be arbitrated pursuant to the Rules of the American
Arbitration Association in effect at the time the claim is filed, upon request
of either party. No act to take or dispose of any Collateral or Property (as
defined herein or in any Related Document) securing this document shall
constitute a waiver of this arbitration agreement or be prohibited by this
arbitration agreement. This includes, without limitation, obtaining injunctive
relief or a temporary restraining order; invoking a power of sale under any deed
of trust or mortgage; obtaining a writ of attachment or imposition of a
receiver; or exercising any rights relating to personal property, including
taking or disposing of such property with or without judicial process pursuant
to applicable law. Any disputes, claims, or controversies concerning the
lawfulness or reasonableness of any act, or exercise of any right, concerning
any Collateral or Property securing this document, including any claim to
rescind, reform, or otherwise modify any agreement relating to the Collateral or
Property securing this document, shall also be arbitrated, provided however that
no arbitrator shall have the right or the power to enjoin or restrain any act of
any party. Judgment upon any award rendered by any arbitrator may be entered in
any court having jurisdiction. Nothing in this document shall preclude any party
from seeking equitable relief from a court of competent jurisdiction. The
statute of limitations, estoppel, waiver, laches, and similar doctrines which
would otherwise be applicable in an action brought by a party shall be
applicable in any arbitration proceeding, and the commencement of an arbitration
proceeding shall be deemed the commencement of an action for these purposes. The
Federal Arbitration Act shall apply to the construction, interpretation, and
enforcement of this arbitration provision.
JURY WAIVER. THE UNDERSIGNED AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT
OR OTHERWISE) BETWEEN OR AMONG THE UNDERSIGNED AND LENDER ARISING OUT OF OR IN
ANY WAY RELATED TO THIS DOCUMENT, THE RELATED DOCUMENTS, OR ANY RELATIONSHIP
BETWEEN OR AMONG THE UNDERSIGNED AND LENDER. THIS
PAGE 5
PROMISSORY NOTE
(CONTINUED)
PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE FINANCING EVIDENCED
BY THIS DOCUMENT AND THE RELATED DOCUMENTS.
BORROWER'S ACKNOWLEDGEMENT AND AGREEMENT REGARDING AFFILIATE BANKS. Borrower may
now or in the future have a borrowing relationship with Bank One, NA with its
main office in Columbus, Ohio (the "Bank Affiliate"). Lender and Borrower intend
that the terms, covenants, conditions, warranties and obligations of Borrower in
only one agreement in the nature of a loan or credit agreement ("Loan
Agreement") be applicable to the borrowing relationship of Borrower and Lender
and of Borrower and the Bank Affiliate. Therefore, if Borrower executes a Loan
Agreement with the Bank Affiliate, the Borrower agrees that the terms,
covenants, conditions, warranties and obligations of Borrower contained in that
Loan Agreement between Borrower and the Bank Affiliate shall also apply to this
Note.
GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact will
not affect the rest of the Note. Borrower does not agree or intend to pay, and
Lender does not agree or intend to contract for, charge, collect, take, reserve
or receive (collectively referred to herein as "charge or collect"), any amount
in the nature of interest or in the nature of a fee for this loan, which would
in any way or event (including demand, prepayment, or acceleration) cause Lender
to charge or collect more for this loan than the maximum Lender would be
permitted to charge or collect by federal law or the law of the State of Texas
(as applicable). Any such excess interest or unauthorized fee shall, instead of
anything stated to the contrary, be applied first to reduce the principal
balance of this loan, and when the principal has been paid in full, be refunded
to Borrower. The right to accelerate maturity of sums due under this Note does
not include the right to accelerate any interest which has not otherwise accrued
on the date of such acceleration, and Lender does not intend to charge or
collect any unearned interest in the event of acceleration. All sums paid or
agreed to be paid to Lender for the use, forbearance or detention of sums due
hereunder shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full term of the loan evidenced by
this Note until payment in full so that the rate or amount of interest on
account of the loan evidenced hereby does not exceed the applicable usury
ceiling. If any part of this Note cannot be enforced, this fact will not affect
the rest of this Note. It is agreed that any payment which would otherwise for
any reason be deemed unlawful interest under applicable law shall be deemed to
have been applied to the unpaid principal balance of this Note, or to other
Indebtedness. The unpaid balance owing on this Note at any time may be evidenced
by endorsements on this Note or by Lender's internal records, including daily
computer print-outs. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person who
signs, guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, notice of dishonor, notice of intent to
accelerate the maturity of this Note, and notice of acceleration of the maturity
of this Note. Upon any change in the terms of this Note, and unless otherwise
expressly stated in writing, no party who signs this Note, whether as maker,
guarantor, accommodation maker or endorser, shall be released from liability.
Unless specifically permitted otherwise by the terms and conditions of this
Note, no alteration of or amendment to this Note shall be effective unless given
in writing and signed by the party or parties sought to be charged or bound by
the alteration or amendment. Borrower agrees and consents to Lender's sale or
transfer, whether now or later, of this Note, or the Related Documents or of any
participation interest in this Note or Related Documents to one or more
purchasers, whether related or unrelated to Lender. Borrower waives any and all
notices of sale of this Note, the Related Documents or of any participation
interests, as well as any notices of any repurchases of this Note, the Related
Documents, or of any participation interests. The obligations under this Note
are joint and several.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO
THE TERMS OF THE NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
BORROWER:
GENITOPE CORPORATION
BY: /s/ Xxx X. Xxxxxx, Xx.
_________________________________
[BANK ONE LOGO]
CORPORATE RESOLUTION
CORPORATION: GENITOPE CORPORATION LENDER: BANK ONE, N.A., WITH ITS MAIN
8201 XXXXXXX, XX 00 XXXXXX XX XXXXXXX, XXXXXXXX
XXXXXX, XX 00000 DALLAS PRIVATE CLIENT SERVICES
LPO
0000 XXXX XXXXXX
XXXXXX, XX 00000
WE, THE UNDERSIGNED, DO HEREBY CERTIFY THAT:
THE CORPORATION'S EXISTENCE. The complete and correct name of the Corporation is
GENITOPE CORPORATION ("Corporation"). The Corporation is a corporation for
profit which is, and at all times shall be, duly organized, validly existing,
and in good standing under and by virtue of the laws of the State of Delaware.
The Corporation is duly authorized to transact business in the State of Texas
and all other states in which the Corporation is doing business, having obtained
all necessary filings, governmental licenses and approvals for each state in
which the Corporation is doing business. Specifically, the Corporation is, and
at all times shall be, duly qualified as a foreign corporation in all states in
which the failure to so qualify would have a material adverse effect on its
business or financial condition. The Corporation has the full power and
authority to own its properties and to transact the business in which it is
presently engaged or presently proposes to engage. The Corporation maintains an
office at 0000 XXXXXXX, XX 00, XXXXXX, XX 00000. Unless the Corporation has
designated otherwise in writing, the principal office is the office at which the
Corporation keeps its books and records. The Corporation will notify Lender
prior to any change in the location of the Corporation's state of organization
or any change in the Corporation's name. The Corporation shall do all things
necessary to preserve and to keep in full force and effect its existence, rights
and privileges, and shall comply with all regulations, rules, ordinances,
statutes, orders and decrees of any governmental or quasi-governmental authority
or court applicable to the Corporation and the Corporation's business
activities.
RESOLUTIONS ADOPTED. At a meeting of the Directors of the Corporation, or if the
Corporation is a close corporation having no Board of Directors then at a
meeting of the Corporation's shareholders, duly called and held on July 21,
2003, at which a quorum was present and voting, or by other duly authorized
action in lieu of a meeting, the resolutions set forth in this Resolution were
adopted.
NAMES TITLES AUTHORIZED ACTUAL SIGNATURES
----- ------ ---------- -----------------------
Xxx X. Xxxxxx Xx. CEO Y X /s/ Xxx X. Xxxxxx Xx.
----------------------
ACTIONS AUTHORIZED. The authorized person listed above may enter into any
agreements of any nature with Lender, and those agreements will bind the
Corporation. Specifically, but without limitation, the authorized person is
authorized, empowered, and directed to do the following for and on behalf of the
Corporation:
BORROW MONEY. To borrow and incur any indebtedness or credit
accommodations from time to time from Lender, on such terms as may be
agreed upon between the Corporation and Lender, such sum or sums of
money as in their judgment should be borrowed or incurred, including
without limitation, entering into reimbursement agreements related to
letters of credit.
EXECUTE NOTES. To execute and deliver to Lender the promissory note or
notes, or other evidence of the Corporation's credit accommodations, on
Lender's forms, at such rates of interest and on such terms as may be
agreed upon, evidencing the sums of money so borrowed or any of the
Corporation's indebtedness to Lender, and also to execute and deliver
to Lender one or more renewals, extensions, modifications,
refinancings, consolidations, or substitutions for one or more of the
notes, any portion of the notes, or any other evidence of credit
accommodations.
GUARANTY. To guarantee or act as surety for loans or other financial
accommodations to any person or entity from Lender on such guarantee or
surety terms as may be agreed upon with Lender.
PAGE 2
CORPORATE RESOLUTION
(CONTINUED)
GRANT SECURITY. To mortgage, pledge, transfer, endorse, hypothecate, or
otherwise encumber and deliver to Lender any property now or hereafter
belonging to the Corporation or in which the Corporation now or
hereafter may have an interest, including without limitation all real
property and all personal property (tangible or intangible) of the
Corporation, as Security for the payment of any loans or credit
accommodations so obtained, any promissory notes so executed (including
any amendments to or modifications, renewals, and extensions of such
promissory notes), or any other or further indebtedness of the
Corporation, any other person or any other entity owed to Lender at any
time, however the same may be evidenced. Such property may be
mortgaged, pledged, transferred, endorsed, hypothecated, encumbered or
otherwise secured or encumbered at the time such loans are obtained or
such indebtedness is incurred, or at any other time or times, and may
be either in addition to or in lieu of any property theretofore
mortgaged, pledged, transferred, endorsed, hypothecated or encumbered.
EXECUTE SECURITY DOCUMENTS. To execute and deliver to Lender the forms
of mortgage, deed of trust, pledge agreement, hypothecation agreement,
and other security agreements and financing statements which Lender may
require and which shall evidence the terms and conditions under and
pursuant to which such liens and encumbrances, or any of them, are
given; and also to execute and deliver to Lender any other written
instruments, any chattel paper, or any other collateral, of any kind or
nature, which Lender may deem necessary or proper in connection with or
pertaining to the giving of the liens and encumbrances.
SUBORDINATION. To subordinate, in all respects, any and all present and
future indebtedness, obligations, liabilities, claims, rights, and
demands of any kind which may be owed, now or hereafter, from any
person or entity to the Corporation to all present and future
indebtedness, obligations, liabilities, claims, rights, and demands of
any kind which may be owed, now or hereafter, from such person or
entity to Lender ("Subordinated Indebtedness"), together with
subordination by the Corporation of any and all security interests of
any kind, whether now existing or hereafter acquired, securing payment
or performance of the Subordinated Indebtedness; all on such
subordination terms as may be agreed upon between the Corporation's
Officers and Lender and in such amounts as in his or her judgment
should be subordinated.
NEGOTIATE ITEMS. To draw, endorse, and discount with Lender all drafts,
trade acceptances, promissory notes, or other evidences of indebtedness
payable to or belonging to the Corporation or in which the Corporation
may have an interest, and either to receive cash for the same or to
cause such proceeds to be credited to the Corporation's account with
Lender, or to cause such other disposition of the proceeds derived
therefrom as he or she may deem advisable.
FURTHER ACTS. In the case of lines of credit, to designate additional
or alternate individuals as being authorized to request advances under
such lines, and in all cases, to do and perform such other acts and
things, to pay any and all fees and costs, and to execute and deliver
such other documents and agreements as the officer may in his or her
discretion deem reasonably necessary or proper in order to carry into
effect the provisions of this Resolution.
ASSUMED BUSINESS NAMES. The Corporation has filed or recorded all documents or
filings required by law relating to all assumed business names used by the
Corporation. Excluding the name of the Corporation, the following is a complete
list of all assumed business names under which the Corporation does business:
NONE.
NOTICES TO LENDER. The Corporation will promptly notify Lender in writing at
Lender's address shown above (or such other addresses as Lender may designate
from time to time) prior to any (A) change in the Corporation's name; (B) change
in the Corporation's assumed business name(s); (C) change in the management of
the Corporation; (D) change in the authorized signer(s); (E) change in the
Corporation's principal office address; (F) change in the Corporation's state of
organization; (G) conversion of the Corporation to a new or different type of
business entity; or (H) change in any other aspect of the Corporation that
directly or indirectly relates to any agreements between the Corporation and
Lender. No change in the Corporation's name or state of organization will take
effect until after Lender has received notice.
CERTIFICATION CONCERNING OFFICERS AND RESOLUTIONS. The officer named above is
duly elected, appointed, or employed by or for the Corporation, as the case may
be, and occupies the position set opposite his or her respective name, This
Resolution now stands of record on the books of the Corporation, is in full
force and effect, and has not been modified or revoked in any manner whatsoever.
NO CORPORATE SEAL. The Corporation has no corporate seal, and therefore, no seal
is affixed to this Resolution.
PAGE 3
CORPORATE RESOLUTION
(CONTINUED)
CONTINUING VALIDITY. Any and all acts authorized pursuant to this Resolution and
performed prior to the passage of this Resolution are hereby ratified and
approved. This Resolution shall be continuing, shall remain in full force and
effect and Lender may rely on it until written notice of its revocation shall
have been delivered to Lender and receipt acknowledged by Lender in writing at
Lender's address shown above (or such addresses as Lender may designate from
time to time). Any such notice shall not affect any of the Corporation's
agreements of commitments in effect at the time notice is given.
IN TESTIMONY WHEREOF, we have hereunto set our hand and attest that the
signature set opposite the name listed above is his or her genuine signature.
We each have read all the provisions of this Resolution, and we each personally
and on behalf of the Corporation certify that all statements and representations
made in this Resolution are true and correct. This Corporate Resolution is dated
July 21, 2003.
THIS RESOLUTION IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS RESOLUTION IS
AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO
LAW.
CERTIFIED TO AND ATTESTED BY:
By /s/ Xxxxx Xxxxxxxx, Secretary (Seal)
_____________________________
AUTHORIZED SIGNER FOR GENITOPE CORPORATION
NOTE: If the officer signing this Resolution is designated by the foregoing
document as one of the officers authorized to act on the Corporation's behalf,
it is advisable to have this Resolution signed by at least one non-authorized
officer of the Corporation.
[BANK ONE LOGO]
COMMERCIAL GUARANTY
BORROWER: GENITOPE CORPORATION LENDER: BANK ONE, N.A., WITH ITS MAIN
8201 XXXXXXX, XX 00 XXXXXX XX XXXXXXX, XXXXXXXX
XXXXXX, XX 00000 DALLAS PRIVATE CLIENT SERVICES
LPO
0000 XXXX XXXXXX
XXXXXX, XX 00000
GUARANTOR: XXXXXXXX X. XXXXXX, XX.
0000 XXXXXXX, XX 21
XXXXXX, XX 00000
AMOUNT OF GUARANTY. The amount of this Guaranty is Unlimited,
CONTINUING UNLIMITED GUARANTY. For good and valuable consideration, XXXXXXXX X.
XXXXXX, XX. ("Guarantor") absolutely and unconditionally guarantees and promises
to pay to Bank One, N.A., with its main office at Chicago, Illinois ("Lender")
or its order, In legal tender of the United States of America, the Indebtedness
(as that term is defined below) of GENITOPE CORPORATION ("Borrower") to Lender
on the terms and conditions set forth in this Guaranty. Under this Guaranty, the
liability of Guarantor is unlimited and the obligations of Guarantor are
continuing.
INDEBTEDNESS GUARANTEED. The Indebtedness guaranteed by this Guaranty includes
any and all of Borrower's indebtedness to Lender and is used in the most
comprehensive sense and means and includes any and all of Borrower's
liabilities, obligations and debts to Lender, now existing or hereinafter
incurred or created, including, without limitation, all loans, advances,
interest, costs, attorneys' fees, debts, overdraft indebtedness, credit card
indebtedness, lease obligations, other obligations, and liabilities of Borrower,
or any of them, and any present or future judgments against Borrower, or any of
them; and whether any such Indebtedness is voluntarily or involuntarily
incurred, due or not due, absolute or contingent, liquidated or unliquidated,
determined or undetermined; whether Borrower may be liable individually or
jointly with others, or primarily or secondarily, or as guarantor or surety;
whether recovery on the Indebtedness may be or may become barred or
unenforceable against Borrower for any reason whatsoever; and whether the
Indebtedness arises from transactions which may be voidable on account of
Infancy, insanity, ultra xxxxx, or otherwise.
NATURE OF GUARANTY. This Guaranty is a guaranty of payment and not of
collection. Therefore, the Lender can insist that the Guarantor pay immediately,
and the Lender is not required to attempt to collect first from the Borrower,
any collateral, or any other person liable for the Indebtedness.
OTHER GUARANTIES. If Lender presently holds one or more guaranties, or hereafter
receives additional guaranties from Guarantor, the rights of Lender under all
guaranties shall be cumulative. This Guaranty shall not (unless specifically
provided below to the contrary) affect or invalidate any such other guaranties.
The liability of Guarantor will be the aggregate liability of Guarantor under
the terms of this Guaranty and any such other unterminated guaranties.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender
without the necessity of any acceptance by Lender, or any notice to Guarantor or
to Borrower, and will continue in full force until all Indebtedness incurred or
contracted before receipt by Lender of any notice of revocation shall have been
fully and finally paid and satisfied and all of Guarantor's other obligations
under this Guaranty shall have been performed in full. If Guarantor elects to
revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written
notice of revocation must be mailed to Lender, by certified mail, at Lender's
address listed above or such other place as Lender may designate in writing.
Written revocation of this Guaranty will apply only to advances or new
Indebtedness created after actual receipt by Lender of Guarantor's written
revocation and Lender's written acknowledgment of receipt. For this purpose and
without limitation, the term "new Indebtedness" does not include Indebtedness
which at the time of notice of revocation is contingent, unliquidated,
undetermined or not due and which later becomes absolute, liquidated, determined
or due. This Guaranty will continue to bind Guarantor for all Indebtedness
incurred by Borrower or committed by Lender prior to receipt of Guarantor's
written notice of revocation, including any extensions, renewals, substitutions
or modifications of the Indebtedness. All renewals, extensions, substitutions,
and modifications of the Indebtedness granted after Guarantor's revocation, are
contemplated under this Guaranty and, specifically will not be considered to be
new Indebtedness. This Guaranty shall bind Guarantor's estate as to Indebtedness
created both before and after Guarantor's death or incapacity, regardless of
Lender's actual notice of Guarantor's death. Subject to the foregoing,
Guarantor's executor or administrator or other legal representative may
terminate this Guaranty in the same manner in which Guarantor might have
terminated it and with the same effect. Release of any other guarantor or
termination of any
PAGE 2
COMMERCIAL GUARANTY
(CONTINUED)
other guaranty of the Indebtedness shall not affect the liability of Guarantor
under this Guaranty. A revocation Lender receives from any one or more
Guarantors shall not affect the liability of any remaining Guarantors under this
Guaranty. Guarantor shall be liable, jointly and severally, with Borrower and
any other guarantor of all or any part of the Indebtedness, and release of any
other guarantor of all or any part of the Indebtedness, or termination or
revocation of any other guaranty of all or any part of the Indebtedness, shall
not affect the liability of Guarantor under this Guaranty. IT IS ANTICIPATED
THAT FLUCTUATIONS MAY OCCUR IN THE AGGREGATE AMOUNT OF INDEBTEDNESS COVERED BY
THIS GUARANTY, AND GUARANTOR SPECIFICALLY ACKNOWLEDGES AND AGREES THAT
REDUCTIONS IN THE AMOUNT OF INDEBTEDNESS, EVEN TO ZERO DOLLARS ($0.00), PRIOR TO
GUARANTOR'S WRITTEN REVOCATION OF THIS GUARANTY SHALL NOT CONSTITUTE A
TERMINATION OF THIS GUARANTY. THIS GUARANTY IS BINDING UPON GUARANTOR AND
GUARANTOR'S HEIRS, SUCCESSORS AND ASSIGNS SO LONG AS ANY OF THE GUARANTEED
INDEBTEDNESS REMAINS UNPAID AND EVEN THOUGH THE INDEBTEDNESS GUARANTEED MAY FROM
TIME TO TIME BE ZERO DOLLARS ($0.00).
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before
or after any revocation hereof, without notice or demand and without lessening
or otherwise affecting Guarantor's liability under this Guaranty, from time to
time: (A) prior to revocation as set forth above, to make one or more additional
secured or unsecured loans to Borrower, to lease equipment or other goods to
Borrower, or otherwise to extend additional credit to Borrower; (B) to alter,
compromise, renew, extend, accelerate, or otherwise change one or more times the
time for payment or other terms of the Indebtedness or any part of the
Indebtedness, including increases and decreases of the rate of interest on the
Indebtedness; extensions may be repeated and may be for longer than the original
loan term; (C) to take and hold security for the payment of this Guaranty or the
Indebtedness, and exchange, enforce, waive, subordinate, fail or decide not to
perfect, and release any such security, with or without the substitution of new
collateral, and release the Borrower, with or without the assumption of the
Indebtedness by any other entity; (D) to release, substitute, agree not to xxx,
or deal with any one or more of Borrower's sureties, endorsers, or other
guarantors on any terms or in any manner Lender may choose; (E) to determine
how, when and what application of payments and credits shall be made on the
Indebtedness (F) to apply such security and direct the order or manner of sale
thereof, including without limitation, any nonjudicial sale permitted by the
terms of the controlling security agreement or deed of trust, as Lender in its
discretion may determine; (G) to sell, transfer, assign of grant participations
in all or any part of the Indebtedness; and (H) to assign or transfer this
Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lender that (A) no representations or agreements of any kind have been made to
Guarantor which would limit or qualify in any way the terms of this Guaranty;
(B) this Guaranty is executed at Borrower's request and not at the request of
Lender; (C) Guarantor has full power, right and authority to enter into this
Guaranty; (D) the provisions of this Guaranty do not conflict with or result in
a default under any agreement or other instrument binding upon Guarantor and do
not result in a violation of any law, regulation, court decree or order
applicable to Guarantor; (E) Guarantor has not and will not, without the prior
written consent of Lender, sell, lease, assign, encumber, hypothecate, transfer,
or otherwise dispose of all or substantially all of Guarantor's assets, or any
interest therein; (F) upon Lender's request, Guarantor will provide to Lender
financial and credit information in form acceptable to Lender, and all such
financial information which currently has been, and all future financial
information which will be provided to Lender is and will be true and correct in
all material respects and fairly present Guarantor's financial condition as of
the dates the financial information is provided; (G) no material adverse change
has occurred in Guarantor's financial condition since the date of the most
recent financial statements provided to Lender and no event has occurred which
may materially adversely affect Guarantor's' financial condition; (H) no
litigation, claim, investigation, administrative proceeding or similar action
(including those for unpaid taxes) against Guarantor is pending or threatened;
(1) Lender has made no representation to Guarantor as to the creditworthiness of
Borrower; (J) Guarantor has established adequate means of obtaining from
Borrower on a continuing basis information regarding Borrower's financial
condition; and (K) as of the date hereof, and after giving effect to this
Guaranty, (1) Guarantor is and will be solvent, (2) the fair saleable value of
Guarantor's assets exceeds and will continue to exceed Guarantor's liabilities
(both fixed and contingent), (3) Guarantor is and will continue to be able to
pay Guarantor's debts as they mature, and (4) it Guarantor is not an individual,
Guarantor has and will continue to have sufficient capital to carry on its
business and all businesses in which it is about to engage. Guarantor agrees to
keep adequately informed from such means of any facts, events, or circumstances
which might in any way affect Guarantor's risks under this Guaranty, and
Guarantor further agrees that Lender shall have no obligation to disclose to
Guarantor any Information or documents acquired by Lender in the course of its
relationship with Borrower.
GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the
following:
ANNUAL STATEMENTS. As soon as available, but in no event later than
ninety (90) days after the end of each fiscal year, Guarantor's balance
sheet and income statement for the year ended, prepared by Guarantor,
TAX RETURNS. As soon as available, but in no event later than thirty
(30) days after the applicable filing date for the tax reporting period
ended, Federal and other governmental tax returns, prepared by
Guarantor.
PAGE 3
COMMERCIAL GUARANTY
(CONTINUED)
ADDITIONAL REQUIREMENTS. INDEBTEDNESS. Create, incur or assume
additional indebtedness for borrowed money, including capital leases,
or guaranty any indebtedness owing by others, other than (A) current
unsecured trade debt incurred in the ordinary course of business, (B)
indebtedness owing to Lender, (C) borrowings outstanding as of tile
date hereof and disclosed to Lender in writing, and (D) borrowings from
others that do not exceed $ 1 000,000.00 in the aggregate at any time
and any borrowings otherwise approved by Lender in writing.
MINIMUM LIQUIDITY. Maintain at all times, Liquidity in all amount not
less than two times the outstanding principal balance of the
Indebtedness. Tile term "Liquidity" as used in this covenant means
Xxxxxxxx X. Xxxxxx'x unencumbered liquid assets (acceptable. to
Lender), including cash, equity securities registered or having
unlisted trading privileges On a national securities exchange in the
United States, money market accounts, mutual funds, certificates of
deposit maturing within ninety (90) (lays after the (late of
acquisition thereof that are denominated in dollars and issued by banks
having the highest credit rating given by Standard and Poor's or
Xxxxx'x Investors' Services, municipal and corporate bonds rated BBB-
or Baa3 or better by Standard and Poor's or Xxxxx'x Investors'
Services, and any marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by
an agency thereof arid backed by the full faith and credit of the
United States. Liquid assets, for purposes of computing compliance with
this covenant, shall riot include securities held in a qualified
retirement plan, -,in individual retirement account or a trust.
Xxxxxxxx X. Xxxxxx shall provide third-party verification of tile
Liquidity, in form and substance satisfactory to Lender, within thirty
(30) days after tile end of each calendar Month.
All financial reports required to be provided under this Guaranty shall be
prepared in accordance with GAAP, applied oil a consistent basis, arid certified
by Guarantor as being true and correct.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives
any right to require Lender (A) to continue. lending money or to extend other
credit to Borrower; (B) to make any presentment, protest, demand, or notice of
any kind, including notice of any nonpayment of the Indebtedness or of any
nonpayment related to any collateral, or notice of any action or nonaction on
the part of Borrower, Lender, any surety, endorser, or other guarantor in
connection with tile Indebtedness or in connection with the creation of new or
additional loans or obligations; (C) to resort for payment or to proceed
directly or at once against any person, including Borrower or any other
guarantor; (D) to proceed directly against or exhaust any collateral held by
Lender from Borrower, any other guarantor, or any other person; (E) to give
notice of the terms, time, and place of any public or private sale of personal
property security held by Lender from Borrower or to comply with any other
applicable provisions of the Uniform Commercial Code; (F) to pursue any other
remedy within Lender's power: or (G) to commit any act or omission of any kind,
or at any time, with respect to any matter whatsoever.
In addition to the waivers set forth herein, if now or hereafter Borrower is or
shall become insolvent and the Indebtedness shall not at all times until paid be
fully secured by collateral pledged by Borrower, Guarantor hereby forever waives
and gives up in favor of Lender arid Borrower, and Lender's and Borrower's
respective successors, any claim or right to payment Guarantor may now have or
hereafter have or acquire against Borrower, by subrogation or otherwise, so that
at no time shall Guarantor be or become a "creditor" of Borrower within tile
meaning of 11 U.S.C. section 547(b), or any successor provision of the Federal
bankruptcy laws.
The Guarantor agrees that the provisions of this Guaranty are severable, and in
any action or proceeding involving any state corporate law, or any state,
federal or foreign bankruptcy, insolvency, reorganization or other law affecting
the rights of creditors generally, if the obligations of the Guarantor under
this Guaranty would otherwise be held or determined to be avoidable, invalid or
unenforceable on account of the amount of the Guarantor's liability under this
Guaranty, then, notwithstanding any other provision of this Guaranty to the
contrary, the amount of such liability shall, without any further action by the
Guarantor or the Lender, be automatically limited arid reduced to the highest
amount that is valid and enforceable as determined in such action or proceeding.
Guarantor waives all rights of Guarantor under Chapter 34 of the Texas Business
arid Commerce Code. Guarantor also waives any and all rights or defenses arising
by reason of (A) any "one action" or "anti-deficiency" law or any other law
which may prevent Lender from bringing any action, including a claim for
deficiency, against Guarantor, before or after Lender's commencement or
completion of any foreclosure action, either judicially or by exercise of a
power of sale; (B) any election of remedies by Lender which destroys or
otherwise adversely affects Guarantor's subrogation rights or Guarantor's rights
to proceed against Borrower for reimbursement, including without limitation, any
loss of rights Guarantor may suffer by reason of any law limiting, qualifying,
or discharging the Indebtedness; (C) any disability or other defense of
Borrower, of any other guarantor, or of any other person, or by reason of the
cessation of Borrower's liability from tiny Cause whatsoever, other than payment
in full in legal tender, of the Indebtedness; (D) any right to claim discharge
of the Indebtedness oil the basis of unjustified impairment of any collateral
for the
PAGE 4
COMMERCIAL GUARANTY
(CONTINUED)
Indebtedness; (E) any statute of limitations, if at any time any action or suit
brought by Lender against Guarantor is commenced there is outstanding
Indebtedness of Borrower to Lender which is not barred by any applicable statute
of limitations; (F) any right to claim the Guaranty is conditioned on anyone
else executing this or any other guaranty; or (G) any defenses given to
guarantors at law or in equity other than actual payment and performance of tile
Indebtedness. If payment is made by Borrower, whether voluntarily or otherwise,
or by any third party, oil the Indebtedness arid thereafter Lender is forced to
remit the amount of that payment to Borrower's trustee in bankruptcy or to any
similar person under any federal or state bankruptcy law or law for the relief
of debtors, the Indebtedness shall be considered unpaid for tile purpose of the
enforcement of this Guaranty.
Guarantor further waives and agrees not to assert or claim at any time, any
deductions to the amount guaranteed under this Guaranty for any claim of setoff,
counterclaim, counter demand, recoupment or similar right, whether such claim,
demand or right may be asserted by the Borrower, the Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees
that each of the waivers set forth above is made with Guarantor's full knowledge
of its significance and consequences and that, under the circumstances, the
waivers are reasonable are not contrary to public policy or law. If any such
waiver is determined to be contrary to any applicable law or public policy, such
waiver shall be effective only to the extent permitted by law or public policy.
RIGHT OF SETOFF. Guarantor grants to Lender a security interest in, as well as a
right of setoff against, and hereby assigns, conveys, delivers, pledges and
transfers to Lender, as security for repayment of the Indebtedness, all
Guarantor's right, title and interest in and to all Guarantor's accounts
(whether checking, savings, or some other account) with Lender or any subsidiary
or affiliate of BANK ONE CORPORATION (each hereinafter referred to as a "Lender
Affiliate") and all other obligations at any time owing by Lender or any Lender
Affiliate to Guarantor. This includes all accounts Guarantor holds jointly with
someone else and all accounts Guarantor may open in the future. However, this
does not include any XXX or Xxxxx accounts, or any trust accounts for which tile
grant of a security interest would be prohibited by law. Guarantor authorize
Lender, without prior notice to Guarantor and irrespective of (i) whether or not
Lender has made any demand under this Guarantor on the Related Documents or (ii)
whether such Indebtedness is contingent, matured or unmatured, to the extent
permitted by law, to collect, charge and/or setoff all sums owing on the,
Indebtedness against any and all such accounts and other obligations, and, at
Lender's option, to administratively freeze or direct a Lender Affiliate to
administratively freeze all such accounts and other obligations to allow Lender
to protect Lender's security interest, collection, charge and setoff rights
provided in this paragraph.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the
Indebtedness of Borrower to Lender, whether now existing or hereafter created,
shall be superior to any claim that Guarantor may now have or hereafter acquire
against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby
expressly subordinates any claim Guarantor may have, against Borrower, upon any
account whatsoever, to any claim that Lender may now or hereafter have against
Borrower. In the event of insolvency and consequent liquidation of the assets of
Borrower, through bankruptcy, by an assignment for the benefit of creditors, by
voluntary liquidation, or otherwise, the assets of Borrower applicable to the
payment of tile claims of both Lender and Guarantor shall be paid to Lender and
shall be first applied by Lender to the Indebtedness of Borrower to Lender.
Guarantor does hereby assign to Lender all claims which it may have or acquire
against Borrower or against any assignee or trustee in bankruptcy of Borrower;
provided however, that such assignment shall be effective only for the purpose
(it assuring to Lender full payment in legal tender of the Indebtedness. If
Lender so requests, any notes or credit agreements now or hereafter evidencing
any debts or obligations of Borrower to Guarantor shall be marked with a legend
that the same are subject to this Guaranty and shall be delivered to Lender.
Guarantor agrees, and Lender is hereby authorized, in the name of Guarantor,
from time to time to execute arid file financing statements and continuation
statements and to execute such other documents and to take, such other actions
as Lender deems necessary or appropriate to perfect, preserve and enforce its
rights under this Guaranty.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Guaranty:
AMENDMENTS. This Guaranty, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Guaranty. No alteration of or amendment
to this Guaranty shall be effective unless given in writing and signed
by the party or parties sought to be charged or bound fly the
alteration or amendment.
ATTORNEYS' FEES; EXPENSES. Guarantor agrees to pay upon demand and all
of Lender's costs and expenses, including Lender's reasonable
attorneys' fees and Lender's legal expenses, incurred in connection
with the enforcement of this Guaranty. Lender may hire or pay someone
else to help enforce this Guaranty, and Guarantor shall pay the costs
and expenses of such enforcement. Costs and expenses include Lender's
reasonable attorneys'
PAGE 5
COMMERCIAL GUARANTY
(CONTINUED)
fees and local expenses whether or not there is a lawsuit, including
Lender's reasonable attorneys' fees and legal expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay
or injunction), appeals, and any anticipated post-judgment collection
services. Guarantor also shall pay all court costs and such additional
fees as may be directed by the court.
CAPTION HEADINGS. Caption headings in this Guaranty are for convenience
purposes only and are not to be used to interpret or define the
provisions of this Guaranty.
GOVERNING LAW. THIS GUARANTY WILL BE GOVERNED BY, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF
TEXAS. THIS GUARANTY HAS BEEN ACCEPTED BY LENDER IN THE STATE OF TEXAS.
CHOICE OF VENUE. If there is a lawsuit, and if the transaction
evidenced by this Guaranty occurred in Dallas County, Guarantor agrees
upon Lender's request to submit to the jurisdiction of the courts of
Dallas County, State of Texas.
INTEGRATION. Guarantor further agrees that Guarantor has read and fully
understands the terms of this Guaranty; Guarantor has had the
opportunity to be advised by Guarantor's attorney with respect to this
Guaranty; the Guaranty fully reflects Guarantor's intentions and parol
evidence is not required to interpret the terms of this Guaranty.
Guarantor hereby indemnifies and holds Lender harmless from all losses,
claims, damages, and costs (including Lender's attorneys' fees)
suffered or incurred by Lender as a result of any breach by Guarantor
of the warranties, representations and agreements of this paragraph.
INTERPRETATION. In all cases where there is more than one Borrower or
Guarantor, then all words used in this Guaranty in the singular shall
be deemed to have been used in the plural where the context and
construction so require; and where there is more than one Borrower
named in this Guaranty or when this Guaranty is executed by more than
one Guarantor, the words "Borrower" and "Guarantor" respectively shall
mean all and any one or more of them. The words "Guarantor,"
"Borrower," and "Lender" include the heirs, successors, assigns, and
transferees of each of them. If a court finds that any provision of
this Guaranty is not valid or should not be enforced, that fact by
itself will not mean that the rest of this Guaranty will not be valid
or enforced. Therefore, a court will enforce the rest of the provisions
of this Guaranty even if a provision of this Guaranty may be found to
be invalid or unenforceable. If any one or more of Borrower or
Guarantor are corporations, partnerships, limited liability companies,
or similar entities, it is not necessary for Lender to inquire into the
powers of Borrower or Guarantor or of the officers, directors,
partners, managers, or other agents acting of purporting to act on
their behalf, and any Loan indebtedness made or created in reliance
upon the professed exercise of such powers shall be guaranteed under
this Guaranty.
INFORMATION WAIVER. Lender may provide, without any limitation
whatsoever, to any one or more purchasers of any Indebtedness,
potential purchasers of any Indebtedness, or affiliates of BANK ONE
CORPORATION, any information or knowledge Lender may have about
Guarantor or about any matter relating to the Indebtedness, and
Guarantor hereby waives any right to privacy Guarantor may have with
respect to such matters.
NOTICES. Any notice required to be given under this Guaranty shall be
given in writing, and, except for revocation notices by Guarantor,
shall be effective when actually delivered, when actually received by
telefacsimile (unless otherwise required by law), when deposited with a
nationally recognized overnight courier, or, if mailed, when deposited
in the United States mail, as first class, certified or registered mail
postage prepaid, directed to the addresses shown near the beginning of
this Guaranty. All revocation notices by Guarantor shall be in writing
and shall be effective upon delivery to Lender as provided in the
section of this Guaranty entitled "DURATION OF GUARANTY." Any party may
change its address for notices under this Guaranty by giving formal
written notice to the other parties, specifying that the purpose of the
notice is to change the party's address. For notice purposes, Guarantor
agrees to keep Lender informed at all times of Guarantor's current
address. Unless otherwise provided or required by law, it there is more
than one Guarantor, any notice given by Lender to any Guarantor is
deemed to be notice given to all Guarantors.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any
rights under this Guaranty unless such waiver is given in writing and
signed by Lender. No delay or omission on the part of Lender in
exercising any right shall operate as a waiver of such right or any
other right. A waiver by Lender of a provision of this Guaranty shall
not prejudice or constitute a waiver of Lender's right otherwise to
demand strict compliance with that provision or
PAGE 6
COMMERCIAL GUARANTY
(CONTINUED)
any other provision of this Guaranty. No prior waiver by Lender, nor
any course of dealing between Lender and Guarantor, shall constitute a
waiver of any of Lender's rights or of any of Guarantor's obligations
as to any future transactions. Whenever the consent of Lender is
required under this Guaranty, the granting of such consent by Lender in
any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent
may be granted or withheld in the sole discretion of Lender.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this
Guaranty on transfer of Guarantor's interest, this Guaranty shall be
binding upon and inure to the benefit of the parties, their successors
and assigns.
ARBITRATION. Undersigned and Lender agree that all disputes, claims and
controversies between them whether individual, joint, or class in nature,
arising from this document or otherwise, including without limitation contract
and tort disputes, shall be arbitrated pursuant to the Rules of the American
Arbitration Association in effect at the time the claim is filed, upon request
of either party. No act to take or dispose of any Collateral or Property (as
defined herein or in any Related Document) securing this document shall
constitute a waiver of this arbitration agreement or be prohibited by this
arbitration agreement. This includes, without limitation, obtaining injunctive
relief or a temporary restraining order; invoking a power of sale under any deed
of trust or mortgage; obtaining a writ of attachment or imposition of a
receiver; or exercising any rights relating to personal property, including
taking or disposing of such property with or without judicial process pursuant
to applicable law. Any disputes, claims, or controversies concerning the
lawfulness or reasonableness of any act, or exercise of any right, concerning
any Collateral or Property securing this document, including any claim to
rescind, reform, or otherwise modify any agreement relating to the Collateral or
Property securing this document, shall also be arbitrated, provided however that
no arbitrator shall have the right or the power to enjoin or restrain any act of
any party. Judgment upon any award rendered by any arbitrator may be entered in
any court having jurisdiction. Nothing in this document shall preclude any party
from seeking equitable relief from a court of competent jurisdiction. The
statute of limitations, estoppel, waiver, laches, and similar doctrines which
would otherwise be applicable in an action brought by a party shall be
applicable in any arbitration proceeding, and the commencement of an arbitration
proceeding shall be deemed the commencement of an action for these purposes. The
Federal Arbitration Act shall apply to the construction, interpretation, and
enforcement of this arbitration provision.
JURY WAIVER. THE UNDERSIGNED AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT
OR OTHERWISE) BETWEEN OR AMONG THE UNDERSIGNED AND LENDER ARISING OUT OF OR IN
ANY WAY RELATED TO THIS DOCUMENT, THE RELATED DOCUMENTS, OR ANY RELATIONSHIP
BETWEEN OR AMONG THE UNDERSIGNED AND LENDER. THIS PROVISION IS A MATERIAL
INDUCEMENT TO LENDER TO PROVIDE THE FINANCING EVIDENCED BY THIS DOCUMENT AND THE
RELATED DOCUMENTS.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Guaranty. Unless specifically stated to the contrary,
all references to dollar amounts shall mean amounts in lawful money of the
United States of America. Words and terms used in the singular shall include the
plural, and the plural shall include the singular, as the context may require.
Words and terms not otherwise defined in this Guaranty shall have the meanings
attributed to such terms in the Uniform Commercial Code:
BORROWER. The word "Borrower" means GENITOPE CORPORATION, and all other
persons and entities signing the Note in whatever capacity.
GAAP. The word "GAAP" means generally accepted accounting principles.
GUARANTOR. The word "Guarantor" means each and every person or entity
signing this Guaranty, including without limitation XXXXXXXX X. XXXXXX,
XX.
GUARANTY. The word "Guaranty" means this guaranty from Guarantor to
Lender.
INDEBTEDNESS. The word "Indebtedness" means Borrower's indebtedness to
Lender as more particularly described in this Guaranty.
LENDER. The word "Lender" means Bank One, N.A., with its main office at
Chicago, Illinois, its successors and assigns.
PAGE 7
COMMERCIAL GUARANTY
(CONTINUED)
RELATED DOCUMENTS. The words "Related Documents" mean all promissory
notes, credit agreements, loan agreements, environmental agreements,
guaranties, security agreements, mortgages, deeds of trust, security
deeds, collateral mortgages, and all other instruments, agreements and
documents, whether now existing or hereafter arising, executed in
connection with the Indebtedness.
GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS COMMERCIAL
GUARANTY AND GUARANTOR AGREES TO ITS TERMS. THIS COMMERCIAL GUARANTY IS DATED
JULY 28, 2003.
GUARANTOR:
X /s/ Xxxxxxxx X. Xxxxxx Xx.
__________________________________________
XXXXXXXX X. XXXXXX, XX., INDIVIDUALLY
NOTICE OF FINAL AGREEMENT
BORROWER: GENITOPE CORPORATION LENDER: BANK ONE, N.A., WITH ITS MAIN
8201 XXXXXXX, XX 00 XXXXXX XX XXXXXXX, XXXXXXXX
XXXXXX, XX 00000 DALLAS PRIVATE CLIENT
SERVICES LPO
0000 XXXX XXXXXX
XXXXXX, XX 00000
THE WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
As used in this Notice, the following terms have the following meanings:
LOAN. The term "Loan" means the following described loan: a non-precomputed
Variable Rate Nondisclosable Revolving Line of Credit Loan to a Corporation
for $5,000,000.00 due on December 6, 2003. A margin of 0.500% is added to
the index rate. Lender will tell the Borrower the current index rate upon
Borrower's request.
LOAN AGREEMENT. The term "Loan Agreement" means one or more promises,
promissory notes, agreements, undertakings, security agreements, deeds of
trust or other documents, or commitments, or any combination of those
actions or documents, relating to the Loan, including without limitation
the following:
LOAN DOCUMENTS
Corporate Resolution: GENITOPE CORPORATION Business Loan Agreement
Promissory Note TX Commercial Guaranty: XXXXXXXX X. XXXXXX, XX.
Disbursement Request and Authorization Notice of Final Agreement
Authorization Agreement for Auto Debit
PARTIES. The term "Parties" means Bank One, N.A., with its main office at
Chicago, Illinois and any and all entities or individuals who are obligated to
repay the loan or have pledged property as security for the Loan, including
without limitation the following:
BORROWER: GENITOPE CORPORATION
GUARANTOR 1: XXXXXXXX X. XXXXXX, XX.
THIS NOTICE OF FINAL AGREEMENT IS GIVEN BY BANK ONE, N.A., WITH ITS MAIN OFFICE
AT CHICAGO, ILLINOIS PURSUANT TO SECTION 26.02 OF THE TEXAS BUSINESS AND
COMMERCE CODE. EACH PARTY WHO SIGNS BELOW, OTHER THAN BANK ONE, N.A., WITH ITS
MAIN OFFICE AT CHICAGO, ILLINOIS, ACKNOWLEDGES, REPRESENTS, AND WARRANTS TO BANK
ONE, N.A., WITH ITS MAIN OFFICE AT CHICAGO, ILLINOIS THAT IT HAS RECEIVED, READ
AND UNDERSTOOD THIS NOTICE OF FINAL AGREEMENT. THIS NOTICE IS DATED JULY 28,
2003.
BORROWER:
GENITOPE CORPORATION
BY: /s/ Xxx X. Xxxxxx, Xx.
_____________________________________
GUARANTOR:
X /s/ Xxxxxxxx X. Xxxxxx, Xx.
_____________________________________
XXXXXXXX X. XXXXXX, XX., INDIVIDUALLY
LENDER:
BANK ONE, N.A., WITH ITS MAIN OFFICE AT CHICAGO, ILLINOIS
X /s/ Xxxxx X. Xxxxxx
_______________________________________
AUTHORIZED SIGNER
Exhibit 10.18
(BANK ONE LOGO)
BUSINESS LOAN AGREEMENT
BORROWER: GENITOPE CORPORATION LENDER: BANK ONE, N.A., WITH ITS MAIN OFFICE AT
8201 XXXXXXX, XX 21 CHICAGO,ILLINOIS
XXXXXX, XX 00000 DALLAS PRIVATE CLIENT SERVICES LPO
0000 XXXX XXXXXX
XXXXXX,XX 00000
THIS BUSINESS LOAN AGREEMENT WITH EFFECT AS OF THE DATE SET FORTH BELOW IS MADE
AND EXECUTED BETWEEN GENITOPE CORPORATION ("BORROWER") AND BANK ONE, N.A., WITH
ITS MAIN OFFICE AT CHICAGO, ILLINOIS ("LENDER") ON THE FOLLOWING TERMS AND
CONDITIONS: Borrower has received or has applied to receive a commercial loan or
loans or other financial accommodations from Lender. All such loans and
financial accommodations from Lender to Borrower whether now or hereafter
existing, and however evidenced, including any and all subsequent amendments,
additions, substitutions, renewals and refinancings thereof, except as otherwise
may be expressly agreed by and between Borrower and Lender in any Exhibit which
may be attached to this Agreement or any written document between Borrower and
Lender excluding such document from (this Agreement, are referred to in this
Agreement as the "Loan" and collectively as the "Loans". Borrower understands
and agrees that: (A) in granting, renewing, or extending any Loan, Lender is
relying upon Borrower's representations, warranties, and agreements as set forth
in this Agreement, and (B) all such Loans shall be and remain subject to the
terms and conditions of this Agreement.
CONDITIONS PRECEDENT. This Agreement and Lender's obligation to make the initial
Advance shall be subject to the fulfillment to Lender's satisfaction of all of
the conditions set forth in this Agreement and in the Related Documents, which
conditions include, without limitation, the following:
RELATED DOCUMENTS. Borrower shall provide to Lender the Note and all of
the Related Documents, all in form and substance satisfactory to Lender
and Lender's counsel.
BORROWER'S AUTHORIZATION. Borrower shall have provided in form and
substance satisfactory to Lender properly certified resolutions, duly
authorizing the execution and delivery of this Agreement, the Note and the
Related Documents. In addition, Borrower shall have provided such other
resolutions, authorizations, documents and instruments as Lender or its
counsel, may require.
PAYMENT OF FEES AND EXPENSES. Borrower shall have paid to Lender all fees,
charges, and other expenses which are then due and payable as specified in
this Agreement or any Related Document.
REPRESENTATIONS AND WARRANTIES. The representations and warranties set
forth in this Agreement, in the Related Documents, and in any document or
certificate delivered to Lender under this Agreement are true and correct.
NO EVENT OF DEFAULT. There shall not exist at the time of any Advance a
condition which would constitute an Event of Default under this Agreement
or under any Related Document.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to, and
covenants and agrees with, Lender that, as of the date of this Agreement, as of
the date of each Advance, as of the date of any renewal, extension or
modification, and at all times any Indebtedness exists:
ORGANIZATION. Borrower is a corporation for profit which is, and at all
times shall be, duly organized, validly existing, and in good standing
under and by virtue of the laws of the State of Delaware. Borrower is duly
authorized to transact business in all other states in which Borrower is
doing business, having obtained all necessary filings, governmental
licenses and approvals for each state in which Borrower is doing business.
Specifically, Borrower is, and at all times shall be, duly qualified as a
foreign corporation in all states in which the failure to so qualify would
have a material adverse effect on its business or financial condition.
Borrower has the full power and authority to own its properties and to
transact the business in which it is presently engaged or presently
proposes to engage. Borrower maintains an office at 0000 XXXXXXX, XX 00,
XXXXXX, XX 00000. Unless Borrower has designated otherwise in writing, the
principal office is the office at which Borrower keeps its books and
records including its
BUSINESS LOAN AGREEMENT
(CONTINUED)
PAGE 2
records concerning the Collateral. Borrower will notify Lender prior to
any change in the location of Borrower's state of organization or any
change in Borrower's name. Borrower shall do all things necessary to
preserve and to keep in full force and effect its existence, rights and
privileges, and shall comply with all regulations, rules, ordinances,
statutes, orders and decrees of any governmental or quasi-governmental
authority or court applicable to Borrower and Borrower's business
activities.
AUTHORIZATION. Borrower's execution, delivery, and performance of this
Agreement and all the Related Documents have been duly authorized by all
necessary action by Borrower and do not conflict with, result in a
violation of, or constitute a default under (1) any provision of
Borrower's articles of incorporation or organization, or bylaws, or any
agreement or other instrument binding upon Borrower or (2) any law,
governmental regulation, court decree, or order applicable to Borrower or
to Borrower's properties. Borrower has the power and authority to execute
and deliver the Note and the Related Documents and, if applicable, to
grant Collateral as security for the Indebtedness.
FINANCIAL INFORMATION. Each of Borrower's financial statements supplied to
Lender truly and completely disclosed Borrower's financial condition as of
the date of the statement, and there has been no material adverse change
in Borrower's financial condition subsequent to the date of the most
recent financial statement supplied to Lender. Borrower has no material
contingent obligations except as disclosed in such financial statements.
LEGAL EFFECT. This Agreement constitutes, and any instrument or agreement
Borrower is required to give under this Agreement when delivered will
constitute legal, valid, and binding obligations of Borrower enforceable
against Borrower in accordance with their respective terms.
PROPERTIES. Except as contemplated by this Agreement or as previously
disclosed in Borrower's financial statements or in writing to Lender and
as accepted by Lender, and except for property tax liens for taxes not
presently due and payable, Borrower owns and has good title to all of
Borrower's properties free and clear of all Security Interests, and has
not executed any security documents or financing statements relating to
such properties. All of Borrower's properties are titled in Borrower's
legal name, and Borrower has not used or filed a financing statement under
any other name for at least the last five (5) years.
ENVIRONMENTAL MATTERS AND INDEMNITY. Except as disclosed to Lender in
writing prior to the execution of this Agreement, Borrower represents and
warrants that: (1) During the period of ownership, use or control of the
Assets (which term, for all purposes of this section, shall include all
plants, sites and facilities presently or formerly owned, operated,
controlled or leased by the Borrower or any Grantor), (a) there has been
no violation of any Environmental Laws, and (b) there has been no use,
generation, manufacture, storage, treatment, refinement, transportation,
disposal, release or threatened release of any Hazardous Substance by any
person on, under, about or from any of the Assets; (2) Borrower has no
knowledge of, or reason to believe that, during the period prior to the
ownership, use or control of any of the Assets (as defined in clause (1)
above) by Borrower or any Grantor, there has been (a) any breach or
violation of any Environmental laws by any prior owners or occupants of
any of the Assets, or (b) any use, generation, manufacture, storage,
treatment, refinement, transportation, disposal, release or threatened
release of any Hazardous Substance by any person on, under, about or from
any of the Assets; and (3) neither Borrower nor any Grantor have received
any notice of, nor have any knowledge of, any actual or threatened claim,
legal proceeding or investigation regarding Borrower, any Grantor or any
of the Assets (as defined in clause (1) above) related to Environmental
Laws. The representations and warranties, contained herein are based on
Borrower's due diligence in investigating all of the Assets for Hazardous
Substances.
Borrower hereby (1) releases and waives any future claims against any
Indemnified Party for indemnity or contribution in the event Borrower
becomes liable for cleanup or other costs under any Environmental Laws,
and (2) agrees to defend, indemnify and hold harmless each Indemnified
Party against any and all obligations, actions, judgments, suits, claims,
losses, liabilities, damages, penalties, disbursements, costs and expenses
(including, without limitation, reasonable attorneys' and consultants'
fees), of any kind or nature, which any Indemnified Party may directly or
indirectly sustain or suffer resulting from, relating to, arising out of
or arising as a consequence of (a) any breach of this section or the
"Environmental Compliance and Reports" section below, (b) any use,
generation, manufacture, storage, treatment, refinement, transportation,
disposal, release, or threatened release of any Hazardous Substance on,
under, about or from any of the Assets, whether occurring during or prior
to Borrower's or any Grantor's ownership of any of the Assets, and whether
or not the same was or should have been known to Borrower, (c) any
investigatory or remedial action involving any of the Assets, the
operations conducted at any of the Assets or any other operations of
Borrower, any Grantor or any occupant at any of the Assets that is
BUSINESS LOAN AGREEMENT
(CONTINUED)
PAGE 3
required by any Environmental Laws and (d) the contamination of any of the
Assets by any Hazardous Substances, by any means whatsoever (including,
without limitation, any migration of any Hazardous Substances onto any of
the Assets, present or future). BORROWER SHALL INDEMNIFY THE RESPECTIVE
INDEMNIFIED PARTY REGARDLESS OF WHETHER THE ACT, OMISSION, FACTS,
CIRCUMSTANCE OR CONDITIONS GIVING RISE TO SUCH INDEMNIFICATION WERE CAUSED
IN WHOLE OR IN PART BY THE RESPECTIVE INDEMNIFIED PARTY'S SIMPLE (BUT NOT
GROSS) NEGLIGENCE. The provisions of this section, including the
obligation to indemnify, shall survive the payment of the Indebtedness and
the termination, expiration or satisfaction of this Agreement and shall
not be affected by Lender's or any other Indemnified Party's acquisition
of any interest in any of the Assets, whether by foreclosure or otherwise.
LITIGATION AND CLAIMS. No litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) against
Borrower is pending or threatened, and no other event has occurred which
may materially adversely affect Borrower's financial condition or
properties, other than litigation, claims, or other events, if any, that
have been disclosed to and acknowledged by Lender in writing.
USE OF LOAN PROCEEDS. No portion of any Advance or Loan shall be used
directly or indirectly to purchase ineligible securities, as defined by
applicable regulations of the Federal Reserve Board, underwritten by any
affiliate BANK ONE CORPORATION during the underwriting period and for 30
days thereafter.
TAXES. To the best of Borrower's knowledge, all of Borrower's tax returns
and reports that are or were required to be filed, have been filed, and
all taxes, assessments and other governmental charges have been paid in
full, except those presently being or to be contested by Borrower in good
faith in the ordinary course of business and for which adequate reserves
have been provided.
LIEN PRIORITY. Unless otherwise previously disclosed to Lender in writing,
Borrower has not entered into or granted any Security Agreements, or
permitted the filing or attachment of any Security Interests on or
affecting any of the Collateral directly or indirectly securing repayment
of Borrower's Indebtedness.
BINDING EFFECT. This Agreement, all Security Agreements (if any), and all
Related Documents are binding upon the signers thereof, as well as upon
their successors, representatives and assigns, and are legally enforceable
in accordance with their respective terms.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, so long
as this Agreement remains in effect, Borrower will:
NOTICES OF CLAIMS AND LITIGATION. Promptly inform Lender in writing of (1)
all material adverse changes in Borrower's financial condition, and (2)
all existing and all threatened litigation, claims, investigations,
administrative proceedings or similar actions affecting Borrower or any
Guarantor which could materially affect the financial condition of
Borrower or the financial condition of any Guarantor.
FINANCIAL RECORDS. Maintain its books and records in accordance with GAAP,
applied on a consistent basis, and permit Lender to examine and audit
Borrower's books and records at all reasonable times.
FINANCIAL STATEMENTS. Furnish Lender with the following:
ADDITIONAL REQUIREMENTS. Interim Financial Statements. Within thirty
(30) days of each fiscal half year, the interim financial statements
of Rainbow Trading Systems and Rainbow Trading Corp, including a
balance sheet, income statement and statement of changes in
financial position, for the period ended, prepared and certified,
subject to year end review adjustments, as correct to the best
knowledge and belief by its chief financial officer or other person
reasonably acceptable to Lender.
All financial reports required to be provided under this Agreement shall
be prepared in accordance with GAAP, applied on a consistent basis, and
certified by Borrower as being true and correct.
ADDITIONAL INFORMATION. Furnish such additional information and
statements, as Lender may request from time to time.
BUSINESS LOAN AGREEMENT
(CONTINUED)
PAGE 4
INSURANCE. Maintain fire and other risk insurance, public liability
insurance, and such other insurance as Lender may require with respect to
Borrower's properties and operations, in form, amounts, and coverages
reasonably acceptable to Lender and by insurance companies authorized to
transact business in Texas. BORROWER MAY FURNISH THE INSURANCE REQUIRED BY
THIS AGREEMENT WHETHER THROUGH EXISTING POLICIES OWNED OR CONTROLLED BY
BORROWER OR THROUGH EQUIVALENT COVERAGE FROM ANY INSURANCE COMPANY
AUTHORIZED TO TRANSACT BUSINESS IN TEXAS. Borrower, upon request of
Lender, will deliver to Lender from time to time the policies or
certificates of insurance in form satisfactory to Lender, including
stipulations that coverages will not be cancelled or diminished without at
least thirty (30) days prior written notice to Lender. Each insurance
policy also shall include an endorsement providing that coverage in favor
of Lender will not be impaired in any way by any act, omission or default
of Borrower or any other person. In connection with all policies covering
assets in which Lender holds or is offered a security interest for the
Loans, Borrower will provide Lender with such lender's loss payable or
other endorsements as Lender may require.
INSURANCE REPORTS. Furnish to Lender, upon request of Lender, reports on
each existing insurance policy showing such information as Lender may
reasonably request, including without limitation the following: (1) the
name of the insurer; (2) the risks insured; (3) the amount of the policy;
(4) the properties insured; (5) the then current property values on the
basis of which insurance has been obtained, and the manner of determining
those values; and (6) the expiration date of the policy. In addition, upon
request of Lender (however not more often then annually), Borrower will
have an independent appraiser satisfactory to Lender determine, as
applicable, the actual cash value or replacement cost of any Collateral.
The cost of such appraisal shall be paid by Borrower.
GUARANTIES. Prior to disbursement of any Loan proceeds, furnish executed
guaranties of the Loans in favor of Lender, executed by the guarantor
named below, on Lender's forms, and in the amount and under the conditions
set forth in those guaranties.
NAME OF GUARANTOR AMOUNT
----------------- ------
XXXXXXXX X. XXXXXX, XX. UNLIMITED
OTHER AGREEMENTS. Comply with all terms and conditions of all other
agreements, whether now or hereafter existing, between Borrower and any
other party and notify Lender immediately in writing of any default in
connection with any other such agreements.
LOAN PROCEEDS. Use all Loan proceeds solely for Borrower's business
operations, unless specifically consented to the contrary by Lender in
writing.
TAXES, CHARGES AND LIENS. Pay and discharge when due all of its
indebtedness and obligations, including without limitation all
assessments, taxes, governmental charges, levies and liens, of every kind
and nature, imposed upon Borrower or its properties, income, or profits,
prior to the date on which penalties would attach, and all lawful claims
that, if unpaid, might become a lien or charge upon any of Borrower's
properties, income, or profits.
PERFORMANCE. Perform and comply, in a timely manner, with all terms,
conditions, and provisions set forth in this Agreement, in the Related
Documents, and in all other instruments and agreements between Borrower
and Lender. Borrower shall notify Lender immediately in writing of any
default in connection with any agreement.
OPERATIONS. Maintain executive and management personnel with substantially
the same qualifications and experience as the present executive and
management personnel; provide written notice to Lender of any change in
executive and management personnel; conduct its business affairs in a
reasonable and prudent manner.
ENVIRONMENTAL STUDIES. Promptly conduct and complete, at Borrower's
expense, all such investigations, studies, samplings and testings as may
be requested by Lender or any governmental authority relative to any
substance, or any waste or by-product of any substance defined as toxic or
a hazardous substance under applicable federal, state, or local law, rule,
regulation, order or directive, at or affecting any property or any
facility owned, leased or used by Borrower.
BUSINESS LOAN AGREEMENT
(CONTINUED)
PAGE 5
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Comply with all laws,
ordinances, and regulations, now or hereafter in effect, of all
governmental authorities applicable to the conduct of Borrower's
properties, businesses and operations, and to the use or occupancy of the
Collateral, including without limitation, the Americans With Disabilities
Act. Borrower may contest in good faith any such law, ordinance, or
regulation and withhold compliance during any proceeding, including
appropriate appeals, so long as Borrower has notified Lender in writing
prior to doing so and so long as, in Lender's sole opinion, Lender's
interests in the Collateral are not jeopardized. Lender may require
Borrower to post adequate security or a surety bond, reasonably
satisfactory to Lender, to protect Lender's interest.
INSPECTION. Permit employees or agents of Lender at any reasonable time to
inspect any and all Collateral for the Loan or Loans and Borrower's other
Assets and to examine or audit Borrower's books, accounts, and records and
to make copies and memoranda of Borrower's books, accounts, and records.
If Borrower now or at any time hereafter maintains any records (including
without limitation computer generated records and computer software
programs for the generation of such records) in the possession of a third
party, Borrower, upon request of Lender, shall notify such party to permit
Lender free access to such records at all reasonable times and to provide
Lender with copies of any records it may request, all at Borrower's
expense.
COMPLIANCE CERTIFICATES. Unless waived in writing by Lender, provide
Lender at least annually, with a certificate executed by Borrower's chief
financial officer, or other officer or person acceptable to Lender,
certifying that the representations and warranties set forth in this
Agreement are true and correct as of the date of the certificate and
further certifying that, as of the date of the certificate, no Event of
Default exists under this Agreement.
ENVIRONMENTAL COMPLIANCE AND REPORTS. Neither Borrower, nor any Grantor,
tenant, contractor, agent or other authorized user of any of the Assets
shall use, generate, manufacture, store, treat, refine, transport, dispose
of, or release any Hazardous Substance on, under, about or from any of the
Assets. Borrower will at all times comply, and will cause any Grantor to
comply, with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject including,
without limitation, all Environmental Laws. Borrower will furnish to
Lender as soon as possible and in any event within 10 days after receipt
by the Borrower or any Grantor, a copy of (a) any notice or claim to the
effect that Borrower or any Grantor is or may be liable to any person as a
result of the release by Borrower or any Grantor or any other person of
any Hazardous Substance into the environment and (b) any notice alleging
any violation of any Environmental Law by Borrower or any Grantor.
Borrower will permit, and will cause any Grantor to permit, Lender, by its
representatives and agents, to enter upon and test any of the Assets, and
inspect any of Borrower's or any Grantor's books and records, all at such
reasonable times and intervals as Lender may designate, in order to
determine Borrower's and any Grantor's compliance with both this section
and the "Environmental Matters and Indemnify" section above. Any such
inspections or tests made by Lender shall be at Borrower's expense and for
Lender's purposes only and shall not be construed to create any
responsibility or liability of the part of Lender to Borrower, any
Grantor, or any other person.
CHANGE OF LOCATION. Immediately notify Lender in writing of any additions
to or changes in location of Borrower's businesses, principal office, or
Collateral, other than in the ordinary Course of business.
TITLE TO ASSETS AND PROPERTY. Maintain good and marketable title to all of
Borrower's Assets and property.
OTHER INFORMATION. From time to time Borrower will provide Lender with
such other information as Lender may reasonably request.
ADDITIONAL ASSURANCES. Make, execute and deliver to Lender such promissory
notes, mortgages, deeds of trust, security agreements, assignments,
financing statements, instruments, documents and other agreements as
Lender or its attorneys may reasonably request to evidence and secure the
Loans and to perfect all Security Interests.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Borrower fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Borrower's failure to discharge or pay when due any amounts
Borrower is required to discharge or pay under this Agreement or any Related
Documents, Lender on Borrower's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on any Collateral and paying all
costs for insuring, maintaining and preserving any Collateral. All such
expenditures paid by Lender for such purposes will then bear interest at the
Note rate from the date paid by Lender to the date of repayment by Borrower.
BUSINESS LOAN AGREEMENT
(CONTINUED)
PAGE 6
To the extent permitted by applicable law, all such expenses will become a part
of the Indebtedness and, at Lender's option, will (A) be payable on demand, (B)
be added to the balance of the Note and be apportioned among and be payable with
any installment payments to become due during either (1) the term of any
applicable insurance policy, (2) the remaining term of the Note, or (3) be
treated as a balloon payment which will be due and payable at the Note's
maturity. Any Collateral also will secure payment of these amounts. Such right
shall be in addition to all other rights and remedies to which Lender may be
entitled upon Default.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
CONTINUITY OF OPERATIONS. (1) Engage in any business activities
substantially different than those in which Borrower is presently engaged,
(2) cease operations, liquidate, merge, transfer, acquire or consolidate
with any other entity, change its name, dissolve or transfer or sell
Collateral out of the ordinary course of business, (3) pay any dividends
or make any other distributions on Borrower's stock (other than dividends
payable in its stock), provided, however that notwithstanding the
foregoing, but only so long as no Event of Default has occurred and is
continuing or would result from the payment of dividends, if Borrower is a
"Subchapter S Corporation" (as defined in the Internal Revenue Code of
1986, as amended), Borrower may pay cash dividends on its stock to its
shareholders from time to time in amounts necessary to enable the
shareholders to pay income taxes and make estimated income tax payments to
satisfy their liabilities under federal and state law which arise solely
from their status as Shareholders of a Subchapter S Corporation because of
their ownership of shares of Borrower's stock, (4) purchase, redeem or
retire any of Borrower's outstanding shares , or (5) alter or amend
Borrower's capital structure.
RIGHT OF SETOFF. Borrower grants to Lender a security interest in, as well as a
right of setoff against, and hereby assigns, conveys, delivers, pledges and
transfers to Lender, as security for repayment of the Indebtedness, all
Borrower's right, title and interest in and to all Borrower's accounts (whether
checking, savings, or some other account) with Lender or any subsidiary or
affiliate of BANK ONE CORPORATION (each hereinafter referred to as a "Lender
Affiliate") and all other obligations at any time owing by Lender or any Lender
Affiliate to Borrower. This includes all accounts Borrower holds jointly with
someone else and all accounts Borrower may open in the future. However, this
does not include any XXX or Xxxxx accounts, or any trust accounts for which the
grant of a security interest would be prohibited by law. Borrower authorizes
Lender, without prior notice to Borrower and irrespective of (i) whether or not
Lender has made any demand under the Note or the Related Documents or (ii)
whether such Indebtedness is contingent, matured or unmatured, to the extent
permitted by law, to collect, charge and/or setoff all sums owing on the
Indebtedness against any and all such accounts and other obligations, and, at
Lender's option, to administratively freeze or direct a Lender Affiliate to
administratively freeze all such accounts and other obligations to allow Lender
to protect Lender's security interest, collection, charge and setoff rights
provided in this paragraph.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
PAYMENT DEFAULT. Borrower fails to make any payment when due under the
Loan.
OTHER DEFAULTS. Borrower fails to comply with or to pay or perform any
other term, obligation, covenant or condition contained in this Note or in
any of the Related Documents or to comply with or to pay or perform any
term, obligation, covenant or condition contained in any other agreement
between Lender and Borrower or between Borrower and any affiliate of BANK
ONE CORPORATION.
TRANSFER OF ASSETS. Borrower leases, sells, or otherwise conveys, or
agrees to lease, sell, or otherwise convey, a material part of its Assets
or business outside of the ordinary course of business.
DEFAULTS WITH RESPECT TO THIRD PARTIES. Borrower fails to make any payment
when due or fails to comply with or perform any term, obligation, covenant
or condition contained in any agreement between any other person and
Borrower.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this
Agreement, the Note, or the Related Documents is false or misleading in
any material respect, either now or at the time made or furnished or
becomes false or misleading at any time thereafter.
JUDGMENTS OR DECREES. One or more judgments or decrees shall be entered
against the Borrower and such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal.
BUSINESS LOAN AGREEMENT
(CONTINUED)
PAGE 7
INSOLVENCY. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a receiver
for any part of Borrower's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Borrower.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related
Documents ceases to be in full force and effect (including failure of any
collateral document to create a valid and perfected security interest or
lien) at any time and for any reason.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure, replevin,
repossession, attachment, levy, execution, or forfeiture proceedings,
whether by judicial proceeding, self-help, or any other method, by any
creditor of Borrower, or by any governmental agency against the Collateral
or any assets of Borrower. This includes a garnishment of any of
Borrower's accounts, including deposit accounts, with Lender. However,
this Event of Default shall not apply it there is a good faith dispute by
Borrower as to the validity or reasonableness of the claim which is the
basis of the creditor or forfeiture proceeding and if Borrower gives
Lender written notice of the creditor or forfeiture proceeding and
deposits with Lender monies or a surety bond for the creditor or
forfeiture proceeding, in an amount determined by Lender, in its sole
discretion, as being an adequate reserve or bond for the dispute.
FAILURE TO COMPLY WITH LAWS. Borrower fails to comply with all applicable
statutes, laws, ordinances and governmental rules, regulations and orders
to which it is subject or which are applicable to its business, property
and assets.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent (25%)
or more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of
the Loan is impaired.
EVENTS AFFECTING GUARANTOR. Any of the preceeding Events of Default occurs
with respect to any guarantor of the Indebtedness as if the word
"guarantor" were substituted for the word "Borrower" in such Event of
Default, or any guarantor dies or becomes incompetent, or revokes or
disputes the validity of, or liability under, any guaranty.
INSECURITY. Lender in good faith believes itself insecure.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where
otherwise provided in this Agreement or the Related Documents, all commitments
and obligations of Lender under this Agreement or the Related Documents or any
other agreement immediately will terminate (including any obligation to make
further Loan Advances or disbursements), and, at Lender's option, all
Indebtedness immediately will become due and payable, all without notice of any
kind to Borrower, except that in the case of an Event of Default of the type
described in the "Insolvency" subsection above, such acceleration shelf be
automatic and not optional. In addition, Lender shall have all the rights and
remedies provided in the Related Documents or available at law, in equity, or
otherwise. Except as may be prohibited by applicable law, all of Lender's rights
and remedies shall be cumulative and may be exercised singularly or
concurrently. Election by Lender to pursue any remedy shall not exclude pursuit
of any other remedy, and an election to make expenditures or to take action to
perform an obligation of Borrower or of any Grantor shall not affect Lender's
right to declare a default and to exercise its rights and remedies.
ARBITRATION. Undersigned and Lender agree that all disputes, claims and
controversies between them whether individual, joint, or class in nature,
arising from this document or otherwise, including without limitation contract
and tort disputes, shall be arbitrated pursuant to the Rules of the American
Arbitration Association in effect at the time the claim is filed, upon request
of either party. No act to take or dispose of any Collateral or Property (as
defined herein or in any Related Document) securing this document shall
constitute a waiver of this arbitration agreement or be prohibited by this
arbitration agreement. This includes, without limitation, obtaining injunctive
relief or a temporary restraining order; invoking a power of sale under any deed
of trust or mortgage; obtaining a writ of attachment or imposition of a
receiver; or exercising any rights relating to personal property, including
taking or disposing of such property with or without judicial process pursuant
to applicable law. Any disputes, claims, or controversies concerning the
lawfulness or reasonableness of any act, or exercise of any right, concerning
any Collateral or Property securing this document, including any claim to
rescind, reform, or otherwise modify any agreement relating to the Collateral or
Property securing this document, shall also be arbitrated, provided however that
no arbitrator shall have the right or the power to enjoin or restrain any act of
any party. Judgment upon any award rendered by any arbitrator may be entered in
any court having jurisdiction. Nothing in this
BUSINESS LOAN AGREEMENT
(CONTINUED)
PAGE 8
document shall preclude any party from seeking equitable relief from a court of
competent jurisdiction. The statute of limitations, estoppel, waiver, laches,
and similar doctrines which would otherwise be applicable in an action brought
by a party shall be applicable in any arbitration proceeding, and the
commencement of an arbitration proceeding shall be deemed the commencement of an
action for these purposes. The Federal Arbitration Act shall apply to the
construction, interpretation, and enforcement of this arbitration provision.
JURY WAIVER. THE UNDERSIGNED AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT
OR OTHERWISE) BETWEEN OR AMONG THE UNDERSIGNED AND LENDER ARISING OUT OF OR IN
ANY WAY RELATED TO THIS DOCUMENT, THE RELATED DOCUMENTS, OR ANY RELATIONSHIP
BETWEEN OR AMONG THE UNDERSIGNED AND LENDER. THIS PROVISION IS A MATERIAL
INDUCEMENT TO LENDER TO PROVIDE THE FINANCING EVIDENCED BY THIS DOCUMENT AND THE
RELATED DOCUMENTS.
EXCLUSION FROM LOAN AGREEMENT. Lender and Borrower hereby agree that, in
addition to any loan or financial accommodation described on any Exhibit
attached to this Agreement, if any, the following types of loans or financial
accommodations, whether now existing or hereafter arising, are excluded from
this Agreement: (i) any loan evidenced by a promissory note payable to Lender
which is the subject of a U. S. Small Business Administration guaranty, and 00
any construction loan governed by a construction loan agreement.
LOAN AGREEMENT APPLICABLE TO AFFILIATE BANK. Notwithstanding any other provision
in this Agreement, Borrower and Lender agree that Borrower may now or in the
future have a borrowing relationship with Bank One, NA with its main office in
Columbus, Ohio ("Bank Affiliate"). Lender and Borrower intend that only one
agreement in the nature of a loan or credit agreement be applicable to the
Borrower's relationship with Lender and/or the Bank Affiliate, except for the
exclusion of those certain loans or categories of loans specifically described
in this Agreement. Borrower agrees as follows: a) the terms, covenants,
conditions, warranties and obligations of Borrower contained in this Agreement
replace those in any loan or credit agreement, if any, presently in existence
between Borrower and the Bank Affiliate; b) any reference to "Lender" in this
Agreement shall mean the Lender named in this Agreement and the Bank Affiliate,
provided however that only the holder of any Note is responsible for any
obligation related to funding any Advance on such Note; and c) this Agreement
shall continue in full force and effect until all Indebtedness payable to Lender
and to the Bank Affiliate is paid in full.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Agreement. No alteration of or amendment to
this Agreement shall be effective unless given in writing and signed by
the party or parties sought to be charged or bound by the alteration or
amendment.
ATTORNEYS' FEES; EXPENSES. Borrower agrees to pay upon demand all of
Lender's costs and expenses, including Lender's reasonable attorneys' fees
and Lender's legal expenses, incurred in connection with the enforcement
of this Agreement. Lender may hire or pay someone else to help enforce
this Agreement, and Borrower shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's reasonable attorneys'
fees and legal expenses whether or not there is a lawsuit, including
Lender's reasonable attorneys' fees and legal expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or
injunction), appeals, and any anticipated post-judgment collection
services. Borrower also shall pay all court costs and such additional fees
as may be directed by the court.
CAPTION HEADINGS. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Agreement.
CONSENT TO LOAN PARTICIPATION. Borrower agrees and consents to Lender's
sale or transfer, whether now or later, of one or more participation
interests in the Loan to one or more purchasers, whether related or
unrelated to Lender. Lender may provide, without any limitation
whatsoever, to any one or more purchasers, or potential purchasers, any
information or knowledge Lender may have about Borrower or about any other
matter relating to the Loan, and Borrower hereby waives any rights to
privacy Borrower may have with respect to such matters. Borrower
additionally waives any and all notices of sale of participation
interests, as well as all notices of any repurchase of such participation
interests. Borrower also agrees that the purchasers of any such
participation interests will be
BUSINESS LOAN AGREEMENT
(CONTINUED)
PAGE 9
considered as the absolute owners of such interests in the Loan and will
have all the rights granted under the participation agreement or
agreements governing the sale of such participation interests. Borrower
further waives all rights of offset or counterclaim that it may have now
or later against Lender or against any purchaser of such a participation
interest and unconditionally agrees that either Lender or such purchaser
may enforce Borrower's obligation under the Loan irrespective of the
failure or insolvency of any holder of any interest in the Loan. Borrower
further agrees that the purchaser of any such participation interests may
enforce its interests irrespective of any personal claims or defenses that
Borrower may have against Lender.
GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY, CONSTRUED AND ENFORCED
IN ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF TEXAS. THIS
AGREEMENT HAS BEEN ACCEPTED BY LENDER IN THE STATE OF TEXAS.
CHOICE OF VENUE. If there is a lawsuit, and if the transaction evidenced
by this Agreement occurred in Dallas County, Borrower agrees upon Lender's
request to submit to the jurisdiction of the courts of Dallas County,
State of Texas.
INDEMNIFICATION. Borrower agrees to indemnify, defend and hold each of the
Indemnified Parties harmless from and against any and all liabilities,
obligations, claims, losses, damages, penalties, fines, forfeitures,
actions, judgments, suits, costs, expenses, and disbursements of any kind
or nature (including, without limitation, Lender's attorneys' fees)
(collectively, "Claims") which may be imposed upon, incurred by or
assessed against any Indemnified Party (whether or not caused by any
Indemnified Party's sole, concurrent, or contributory negligence) arising
in connection with this Agreement, any Related Document, or any of the
Assets (including, without limitation, the enforcement of this Agreement
and the Related Documents and the defense of any Indemnified Party's
action or inaction in connection with this Agreement and the Related
Documents) or in connection with the Borrower's failure to perform all of
Borrower's obligations under this Agreement or any Related Document,
except to the limited extent that the claims against any such Indemnified
Party are proximately caused by such Indemnified Party's gross negligence
or willful misconduct. The Indemnification provided for in this section
shall survive the termination of this Agreement and shall extend to and
continue to benefit each individual or entity who is or has at any time
been an Indemnified Party.
Borrower's indemnity obligations under this section shall not in any way
be affected by the presence or absence of covering insurance, or insurance
policy or policies affecting the Assets and/or Borrower's business
activities. Should any claim, action or proceeding be made or brought
against any Indemnified Party by reason of any event as to which
Borrower's indemnification obligations apply, then, upon such Indemnified
Party's demand, Borrower, at its sole cost and expense, shall defend such
claim, action or proceeding in Borrower's name, if necessary, by the
attorneys for Borrower's insurance carrier (if such claim, action or
proceeding is covered by insurance), or otherwise by such attorneys as
such Indemnified Party shall approve. Lender may also elect to engage its
own attorneys at its reasonable discretion to defend Borrower or any
Indemnified Party and to assist in their defense, and Borrower agrees to
pay the fees and disbursements of such attorneys upon Lender's request.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any rights
under this Agreement unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Agreement shall not prejudice or constitute
a waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Agreement. No prior waiver by
Lender, nor any course of dealing between Lender and Borrower, or between
Lender and any Grantor, shall constitute a waiver of any of Lender's
rights or of any of Borrower's or any Grantor's, obligations as to any
future transactions. Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any instance shall
not constitute continuing consent to subsequent instances where such
consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
NOTICES. Any notice required to be given under this Agreement shall be
given in writing, and shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law),
when deposited with a nationally recognized overnight courier, or, if
mailed, when deposited in the United States mail, as first class,
certified or registered mail postage prepaid, directed to the addresses
shown near the beginning of this Agreement. Any party may change its
address for notices under this Agreement by giving formal written notice
to the other parties, specifying that the purpose of the notice is to
change the party's address. For notice purposes, Borrower agrees to keep
Lender informed at all times of Borrower's current address. Unless
otherwise provided or required
BUSINESS LOAN AGREEMENT
(CONTINUED)
PAGE 10
by law, if there is more than one Borrower, any notice given by Lender to
any Borrower is deemed to be notice given to all Borrowers.
PAYMENT OF INTEREST AND FEES. Notwithstanding any other provision of this
Agreement or any provision of any Related Document, Borrower does not
agree or intend to pay, and Lender does not agree or intend to charge,
collect, take, reserve or receive (collectively referred to herein as
"charge or collect"), any amount in the nature of interest or in the
nature of a fee for the Loan which would in any way or event (including
demand, prepayment, or acceleration) cause Lender to contract for, charge
or collect more for the Loan than the maximum Lender would be permitted to
charge or collect by any applicable federal or Texas state law. Any such
excess interest or unauthorized fee will, instead of anything stated to
the contrary, be applied first to reduce the unpaid principal balance of
the Loan, and when the principal has been paid in full, be refunded to
Borrower.
SEVERABILITY. If a court of competent jurisdiction finds any provision of
this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal,
invalid, or unenforceable as to any other circumstance. If feasible, the
offending provision shall be considered modified so that it becomes legal,
valid and enforceable. If the offending provision cannot be so modified,
it shall be considered deleted from this Agreement. Unless otherwise
required by law, the illegality, invalidity, or unenforceability of any
provision of this Agreement shall not affect the legality, validity or
enforceability of any other provision of this Agreement.
SUCCESSORS AND ASSIGNS. All covenants and agreements contained by or on
behalf of Borrower shall bind Borrower's successors and assigns and shall
inure to the benefit of Lender, its successors and assigns. Borrower shall
not, however, have the right to assign Borrower's rights under this
Agreement or any interest therein, without the prior written consent of
Lender.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Borrower understands and
agrees that in extending Loan Advances, Lender is relying on all
representations, warranties, and covenants made by Borrower in this
Agreement or in any certificate or other instrument delivered by Borrower
to Lender under this Agreement or the Related Documents. Borrower further
agrees that regardless of any investigation made by Lender, all such
representations, warranties and covenants will survive the extension of
Loan Advances and delivery to Lender of the Related Documents, shall be
continuing in nature, shall be deemed made and redated by Borrower at the
time each Loan Advance is made, and shall remain in full force and effect
until such time as Borrower's Indebtedness shall be paid in full, or until
this Agreement shall be terminated in the manner provided above, whichever
is the last to occur.
TIME IS OF THE ESSENCE. Time is of the essence in the performance of this
Agreement.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Texas Uniform Commercial Code.
Accounting words and terms not otherwise defined in this Agreement shall have
the meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date of this Agreement:
ADVANCE. The word "Advance" means a disbursement of loan funds made, or to
be made, to or for the benefit of Borrower and, if applicable, includes
the issuance by or on behalf of Lender of any letters of credit for the
account of Borrower and the extension of any loans or other credit
accommodations by Lender to Borrower.
AGREEMENT. The word "Agreement" means this Business Loan Agreement, as
this Business Loan Agreement may be amended or modified from time to time,
together with all exhibits and schedules attached to this Business Loan
Agreement from time to time.
ASSETS. The word "Asset" means any property or interest in property of any
kind or description of Borrower or any Grantor, or any property or
interest in property of any Grantor which is subject to a security
interest in favor of Lender, whether such assets are real, personal,
tangible, intangible, or mixed, and whether such assets are owned, leased
or operated by Borrower, or any such Grantor.
BUSINESS LOAN AGREEMENT
(CONTINUED)
PAGE 11
BORROWER. The word "Borrower" means GENITOPE CORPORATION, and all other
persons and entities signing the Note in whatever capacity.
COLLATERAL. The word "Collateral" means all property and assets granted as
collateral security for a Loan, whether real or personal property, whether
granted directly or indirectly, whether granted now or in the future, and
whether granted in the form of a security interest, mortgage, collateral
mortgage, deed of trust, assignment, pledge, crop pledge, chattel
mortgage, collateral chattel mortgage, chattel trust, factor's lien,
equipment trust, conditional sale, trust receipt, lien, charge, lien or
title retention contract, lease or consignment intended as a security
device, or any other security or lien interest whatsoever, whether created
by law, contract, or otherwise.
DEFAULT. The word "Default" means the Default set forth in this Agreement
in the section titled "Default".
ENVIRONMENTAL LAWS. The words "Environmental Laws" mean any and all
federal, state, local and foreign statutes, judicial decisions,
regulations, ordinances, rules, judgments, orders, decrees, plans,
injunctions, permits, concessions, grants, franchises, licenses,
agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground
water or land, or (iv) the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, hazardous substances or wastes or the clean-up or other
remediation thereof.
EVENT OF DEFAULT. The words "Event of Default" mean any of the events set
forth in the section of this Agreement entitled "Default."
GAAP. The word "GAAP" means generally accepted accounting principles.
GRANTOR. The word "Grantor" means each and all of the persons or entities
granting a Security Interest in any Collateral for the Loan, including
without limitation all Borrowers granting such a Security Interest.
GUARANTOR. The word "Guarantor" means any guarantor, surety, or
accommodation party of any or all of the Loan.
HAZARDOUS SUBSTANCES. The words "Hazardous Substances" mean all explosive
or radioactive substances or wastes and all hazardous or toxic substances,
wastes or other pollutants, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls,
radon gas, infectious or medical wastes and all other substances or wastes
of any nature regulated pursuant to any Environmental Law.
INDEBTEDNESS. The word "Indebtedness" means all principal, interest, and
other amounts, costs and expenses payable under the Note or Related
Documents, together with all renewals of, extensions of, modifications of,
consolidations of and substitutions for the Note or Related Documents,
together with interest on such amounts as provided in this Note, and all
obligations, debts and liabilities, plus interest thereon, of Borrower, or
any one or more of them, to Lender, as well as claims by Lender against
Borrower or any one or more of them, whether now existing or hereafter
arising, whether related or unrelated to the purpose of the Note, whether
voluntary or otherwise, whether due or not due, direct or indirect,
absolute or contingent, liquidated or unliquidated and whether Borrower
may be liable individually or jointly with others, whether obligated as
guarantor, surety, accommodation party or otherwise, and whether recovery
upon such amounts may be or hereafter may become barred by any statute of
limitations, and whether the obligation to repay such amount may be or
hereafter may become otherwise unenforceable, and further includes,
without limitation, all principal, interest, and other amounts, costs and
expenses payable under the Related Documents, whether executed by the
Borrower or by any other person or entity, together with all renewals of,
extensions of, modifications of, consolidations of and substitutions for
the Related Documents, together with the interest thereon as provided in
the Related Documents.
INDEMNIFIED PARTIES. The words "Indemnified Parties" mean the Lender and
each of its affiliates, and each of their respective shareholders,
directors, offices, employees and agents.
LENDER. The word "Lender" means Bank One, N.A., with its main office at
Chicago, Illinois, its successors and assigns.
BUSINESS LOAN AGREEMENT
(CONTINUED)
PAGE 12
NOTE. The word "Note" means any and all promissory note or notes which
evidence Borrower's Loans in favor of Lender, as well as any amendment,
modification, renewal and replacement thereof.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory
notes, credit agreements, loan agreements, environmental agreements,
guaranties, security agreements, mortgages, deeds of trust, security
deeds, collateral mortgages, and all other instruments, agreements and
documents, whether now existing or hereafter arising, executed in
connection with the Indebtedness.
SECURITY AGREEMENT. The words "Security Agreement" mean and include
without limitation any agreements, promises, covenants, arrangements,
understandings or other agreements, whether created by law, contract, or
otherwise, evidencing, governing, representing, or creating a Security
Interest.
SECURITY INTEREST. The words "Security Interest" mean, without limitation,
any and all types of collateral security, present and future, whether in
the form of a lien, charge, encumbrance, mortgage, deed of trust, security
deed, assignment, pledge, crop pledge, chattel mortgage, collateral
chattel mortgage, chattel trust, factor's lien, equipment trust,
conditional sale, trust receipt, lien or title retention contract, lease
or consignment intended as a security device, or any other security or
lien interest whatsoever whether created by law, contract, or otherwise.
SUBORDINATED DEBT. The words "Subordinated Debt" mean all present and
future obligations, liabilities, claims, rights and demands of any kind
which may be owing from Borrower to any creditor, other than Lender, to
include, without limitation, principal, interest, costs, attorney's fees,
sums paid for protecting the rights of a holder of security, all
contingent obligations (such as a guaranty) and all other obligations of
any nature whatsoever owed to such a creditor, which have been
subordinated in all respects to the Indebtedness owed to Lender by written
agreement acceptable to Lender to include, without limitation, deferral of
any payment of principal to the creditor, deferral of interest payments
upon occurrence of any Event of Default, and subordination of any Security
Interest of such creditor until all Indebtedness is paid.
TANGIBLE NET WORTH. The words "Tangible Net Worth" mean Borrower's total
assets excluding all intangible assets (i.e. goodwill, trademarks,
patents, copyrights, organizational expenses, and similar intangible
items, but including leaseholds and leasehold improvements) less total
liabilities excluding Subordinated Debt.
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN
AGREEMENT AND BORROWER AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS
DATED JULY 28, 2003.
BORROWER:
GENITOPE CORPORATION
By: /s/ Xxx X. Xxxxxx, Xx.
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LENDER:
BANK ONE, N.A., WITH ITS MAIN OFFICE AT CHICAGO, ILLINOIS
By: /s/ Xxxxx X. Xxxxxx
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Authorized Signer
