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EXHIBIT 10.14
Customer No. 1170
MASTER LOAN AND SECURITY AGREEMENT
THIS AGREEMENT dated as of October 26, 1998, is made by Lynx Therapeutics,
Inc. (the "Borrower"), a Delaware corporation having its principal place of
business and chief executive office at 0000 Xxx Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxxx, 00000 in favor of Transamerica Business Credit Corporation, a
Delaware corporation (the "Lender"), having its principal office at Riverway II,
West Office Tower, 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000.
WHEREAS, the Borrower has requested that the Lender make Loans to it from
time to time; and
WHEREAS, the Lender has agreed to make such Loans on the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and to induce the Lender
to extend credit, the Borrower hereby agrees with the Lender as follows:
SECTION 1. DEFINITIONS.
As used herein, the following terms shall have the following meanings,
and shall be equally applicable to both the singular and plural forms of the
terms defined:
Agreement shall mean this Master Loan and Security Agreement together with all
schedules and exhibits hereto, as amended, supplemented, or otherwise modified
from time to time.
Applicable Law shall mean the laws of the State of Illinois (or any other
jurisdiction whose laws are mandatorily applicable notwithstanding the parties'
choice of Illinois law) as such laws now exist or may be changed or amended or
come into effect in the future.
Business Day shall mean any day other than a Saturday, Sunday, or public holiday
or the equivalent for banks in New York City.
Code shall have the meaning specified in Section 8(d).
Collateral shall have the meaning specified in Section 2.
Commitment Amount shall mean $5,000,000 and such additional amounts as are set
forth in commitment letters executed by the parties from time to time.
Effective Date shall mean the date on which all of the conditions specified in
Section 3.3 shall have been satisfied.
Equipment shall have the meaning specified in Section 2.
Event of Default shall mean any event specified in Section 7.
Financial Statements shall have the meaning specified in Section 6.1.
GAAP shall mean generally accepted accounting principles in the United States of
America, as in effect from time to time.
Loans shall mean the loans and financial accommodations made by the Lender to
the Borrower in accordance with the terms of this Agreement and the Notes.
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Loan Documents shall mean, collectively, this Agreement, the Notes, and all
other documents, agreements, certificates, instruments, and opinions executed
and delivered in connection herewith and therewith, as the same may be modified,
extended, restated, or supplemented from time to time.
Material Adverse Change shall mean, with respect to the Borrower, a material
adverse change in the business, operations, results of operations, assets,
liabilities, or condition (financial or otherwise) of the Borrower taken as a
whole.
Material Adverse Effect shall mean, with respect to the Borrower, a material
adverse effect on the business, operations, results of operations, assets,
liabilities, or condition (financial or otherwise) of the Borrower taken as a
whole.
Note shall mean each Promissory Note made by the Borrower in favor of the
Lender, as amended, supplemented, or otherwise modified from time to time.
Obligations shall mean all indebtedness, obligations, and liabilities of the
Borrower under the Notes and under this Agreement, whether on account of
principal, interest, indemnities, fees (including, without limitation,
attorneys' fees, remarketing fees, origination fees, collection fees, and all
other professionals' fees), costs, expenses and taxes.
Permitted Liens shall mean such of the following as to which no enforcement,
collection, execution, levy, or foreclosure proceeding shall have been
commenced: (a) liens for taxes, assessments, and other governmental charges or
levies or the claims or demands of landlords, carriers, warehousemen, mechanics,
laborers, materialmen, and other like Persons arising by operation of law in the
ordinary course of business for sums which are not yet due and payable, or liens
which are being contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves are maintained to the
extent required by GAAP; (b) deposits or pledges to secure the payment of
worker's compensation, unemployment insurance, or other social security benefits
or obligations, public or statutory obligations, surety or appeal bonds, bid or
performance bonds, or other obligations of a like nature incurred in the
ordinary course of business; (c) licenses, restrictions, or covenants for or on
the use of the Equipment which do not materially impair either the use of the
Equipment in the operation of the business of the Borrower or the value of the
Equipment; (d) attachment or judgment liens that do not constitute an Event of
Default; (e) liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods; (f) liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of setoff or similar
rights and remedies as to deposit accounts or other funds maintained with a
creditor depository institution; and (g) liens, not otherwise permitted, which
liens do not in the aggregate exceed $50,000 at any time.
Person shall mean any individual, sole proprietorship, partnership, limited
liability partnership, joint venture, trust, unincorporated organization,
association, corporation, limited liability company, institution, entity, party,
or government (including any division, agency, or department thereof), and the
successors, heirs, and assigns of each.
Schedule shall mean each Schedule in the form of Schedule A hereto delivered by
the Borrower to the Lender from time to time.
Solvent means, with respect to any Person, that as of the date as to which such
Person's solvency is measured:
(a) the fair saleable value of its assets is in excess of the total
amount of its liabilities (including contingent liabilities as valued in
accordance with GAAP) as they become absolute and matured;
(b) it has sufficient capital to conduct its business; and
(c) it is able generally to meet its debts as they mature.
Surviving Indemnities shall mean any Obligations in the nature of an indemnity
or hold harmless obligation by the Borrower in favor of the Lender arising under
the Loan Documents which by its terms survives the latest of (a) the
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termination of this Agreement; and (b) the payment of all principal, interest,
prepayment premiums (if applicable), fees and all other Obligations (not in the
nature of an indemnity or hold harmless which is not due and payable at the time
of such payment) due at the time of such payment under the Loan Documents.
Taxes shall have the meaning specified in Section 5.5.
SECTION 2. CREATION OF SECURITY INTEREST; COLLATERAL. The Borrower hereby
assigns and grants to the Lender a continuing first priority lien on, and
security interest in, all the Borrowers right, title, and interest in and to the
collateral described in the next sentence (the "Collateral") to secure the
payment and performance of all the Obligations other than the Surviving
Indemnities. The Collateral consists of all equipment financed hereunder and
specifically set forth on all the Schedules delivered from time to time under
the terms of this Agreement (the "Equipment"), together with all present and
future additions, parts, accessories, attachments in which no third party has
any rights, substitutions, repairs, improvements, and replacements thereof or
thereto, and any and all proceeds thereof, including, without limitation,
proceeds of insurance and all manuals, blueprints, know-how, warranties, and
records in connection therewith, all rights against suppliers, warrantors,
manufacturers, sellers, or others in connection therewith, and together with all
substitutes for any of the foregoing. Notwithstanding the foregoing, nothing
herein shall be construed as a limitation on the Borrower's ability to license
its intellectual property in the ordinary course of business.
SECTION 3. THE CREDIT FACILITY.
SECTION 3.1 BORROWINGS. Subject to the terms and conditions of this
Agreement, Lender hereby agrees to make Loans to Borrower in an amount not to
exceed the Commitment Amount. Each Loan shall be in an amount not less than
$50,000, and in no event shall the sum of the aggregate Loans made exceed the
amount of the Lender's written commitment to the Borrower in effect from time to
time. Notwithstanding anything herein to the contrary, the Lender shall be
obligated to make the initial Loan and each other Loan only after the Lender, in
its sole discretion, determines that the applicable conditions for borrowing
contained in Sections 3.3 and 3.4 are satisfied. The timing and financial scope
of Lender's obligation to make Loans hereunder are limited as set forth in a
commitment letter executed by Lender and Borrower, dated as of August 21, 1998
and attached hereto as Exhibit A (the "Commitment Letter").
SECTION 3.2 APPLICATION OF PROCEEDS. The Borrower shall not directly
or indirectly use any proceeds of the Loans, or cause, assist, suffer, or permit
the use of any proceeds of the Loans, for any purpose other than for the
purchase, acquisition, installation, or upgrading of Equipment or the
reimbursement of the Borrower for its purchase, acquisition, installation, or
upgrading of Equipment.
SECTION 3.3 CONDITIONS TO INITIAL LOAN.
(a) The obligation of the Lender to make the initial Loan is
subject to the Lender's receipt of the following, each dated the date of the
initial Loan or as of an earlier date acceptable to the Lender, in form and
substance satisfactory to the Lender and its counsel:
(i) completed requests for information (Form UCC-11) listing
all effective Uniform Commercial Code financing statements naming
the Borrower as debtor and all tax lien, judgment, and litigation
searches for the Borrower and performed by Lender as the Lender
shall deem necessary or desirable;
(ii) Uniform Commercial Code financing statements (Form
UCC-1) duly executed by the Borrower (naming the Lender as
secured party and the Borrower as debtor and in form acceptable
for filing in all jurisdictions that the Lender deems necessary
or desirable to perfect the security interests granted to it
hereunder) and, if applicable, termination statements or other
releases duly filed in all jurisdictions that the Lender deems
necessary or desirable to perfect and protect the priority of the
security interests granted to it hereunder in the Equipment
related to such initial Loan;
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(iii) a Note duly executed by the Borrower evidencing the
amount of such Loan;
(iv) certificates of insurance required under Section 5.4 of
this Agreement together with loss payee endorsements for all such
policies naming the Lender as lender loss payee and as an
additional insured as its interests appear;
(v) a copy of the resolutions of the Board of Directors of
the Borrower (or a unanimous consent of directors in lieu
thereof) authorizing the execution, delivery, and performance of
this Agreement, the other Loan Documents, and the transactions
contemplated hereby and thereby, attached to which is a
certificate of the Secretary or an Assistant Secretary of the
Borrower certifying (A) that the copy of the resolutions is true,
complete, and accurate, that such resolutions have not been
amended or modified since the date of such certification and are
in full force and effect and (B) the incumbency, names, and true
signatures of the officers of the Borrower authorized to sign the
Loan Documents to which it is a party;
(vi) the opinion of counsel for the Borrower covering such
matters incident to the transactions contemplated by this
Agreement as the Lender may reasonably require; and
(vii) such other agreements and instruments as the Lender
deems necessary in its good faith business judgment in connection
with the transactions contemplated hereby.
(b) There shall be no pending or, to the knowledge of the
Borrower after due inquiry, threatened litigation, proceeding, inquiry, or other
action (i) seeking an injunction or other restraining order, damages, or other
relief with respect to the transactions contemplated by this Agreement or the
other Loan Documents or thereby or (ii) which affects or is reasonably likely to
affect the business, prospects, operations, assets, liabilities, or condition
(financial or otherwise) of the Borrower, except, in the case of clause (ii),
where such litigation, proceeding, inquiry, or other action is reasonably likely
to not be expected to have a Material Adverse Effect in the judgment of the
Lender.
(c) The Borrower shall have paid all fees and expenses required
to be paid by it to the Lender as of such date as set forth in this Agreement.
(d) The security interests in the Equipment related to the
initial Loan granted in favor of the Lender under this Agreement shall have been
duly perfected and shall constitute first priority liens.
SECTION 3.4 CONDITIONS PRECEDENT TO EACH LOAN. The obligation of the
Lender to make each Loan is subject to the satisfaction of the following
conditions precedent:
(a) the Lender shall have received the documents, agreements,
and instruments set forth in Section 3.3(a)(i) through (v) applicable to such
Loan, each in form and substance reasonably satisfactory to the Lender and its
counsel and each dated the date of such Loan or as of an earlier date acceptable
to the Lender;
(b) the Lender shall have received a Schedule of the Equipment
related to such Loan, in form and substance satisfactory to the Lender and its
counsel, and the security interests in such Equipment related to such Loan
granted in favor of the Lender under this Agreement shall have been duly
perfected and shall constitute first priority liens;
(c) all representations and warranties contained in this
Agreement and the other Loan Documents shall be true and correct in all material
respects on and as of the date of such Loan as if then made, other than
representations and warranties that expressly relate solely to an earlier date,
in which case they shall have been true and correct as of such earlier date;
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(d) no Event of Default or event which with the giving of notice
or the passage of time, or both, would constitute an Event of Default shall have
occurred and be continuing or would result from the making of the requested Loan
as of the date of such request; and
(e) the Borrower shall be deemed to have hereby reaffirmed and
ratified all security interests, liens, and other encumbrances heretofore
granted by the Borrower to the Lender.
SECTION 4. THE BORROWER'S REPRESENTATIONS AND WARRANTIES.
SECTION 4.1 GOOD STANDING; QUALIFIED TO DO BUSINESS. The Borrower (a)
is duly organized, validly existing, and in good standing under the laws of the
State of its organization, (b) has the power and authority to own its properties
and assets and to transact the businesses in which it is presently, or proposes
to be, engaged, and (c) is duly qualified and authorized to do business and is
in good standing in every jurisdiction in which the failure to be so qualified
could have a Material Adverse Effect on (i) the Borrower, (ii) the Borrower's
ability to perform its obligations under the Loan Documents, or (iii) the rights
of the Lender hereunder.
SECTION 4.2 DUE EXECUTION, ETC. The execution, delivery, and
performance by the Borrower of each of the Loan Documents to which it is a party
are within the powers of the Borrower, do not contravene the organizational
documents, if any, of the Borrower, and do not (a) violate any law or
regulation, or any order or decree of any court or governmental authority, (b)
conflict with or result in a breach of, or constitute a default under, any
material indenture, mortgage, or deed of trust or any material lease, agreement,
or other instrument binding on the Borrower or any of its properties, or (c)
require the consent, authorization by, or approval of or notice to or filing or
registration with any governmental authority or other Person. This Agreement is,
and each of the other Loan Documents to which the Borrower is or will be a
party, when delivered hereunder or thereunder, will be, the legal, valid, and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, or similar laws affecting creditors' rights generally
and by general principles of equity.
SECTION 4.3 SOLVENCY; NO LIENS. The Borrower is Solvent and will be
Solvent upon the completion of all transactions contemplated to occur hereunder
(including, without limitation, the Loan to be made on the Effective Date); the
security interests granted herein constitute and shall at all times constitute
the first and only liens on the Collateral other than Permitted Liens; and the
Borrower is, or will be at the time additional Collateral is acquired by it, the
absolute owner or licensee of the Collateral with full right to pledge, sell,
consign, transfer, and create a security interest therein, free and clear of any
and all claims or liens in favor of any other Person other than Permitted Liens.
SECTION 4.4 NO JUDGMENTS, LITIGATION. No judgments are outstanding
against the Borrower nor is there now pending or, to the best of the Borrower's
knowledge after diligent inquiry, threatened any litigation, contested claim, or
governmental proceeding by or against the Borrower except judgments and pending
or threatened litigation, contested claims, and governmental proceedings which
would not, in the aggregate, have a Material Adverse Effect on the Borrower.
SECTION 4.5 NO DEFAULTS. The Borrower is not in default or has not
received a notice of default under any material contract, lease, or commitment
to which it is a party or by which it is bound. The Borrower knows of no dispute
regarding any contract, lease, or commitment which could have a Material Adverse
Effect on the Borrower.
SECTION 4.6 COLLATERAL LOCATIONS. On the date hereof, each item of the
Collateral is located at the place of business specified in the applicable
Schedule.
SECTION 4.7 NO EVENTS OF DEFAULT. No Event of Default has occurred and
is continuing nor has any event occurred which, with the giving of notice or the
passage of time, or both, would constitute an Event of Default.
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SECTION 4.8 NO LIMITATION ON LENDER'S RIGHTS. Except as permitted
herein, or as set forth in any software license or facility leases, none of the
Collateral is subject to contractual obligations that may restrict or inhibit
the Lender's rights or abilities to sell or dispose of the Collateral or any
part thereof after the occurrence of an Event of Default.
SECTION 4.9 PERFECTION AND PRIORITY OF SECURITY INTEREST. This
Agreement creates a valid and, upon completion of all required filings of
financing statements, perfected first priority security interest in the
Collateral subject to Permitted Liens, securing the payment of all the
Obligations.
SECTION 4.10 MODEL AND SERIAL NUMBERS. The Schedules set forth the
true and correct model number and serial number of each item of Equipment that
constitutes Collateral.
SECTION 4.11 ACCURACY AND COMPLETENESS OF INFORMATION. All data,
reports, and information heretofore, contemporaneously, or hereafter furnished
by of the Borrower in writing to the Lender or for purposes of or in connection
with this Agreement or any other Loan Document, or any transaction contemplated
hereby or thereby, are or will be true and accurate in all material respects on
the date as of which such data, reports, and information are dated or certified
and not incomplete by omitting to state any material fact necessary to make such
data, reports, and information not misleading in any material respect at such
time. There are no facts now known to the Borrower which individually or in the
aggregate is reasonably likely to have a Material Adverse Effect and which have
not been specified herein, in the Financial Statements, or in any certificate,
opinion, or other written statement previously furnished by the Borrower to the
Lender.
SECTION 4.12 PRICE OF EQUIPMENT. To the knowledge of Borrower, the
cost of each item of Equipment does not exceed the fair and usual price for such
type of equipment purchased in like quantity and reflects all discounts, rebates
and allowances for the Equipment (including, without limitation, discounts for
advertising, prompt payment, testing, or other services) given to the Borrower
by the manufacturer or supplier.
SECTION 5. COVENANTS OF THE BORROWER.
SECTION 5.1 EXISTENCE, ETC. The Borrower shall: (a) retain its
existence and its current yearly accounting cycle, (b) maintain in full force
and effect all licenses, bonds, franchises, leases, trademarks, patents,
contracts, and other rights necessary or desirable to the profitable conduct of
its business unless the failure to do so could not reasonably be expected to
have a Material Adverse Effect on the Borrower, (c) continue in, and limit its
operations to, the same general lines of business as those presently conducted
by it, and (d) comply with all applicable laws and regulations of any federal,
state, or local governmental authority, except for such laws and regulations the
violations of which would not, in the aggregate, have a Material Adverse Effect
on the Borrower.
SECTION 5.2 NOTICE TO THE LENDER. As soon as possible, and in any
event within ten Business Days after the Borrower learns of the following, the
Borrower will give written notice to the Lender of (a) any proceeding instituted
or threatened to be instituted by or against the Borrower in any federal, state,
local, or foreign court or before any commission or other regulatory body
(federal, state, local, or foreign) involving a sum, together with the sum
involved in all other similar proceedings, in excess of $250,000 in the
aggregate, (b) any contract that is terminated or amended and which has had or
could reasonably be expected to have a Material Adverse Effect on the Borrower,
(c) the occurrence of any Material Adverse Change with respect to the Borrower,
and (d) the occurrence of any Event of Default or event or condition which, with
notice or lapse of time or both, would constitute an Event of Default, together
with a statement of the action which the Borrower has taken or proposes to take
with respect thereto.
SECTION 5.3 MAINTENANCE OF BOOKS AND RECORDS. The Borrower will
maintain books and records pertaining to the Collateral in such detail, form,
and scope as the Lender shall require in its commercially reasonable judgment.
The Borrower agrees that the Lender or its agents may enter upon the Borrower's
premises with reasonable notice and subject to the reasonable security
procedures of the Borrower at any time and from time to time during normal
business hours, and at any time upon the occurrence and continuance of an Event
of Default, for the purpose of inspecting the Collateral and any and all records
pertaining thereto.
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SECTION 5.4 INSURANCE. The Borrower will maintain insurance on the
Collateral under such policies of insurance, with such insurance companies, in
such amounts, and covering such risks as are customary for Borrower's line of
business and at all times satisfactory to the Lender. All such policies shall be
made payable to the Lender, in case of loss, under a standard non-contributory
"lender" or "secured party" clause and are to contain such other provisions as
the Lender may reasonably require to protect the Lender's interests in the
Collateral and to any payments to be made under such policies. Certificates of
insurance policies are to be delivered to the Lender, premium prepaid, with the
loss payable endorsement in the Lender's favor, and shall provide for not less
than thirty days' prior written notice to the Lender, of any material change or
cancellation of coverage. In the event that such certificate of insurance does
not provide for thirty days' prior written notice to the Lender of any material
change in coverage, then Borrower shall be required to provide such notice to
Lender. If the Borrower fails to maintain such insurance, the Lender may arrange
for (at the Borrower's expense and without any responsibility on the Lender's
part for) obtaining the insurance. Unless the Lender shall otherwise agree with
the Borrower in writing, the Lender shall have the right, in the name of the
Lender or the Borrower, to file claims under any insurance policies, to receive
and give acquittance for any payments that may be payable thereunder, and to
execute any endorsements, receipts, releases, assignments, reassignments, or
other documents that may be necessary to effect the collection, compromise, or
settlement of any claims under any such insurance policies.
SECTION 5.5 TAXES. The Borrower will pay, when due, all taxes,
assessments, claims, and other charges ("Taxes") lawfully levied or assessed
against the Borrower or the Collateral other than taxes that are being
diligently contested in good faith by the Borrower by appropriate proceedings
promptly instituted and for which an adequate reserve is being maintained by the
Borrower in accordance with GAAP. If any Taxes remain unpaid after the date
fixed for the payment thereof, or if any lien shall be claimed therefor, then,
without notice to the Borrower, but on the Borrower's behalf, the Lender may pay
such Taxes, and the amount thereof shall be included in the Obligations.
SECTION 5.6 BORROWER TO DEFEND COLLATERAL AGAINST CLAIMS; FEES ON
COLLATERAL. The Borrower will defend the Collateral against all claims and
demands of all Persons at any time claiming the same or any interest therein
except Permitted Liens. The Borrower will not permit any notice creating or
otherwise relating to liens on the Collateral or any portion thereof to exist or
be on file in any public office other than Permitted Liens. The Borrower shall
promptly pay, when payable, all transportation, storage, and warehousing charges
and license fees, registration fees, assessments, charges, permit fees, and
taxes (municipal, state, and federal) which may now or hereafter be imposed upon
the ownership, leasing, renting, possession, sale, or use of the Collateral,
other than taxes on or measured by the Lender's income and fees, assessments,
charges, and taxes which are being contested in good faith by appropriate
proceedings diligently conducted and with respect to which adequate reserves are
maintained to the extent required by GAAP.
SECTION 5.7 NO CHANGE OF LOCATION, STRUCTURE, OR IDENTITY. The
Borrower will not (a) change the location of its chief executive office or
establish any place of business other than those specified herein or (b) move or
permit the movement of any item of Collateral from the location specified in the
applicable Schedule, except that the Borrower may change its chief executive
office and keep Collateral at other locations within the United States provided
that the Borrower has delivered to the Lender (i) prompt subsequent written
notice thereof and (ii) duly executed financing statements and other agreements
and instruments (all in form and substance satisfactory to the Lender) necessary
and requested by Lender or, in the opinion of the Lender, desirable to perfect
and maintain in favor of the Lender a first priority security interest in the
Collateral. Notwithstanding anything to the contrary in the immediately
preceding sentence, the Borrower may keep any Collateral consisting of motor
vehicles or rolling stock at any location in the United States provided that the
Lender's security interest in any such Collateral is conspicuously marked on the
certificate of title thereof and the Borrower has complied with the provisions
of Section 5.9.
SECTION 5.8 USE OF COLLATERAL; LICENSES; REPAIR. The Collateral shall
be operated by competent, qualified personnel in connection with the Borrower's
business purposes, for the purpose for which the Collateral was designed and in
accordance with applicable operating instructions, laws, and government
regulations, and the Borrower shall use reasonable precaution to prevent loss or
damage to the Collateral from fire and other hazards. The Collateral shall not
be used or operated for personal, family, or household purposes. The Borrower
shall procure and maintain in effect all orders, licenses, certificates,
permits, approvals, and consents required by federal, state, or local laws or by
any governmental body, agency, or authority in connection with the delivery,
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installation, use, and operation of the Collateral. The Borrower shall keep all
of the Equipment in a satisfactory state of repair and satisfactory operating
condition in accordance with industry standards, and will make all repairs and
replacements when and where necessary and practical. The Borrower will not waste
or destroy the Equipment or any part thereof, and will not be negligent in the
care or use thereof. Except for tenant improvements, the Equipment shall not be
annexed or affixed to or become part of any realty without the Lenders prior
written consent.
SECTION 5.9 FURTHER ASSURANCES. The Borrower will, promptly upon
request by the Lender, execute and deliver or use its best efforts to obtain any
document required by the Lender (including, without limitation, warehouseman or
processor disclaimers, mortgagee waivers, landlord disclaimers, or subordination
agreements with respect to the Obligations and the Collateral), give any
notices, execute and file any financing statements, mortgages, or other
documents (all in form and substance satisfactory to the Lender), xxxx any
chattel paper, deliver any chattel paper or instruments to the Lender, and take
any other actions that are necessary or, in the opinion of the Lender, desirable
to perfect or continue the perfection and the first priority of the Lender's
security interest in the Collateral, to protect the Collateral against the
rights, claims, or interests of any Persons, or to effect the purposes of this
Agreement. The Borrower hereby authorizes the Lender to file one or more
financing or continuation statements, and amendments thereto, relating to all or
any part of the Collateral without the signature of the Borrower where permitted
by law. A carbon, photographic, or other reproduction of this Agreement or any
financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law. To the extent
required under this Agreement, the Borrower will pay all costs incurred in
connection with any of the foregoing.
SECTION 5.10 NO DISPOSITION OF COLLATERAL. The Borrower will not in
any way hypothecate or create or permit to exist any lien, security interest,
charge, or encumbrance on or other interest in any of the Collateral, except for
the lien and security interest granted hereby and Permitted Liens which are
junior to the lien and security interest of the Lender, and the Borrower will
not sell, transfer, assign, pledge, collaterally assign, exchange, or otherwise
dispose of any of the Collateral. In the event the Collateral, or any part
thereof, is sold, transferred, assigned, exchanged, or otherwise disposed of in
violation of these provisions, the security interest of the Lender shall
continue in such Collateral or part thereof notwithstanding such sale, transfer,
assignment, exchange, or other disposition, and the Borrower will hold the
proceeds thereof in a separate account for the benefit of the Lender. Following
such a sale, the Borrower will transfer such proceeds to the Lender in kind.
SECTION 5.11 NO LIMITATION ON LENDER'S RIGHTS. The Borrower will not
enter into any contractual obligations other than software license agreements
or, with the prior written consent of the Lender, facility leases, which may
restrict or inhibit the Lenders rights or ability to sell or otherwise dispose
of the Collateral or any part thereof.
SECTION 5.12 PROTECTION OF COLLATERAL. Upon notice to the Borrower
(provided that if an Event of Default has occurred and is continuing the Lender
need not give any notice), the Lender shall have the right at any time to make
any payments and do any other acts the Lender may deem necessary to protect its
security interests in the Collateral, including, without limitation, the rights
to satisfy, purchase, contest, or compromise any encumbrance, charge, or lien
which, in the reasonable judgment of the Lender, appears to be prior to or
superior to the security interests granted hereunder, and appear in, and defend
any action or proceeding purporting to affect its security interests in, or the
value of, any of the Collateral. The Borrower hereby agrees to reimburse the
Lender for all payments made and expenses incurred under this Agreement
including reasonable fees, expenses, and disbursements of attorneys and
paralegals (including the allocated costs of in-house counsel) acting for the
Lender, including any of the foregoing payments under, or acts taken to protect
its security interests in, any of the Collateral, which amounts shall be secured
under this Agreement, and agrees it shall be bound by any payment made or act
taken by the Lender hereunder absent the Lenders gross negligence or willful
misconduct. The Lender shall have no obligation to make any of the foregoing
payments or perform any of the foregoing acts.
SECTION 5.13 DELIVERY OF ITEMS. The Borrower will (a) promptly (but in
no event later than ten Business Days) after its receipt thereof, deliver to the
Lender any documents or certificates of title issued with respect to any
property included in the Collateral, and any promissory notes, letters of credit
or instruments related to or otherwise in connection with any property included
in the Collateral, which in any such case come into the possession of the
Borrower, or shall cause the issuer thereof to deliver any of the same directly
to the Lender, in
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each case with any necessary endorsements in favor of the Lender and (b) deliver
to the Lender as soon as available copies of any and all press releases and
other similar communications issued by the Borrower.
SECTION 5.14 SOLVENCY. The Borrower shall be and remain Solvent at all
times.
SECTION 5.15 FUNDAMENTAL CHANGES. Without prior written consent of the
Lender, the Borrower shall not: (a) merge or consolidate into any other Person
(Lender's consent shall not be withheld if (i) the Borrower is the survivor of
such merger or consolidation and remains in compliance with all the terms and
conditions of the Loan Documents or any other survivor of such merger or
consolidation assumes all the Obligations, including, without limitation, all of
the Borrower's payment obligations, pursuant to assignment documentation
acceptable to the Lender in its sole discretion, (ii) in the good faith business
judgment of the Lender, the ability of such surviving entity to perform its
obligations hereunder is no worse than that of the Borrower immediately before
such merger or consolidation, and (iii) such surviving entity delivers Uniform
Commercial Code financing statements (Form UCC-1) duly executed by the surviving
entity (naming the Lender as secured party and the surviving entity as debtor
and in form acceptable for filing in all jurisdictions that the Lender deems
necessary or advisable to perfect the security interests granted to it
hereunder) and, if applicable, termination statements, or other releases duly
filed in all jurisdictions that the Lender deems necessary or advisable to
perfect and protect the priority of the security interests granted by the
Borrower hereunder), (b) amend or modify its name (unless the Borrower delivers
to the Lender thirty days prior to any such proposed amendment or modification
written notice of such proposal and within ten days following such amendment or
modification delivers executed Uniform Commercial Code financing statements (in
form and substance satisfactory to the Lender) reflecting such amendment or
modification) or (c) sell or otherwise dispose of all or substantially all of
its assets.
SECTION 5.16 ADDITIONAL REQUIREMENTS. The Borrower shall take all such
further actions and execute all such further documents and instruments as the
Lender may reasonably request in order to carry out the provisions of this
Agreement.
SECTION 6. FINANCIAL STATEMENTS. Until the payment and satisfaction in full
of all Obligations, the Borrower shall deliver to the Lender the following
financial information:
SECTION 6.1 ANNUAL FINANCIAL STATEMENTS. As soon as available, but not
later than 120 days after the end of each fiscal year of the Borrower and its
consolidated subsidiaries, the consolidated balance sheet, income statement, and
statements of cash flows and shareholders equity for the Borrower and its
consolidated subsidiaries (the "Financial Statements") for such year, reported
on by independent certified public accountants without an adverse qualification;
and
SECTION 6.2 QUARTERLY FINANCIAL STATEMENTS. As soon as available, but
not later than 60 days after the end of each of the first three fiscal quarters
in any fiscal year of the Borrower and its consolidated subsidiaries, the
Financial Statements for such fiscal quarter, together with a certification duly
executed by a responsible officer of the Borrower that such Financial Statements
have been prepared in accordance with GAAP and are fairly stated in all material
respects (subject to normal year-end audit adjustments).
SECTION 7. EVENTS OF DEFAULT. The occurrence of any of the following events
shall constitute an Event of Default hereunder:
(a) the Borrower shall fail to pay within two Business Days
after notice of failure to pay when due any amount required to be paid by the
Borrower under or in connection with any Note and this Agreement;
(b) any representation or warranty made or deemed made by the
Borrower under or in connection with any Loan Document or any Financial
Statement shall prove to have been false or incorrect in any material respect
when made;
(c) the Borrower shall fail to perform or observe (i) any of the
terms, covenants or agreements contained in Sections 5.4, 5.7, 5.10, 5.14, or
5.15 hereof or (ii) any other term, covenant, or agreement
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contained in any Loan Document (other than the other Events of Default specified
in this Section 7) and such failure remains unremedied for the earlier of
fifteen days from (A) the date on which the Lender has given the Borrower
written notice of such failure and (B) the date on which the Borrower knew of
such failure;
(d) any material provision of any Loan Document to which the
Borrower is a party shall for any reason cease to be valid and binding on the
Borrower, or the Borrower shall so state;
(e) dissolution, liquidation, winding up, or cessation of the
Borrower's business, failure of the Borrower generally to pay its debts as they
mature, admission in writing by the Borrower of its inability generally to pay
its debts as they mature, or calling of a meeting of the Borrowers creditors for
purposes of compromising any of the Borrowers debts;
(f) the commencement by or against the Borrower of any
bankruptcy, insolvency, arrangement, reorganization, receivership, or similar
proceedings under any federal or state law and, in the case of any such
involuntary proceeding, such proceeding remains undismissed or unstayed for
sixty days following the commencement thereof, or any action by the Borrower is
taken authorizing any such proceedings;
(g) an assignment for the benefit of creditors is made by the
Borrower, whether voluntary or involuntary, the appointment of a trustee,
custodian, receiver, or similar official for the Borrower or for any substantial
property of the Borrower, or any action by the Borrower authorizing any such
proceeding;
(h) the Borrower. shall default in (i) the payment of principal
or interest on any indebtedness in excess of $250,000 (other than the
Obligations) beyond the period of grace, if any, provided in the instrument or
agreement under which such indebtedness was created; or (ii) a material respect
in the observance or performance of any other agreement or condition relating to
any such indebtedness or contained in any instrument or agreement relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is that the Borrower receives a notice of
default; or (iii) any loan or other agreement under which the Borrower has
received financing from Transamerica Corporation or any of its affiliates;
(i) the Borrower suffers or sustains a Material Adverse Change;
(j) any tax lien, other than a Permitted Lien, is filed of
record against the Borrower and is not bonded or discharged within five Business
Days;
(k) any judgment which has had or is reasonably likely in the
good faith business judgment of the Lender to have a Material Adverse Effect on
the Borrower and such judgment shall not be stayed, vacated, bonded, or
discharged within sixty days;
(l) any covenant, agreement, or obligation made by the Borrower
and contained in or evidenced by any of the Loan Documents shall cease to be
enforceable, or shall be determined to be unenforceable, in accordance with its
terms; the Borrower shall deny or disaffirm the Obligations under any of the
Loan Documents or any liens granted in connection therewith; or any liens
granted on any of the Collateral in favor of the Lender shall be determined to
be void, voidable, or invalid, or shall not be given the priority contemplated
by this Agreement; or
(m) except in connection with a transaction to which Lender has
consented pursuant to Section 5.15 hereof, there is a change, which change
results from a single transaction or series of related transactions, but not
from the sale of newly issued securities to investors, in more than 35% of the
ownership of any equity interests of the Borrower on the date hereof or more
than 35% of such interests become subject to any contractual, judicial, or
statutory lien, charge, security interest, or encumbrance.
SECTION 8. REMEDIES. If any Event of Default shall have occurred and be
continuing:
(a) The Lender may, without prejudice to any of its other rights
under any Loan Document or Applicable Law, with the giving of notice declare all
Obligations to be immediately due and payable
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(except with respect to any Event of Default set forth in Section 7(f) hereof,
in which case all Obligations shall automatically become immediately due and
payable without necessity of any declaration) without presentment,
representation, demand of payment, or protest, which are hereby expressly
waived.
(b) The Lender may take possession of the Collateral and, for
that purpose may enter, with the aid and assistance of any person or persons,
any premises where the Collateral or any part hereof is, or may be placed, and
remove the same.
(c) The obligation of the Lender, if any, to make additional
Loans or financial accommodations of any kind to the Borrower shall immediately
terminate.
(d) The Lender may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein (or in any Loan
Document) or otherwise available to it, all the rights and remedies of a secured
party under the applicable Uniform Commercial Code (the "Code") whether or not
the Code applies to the affected Collateral and also may (i) require the
Borrower to, and the Borrower hereby agrees that it will at its expense and upon
request of the Lender forthwith, assemble all or part of the Collateral as
directed by the Lender and make it available to the Lender at a place to be
designated by the Lender that is reasonably convenient to both parties and (ii)
without notice except as specified below, sell the Collateral or any part
thereof in one or more parcels at public or private sale, at any of the Lender's
offices or elsewhere, for cash, on credit, or for future delivery, and upon such
other terms as are commercially reasonable. The Borrower agrees that, to the
extent notice of sale shall be required by law, at least ten days' notice to the
Borrower of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The Lender
shall not be obligated to make any sale of Collateral regardless of notice of
sale having been given. The Lender may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it was so
adjourned.
(e) All cash proceeds received by the Lender in respect of any
sale of, collection from, or other realization upon all or any part of the
Collateral may, in the discretion of the Lender, be held by the Lender as
collateral for, or then or at any time thereafter applied in whole or in part by
the Lender against, all or any part of the Obligations in such order as the
Lender shall elect. Any surplus of such cash or cash proceeds held by the Lender
and remaining after the full and final payment of all the Obligations shall be
paid over to the Borrower or to such other Person to which the Lender may be
required under applicable law, or directed by a court of competent jurisdiction,
to make payment of such surplus.
SECTION 9. MISCELLANEOUS PROVISIONS.
SECTION 9.1 NOTICES. Except as otherwise provided herein, all notices,
approvals, consents, correspondence, or other communications required or desired
to be given hereunder shall be given in writing and shall be delivered by
overnight courier, hand delivery, or certified or registered mail, postage
prepaid, if to the Lender, then to Transamerica Technology Finance Division, 00
Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Assistant Vice
President, Lease Administration, with a copy to the Lender at Riverway II, West
Office Tower, 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Legal
Department, and if to the Borrower, then to Lynx Therapeutics, Inc., 0000 Xxx
Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000, Attention: Chief Financial Officer or
such other address as shall be designated by the Borrower or the Lender to the
other party in accordance herewith. All such notices and correspondence shall be
effective when received.
SECTION 9.2 HEADINGS. The headings in this Agreement are for purposes
of reference only and shall not affect the meaning or construction of any
provision of this Agreement.
SECTION 9.3 ASSIGNMENTS. Except in connection with a transaction to
which Lender consents under Section 5.15, the Borrower shall not have the right
to assign any Note or this Agreement or any interest therein unless the Lender
shall have given the Borrower prior written consent and the Borrower and its
assignee shall have delivered assignment documentation in form and substance
satisfactory to the Lender in its sole discretion. The Lender may assign its
rights and delegate its obligations under any Note or this Agreement.
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SECTION 9.4 AMENDMENTS, WAIVERS, AND CONSENTS. Any amendment or waiver
of any provision of this Agreement and any consent to any departure by the
Borrower from any provision of this Agreement shall be effective only by a
writing signed by the Lender and Borrower and shall bind and benefit the
Borrower and the Lender and their respective successors and assigns, subject, in
the case of the Borrower, to the first sentence of Section 9.3.
SECTION 9.5 INTERPRETATION OF AGREEMENT. Time is of the essence in
each provision of this Agreement of which time is an element. All terms not
defined herein or in a Note shall have the meaning set forth in the applicable
Code, except where the context otherwise requires. To the extent a term or
provision of this Agreement conflicts with any Note, or any term or provision
thereof, and is not dealt with herein with more specificity, this Agreement
shall control with respect to the subject matter of such term or provision.
Acceptance of or acquiescence in a course of performance rendered under this
Agreement shall not be relevant in determining the meaning of this Agreement
even though the accepting or acquiescing party had knowledge of the nature of
the performance and opportunity for objection.
SECTION 9.6 CONTINUING SECURITY INTEREST. This Agreement shall create
a continuing security interest in the Collateral and shall (i) remain in full
force and effect until the indefeasible payment in full of the Obligations, (ii)
be binding upon the Borrower and its successors and assigns and (iii) inure,
together with the rights and remedies of the Lender hereunder, to the benefit of
the Lender and its successors, transferees, and assigns.
SECTION 9.7 REINSTATEMENT. To the extent permitted by law, this
Agreement and the rights and powers granted to the Lender hereunder and under
the Loan Documents shall continue to be effective or be reinstated if at any
time any amount received by the Lender in respect of the Obligations is
rescinded or must otherwise be restored or returned by the Lender upon the
insolvency, bankruptcy, dissolution, liquidation, or reorganization of the
Borrower or upon the appointment of any receiver, intervenor, conservator,
trustee, or similar official for the Borrower or any substantial part of its
assets, or otherwise, all as though such payments had not been made.
SECTION 9.8 SURVIVAL OF PROVISIONS. All representations, warranties,
and covenants of the Borrower contained herein shall survive the execution and
delivery of this Agreement, and shall terminate only upon the full and final
payment and performance by the Borrower of the Obligations secured hereby.
SECTION 9.9 INDEMNIFICATION. The Borrower agrees to indemnify and hold
harmless the Lender and its directors, officers, agents, employees, and counsel
from and against any and all costs, expenses, claims, or liability incurred by
the Lender or such Person hereunder and under any other Loan Document or in
connection herewith or therewith, unless such claim or liability shall be due to
willful misconduct or gross negligence on the part of the Lender or such Person.
SECTION 9.10 COUNTERPARTS; TELECOPIED SIGNATURES. This Agreement may
be executed in counterparts, each of which when so executed and delivered shall
be an original, but both of which shall together constitute one and the same
instrument. This Agreement and each of the other Loan Documents and any notices
given in connection herewith or therewith may be executed and delivered by
telecopier or other facsimile transmission all with the same force and effect as
if the same was a fully executed and delivered original manual counterpart.
SECTION 9.11 SEVERABILITY. In case any provision in or obligation
under this Agreement or any Note or any other Loan Document shall be invalid,
illegal, or unenforceable in any jurisdiction, the validity, legality, and
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.
SECTION 9.12 DELAYS; PARTIAL EXERCISE OF REMEDIES. No delay or
omission of the Lender to exercise any right or remedy hereunder, whether before
or after the happening of any Event of Default, shall impair any such right or
shall operate as a waiver thereof or as a waiver of any such Event of Default.
No single or partial exercise by the Lender of any right or remedy shall
preclude any other or further exercise thereof, or preclude any other right or
remedy.
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SECTION 9.13 ENTIRE AGREEMENT. The Borrower and the Lender agree that
this Agreement, the Schedule hereto, and the Commitment Letter are the complete
and exclusive statement and agreement between the parties with respect to the
subject matter hereof, superseding all proposals and prior agreements, oral or
written, and all other communications between the parties with respect to the
subject matter hereof. Should there exist any inconsistency between the terms of
the Commitment Letter and this Agreement, the terms of this Agreement shall
prevail.
SECTION 9.14 SETOFF. In addition to and not in limitation of all
rights of offset that the Lender may have under Applicable Law, and whether or
not the Lender has made any demand or the Obligations of the Borrower have
matured, the Lender shall have the right to appropriate and apply to the payment
of the Obligations of the Borrower all deposits and other obligations then or
thereafter owing by the Lender to or for the credit or the account of the
Borrower.
SECTION 9.15 WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER
IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 9.16 GOVERNING LAW. THE VALIDITY, INTERPRETATION, AND
ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAW PRINCIPLES THEREOF.
SECTION 9.17 VENUE; SERVICE OF PROCESS. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF ILLINOIS SITUATED IN XXXX COUNTY, OR OF THE UNITED STATES
OF AMERICA FOR THE NORTHERN DISTRICT OF ILLINOIS, AND, BY EXECUTION AND DELIVERY
OF THIS AGREEMENT, THE BORROWER HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. THE BORROWER HEREBY IRREVOCABLY WAIVES, IN CONNECTION WITH ANY SUCH
ACTION OR PROCEEDING, (a) ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, THAT IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION
OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS AND (b) THE RIGHT TO INTERPOSE
ANY NONCOMPULSORY SETOFF, COUNTERCLAIM, OR CROSS-CLAIM. THE BORROWER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY
SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT THE ADDRESS FOR IT SPECIFIED
IN SECTION 9.1 HEREOF. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE LENDER TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION,
SUBJECT IN EACH INSTANCE TO THE PROVISIONS HEREOF WITH RESPECT TO RIGHTS AND
REMEDIES.
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IN WITNESS WHEREOF, the undersigned Borrower has caused this Agreement to
be duly executed and delivered by its proper and duly authorized officer as of
the date first set forth above.
LYNX THERAPEUTICS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
Federal Tax: 00-0000000
Accepted as of the
day of October , 1998
---------
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: /s/ Xxxx X. Xxxx
--------------------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
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