LOAN
Exhibit 10.34
LOAN AND SECURITY AGREEMENT
SANGSTAT MEDICAL CORPORATION
Borrower
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address
▇▇-▇▇▇▇▇▇▇
Borrower Fed ID Tax No.
$30,000,000
Credit Limit
April 21, 2000
Date
CORPORATE FINANCE
table of
contents
Page
1. DEFINITIONS. *
1.1 Defined Terms *
1.2 Other Terms. *
2. LOANS; INTEREST RATE AND OTHER CHARGES.
*
2.1 Total Facility *
2.2 Loans *
2.3 Overlines; Overadvances *
2.4 [Intentionally Omitted] *
2.5 Loan Account *
2.6 Interest; Fees *
2.7 Default Interest Rate *
2.8 Examination Fee *
2.9 Excess Interest. *
2.10 Principal Payments; Proceeds of Collateral. *
2.11 Application of Collateral *
2.12 Application of Payments *
3. SECURITY. *
3.1 Security Interest in the Collateral *
3.2 Perfection and Protection of Security Interest *
3.3 Preservation of Collateral *
3.4 Insurance *
3.5 Collateral Reporting; Inventory. *
3.6 Receivables. *
3.7 Equipment *
3.8 Other Liens; No Disposition of Collateral *
3.9 Collateral Security *
3.10 Special Intellectual Property Provisions *
4. CONDITIONS OF CLOSING. *
4.1 Initial Advance *
4.2 Subsequent Advances *
5. REPRESENTATIONS AND WARRANTIES. *
5.1 Due Organization *
5.2 Other Names *
5.3 Due Authorization *
5.4 Binding Obligation *
5.5 Intangible Property *
5.6 Capital *
5.7 Material Litigation *
5.8 Title; Security Interests of FINOVA *
5.9 Restrictive Agreements; Labor Contracts *
5.10 Laws *
5.11 Consents *
5.12 Defaults *
5.13 Financial Condition *
5.14 ERISA *
5.15 Taxes *
5.16 Locations; Federal Tax ID No. *
5.17 Business Relationships *
5.18 Year 2000 Representations and Warranties *
5.19 Performance and Other Bonds *
5.20 Reaffirmations *
6. COVENANTS. *
6.1 Affirmative Covenants *
6.1.1 Taxes *
6.1.2 Notice of Litigation *
6.1.3 ERISA *
6.1.4 Change in Location *
6.1.5 Entity Existence *
6.1.6 Labor Disputes *
6.1.7 Violations of Law *
6.1.8 Defaults *
6.1.9 Capital Expenditures *
6.1.10 Books and Records *
6.1.11 Leases; Warehouse Agreements *
6.1.12 Additional Documents *
6.1.13 Financial Covenants *
6.1.14 Year 2000 Covenants *
6.1.15 Intangible Property *
6.1.16 Bank Accounts *
6.1.17 Minimum Loan Balances. *
6.2 Negative Covenants *
6.2.1 Mergers and Acquisitions *
6.2.2 Loans and Investments *
6.2.3 Dividends *
6.2.4 Adverse Transactions *
6.2.5 Indebtedness of Others *
6.2.6 Repurchase *
6.2.7 Name *
6.2.8 Prepayment *
6.2.9 Capital Expenditure *
6.2.10 Compensation *
6.2.11 Indebtedness *
6.2.12 Affiliate Transactions *
6.2.13 Nature of Business *
6.2.14 FINOVA's Name *
6.2.15 Margin Security *
6.2.16 Real Property *
6.2.17 Liens *
6.2.18 Change in Fiscal Year; Auditors *
6.2.19 Subordinated Documents in Certain Material Agreements *
6.2.20 Pharmacy Operation *
6.2.21 Self-Service Storage Facility. *
7. DEFAULT AND REMEDIES. *
7.1 Events of Default *
7.2 Remedies *
7.3 Standards for Determining Commercial Reasonableness *
8. EXPENSES AND INDEMNITIES *
8.1 Expenses *
8.2 Environmental Matters. *
9. MISCELLANEOUS. *
9.1 Examination of Records; Financial Reporting. *
9.2 Term; Termination. *
9.3 Recourse to Security; Certain Waivers *
9.4 No Waiver by FINOVA *
9.5 Binding on Successor and Assigns *
9.6 Severability *
9.7 Amendments; Assignments *
9.8 Integration *
9.9 Survival *
9.10 Evidence of Obligations *
9.11 Loan Requests *
9.12 Notices *
9.13 Brokerage Fees *
9.14 Disclosure *
9.15 Publicity *
9.16 Captions *
9.17 Injunctive Relief *
9.18 Counterparts; Facsimile Execution *
9.19 Construction *
9.20 Time of Essence *
9.21 Limitation of Actions *
9.22 Liability *
9.23 Notice of Breach by FINOVA *
9.24 Application of Insurance Proceeds *
9.25 Power of Attorney *
9.26 Governing Law; Waivers *
9.27 Mutual Waiver of Right to Jury Trial *
9.28 Lien Termination *
Exhibits
Exhibit A - Reporting Requirements
Exhibit 4.1 - Closing Agenda
Exhibit 5.5 - Intellectual Property
Exhibit 5.7 - Litigation
Exhibit 5.16 - Borrower Locations
Exhibit 6.1.16 - Bank Accounts
Exhibit 6.2.5 - Existing Guaranties
Exhibit 6.2.11 - Indebtedness
Exhibit 6.2.17 - Permitted Encumbrances
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT (collectively with the Schedule to Loan
Agreement (the "Schedule") attached hereto, the "Agreement") dated
the date set forth on the cover page, is entered into by and between the borrower named on the cover
page (jointly and severally, the "Borrower"), whose address is set forth on the cover page
and FINOVA Capital Corporation ("FINOVA"), whose address is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
DEFINITIONS.
Defined Terms
. As used in this Agreement, the following terms have the definitions set
forth below:
"Abbott" means ▇▇▇▇▇▇ Laboratories Inc., an Illinois
corporation.
"Additional Sums" has the meaning set forth in Section 2.9(a)
hereof.
"Affiliate" means any Person controlling, controlled by or under
common control with any other Person. For purposes of this definition, "control" means
the possession, directly or indirectly, of the power to direct or cause direction of the management
and policies of any Person, whether through ownership of common or preferred stock or other equity
interests, by contract or otherwise. Without limiting the generality of the foregoing, each of the
following shall be an Affiliate with respect to Borrower and/or any Subsidiary of Borrower: any
officer or director of Borrower or any Subsidiary of Borrower, any Material Shareholder (as defined
below), member or Subsidiary of Borrower, and any other Person with whom or which Borrower has
common Material Shareholders, officers or directors. As used herein, "Material
Shareholder" shall mean any Person owning or controlling, directly or indirectly, in excess of
10% of the equity interests of Borrower or any Subsidiary of Borrower.
"Agreement" has the meaning set forth in the preamble.
"Applicable Usury Law" has the meaning set forth in Section
2.9(b) hereof.
"Blocked Account(s)" means deposit accounts established for the
benefit of, and under the exclusive dominion and control of FINOVA pursuant to an arrangement with
such bank or financial institution as may be selected by Borrower and be acceptable to FINOVA.
"Business Day" means any day on which commercial banks in both
Los Angeles, California and Phoenix, Arizona are open for business.
"Capital Expenditures" means all expenditures made and
liabilities incurred in accordance with GAAP for the acquisition of any fixed asset or improvement,
replacement, substitution or addition thereto which has a useful life of more than one year and
including, without limitation, those arising in connection with Capital Leases.
"Capital Lease" means any lease of property by Borrower that, in
accordance with GAAP, should be capitalized for financial reporting purposes and reflected as a
liability on the balance sheet of Borrower.
"Cash Collateral" means cash and Cash Equivalents pledged to and
under the exclusive dominion and control of FINOVA pursuant to the terms of the Control
Agreement.
"Cash Equivalents" means (a) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States government or issued by any agency
thereof and backed by the full faith and credit of the United States, in each case maturing within
thirty (30) days from the date of acquisition; (b) certificates of deposit, time deposits,
eurodollar time deposits or overnight bank deposits having maturities of thirty (30) days or less
from the date of acquisition issued by any commercial bank organized under the laws of the United
States of America or any state thereof having combined capital and surplus of not less than
$500,000,000; (c) repurchase obligations of any commercial bank satisfying the requirements of
clause (b) of this definition, having a term of not more than thirty (30) days with respect to
securities issued or fully guaranteed or insured by the United States government; (d) shares of
money market mutual or similar funds which invest exclusively in assets satisfying the requirements
of clauses (a) through (c) of this definition; or (e) commercial paper of an issuer rated at least
A-1 by Standard and Poor's Ratings Services or P-1 by ▇▇▇▇▇'▇ Investors Service, Inc., or carrying
an equivalent rating by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally, and maturing within thirty
(30) days from the date of acquisition.
"Change of Control" means any of the following: (a) any person
or group of persons (within the meaning of the Securities Exchange Act of 1934, as amended) shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities
and Exchange Commission under the Securities Exchange Act of 1934, as amended) of 51% or more of the
issued and outstanding shares of capital Stock of Borrower having the right to vote for the election
of directors of Borrower under ordinary circumstances; (b) during any period of twelve consecutive
calendar months, individuals who at the beginning of such period constituted the board of directors
of Borrower (together with any new directors whose election by the board of directors of Borrower or
whose nomination for election by the stockholders of Borrower was approved by a vote of at least
two-thirds of the directors then still in office who either were directors at the beginning of such
period or whose elections or nomination for election was previously so approved) cease for any
reason other than death or disability to constitute a majority of the directors then in office, or
(c) except as provided in Section 6.2.20 hereof, Borrower shall cease to own and control at least
ninety-five percent (95%) of the economic and voting rights associated with all of the outstanding
capital Stock of any of its Subsidiaries.
"Closing Date" means the date of the initial advance made by
FINOVA pursuant to this Agreement.
"Closing Fee" has the meaning set forth in the Schedule.
"Code" means the Uniform Commercial Code as adopted and in
effect in the State of Arizona from time to time.
"Collateral" has the meaning set forth in Section 3.1
hereof.
"Collateral Monitoring Fee" has the meaning set forth in the
Schedule.
"Compliance Certificate" has the meaning set forth in Section
9.1(b) hereof.
"Control Agreement" means that certain Control Agreement among
Borrower, FINOVA and ▇▇▇▇▇ Fargo Bank, N.A. dated as or about the date hereof, as amended from time
to time, pursuant to which Borrower shall, from time to time, deposit and maintain Cash Collateral
pledged to and under the exclusive dominion and control of FINOVA to permit Borrower to receive
Revolving B Credit Loans pursuant to Section 2.2.
"Co-Promotion Agreement" means that certain Co-Promotion
Agreement dated May 7, 1999 between Abbott and Borrower.
"DDN" means DDN/Obergfel, LLC, a Wisconsin limited liability
company.
"DDN Distribution Agreement" means that certain Distribution
Agreement dated as of January 19, 2000 between DDN and Borrower.
"DDN Receivables" has the meaning set forth in Section
2.10(b).
"Deposit Accounts" has the meaning set forth in Section 9105 of
the Code.
"Dilution" means with respect to Trade Receivables as a class,
based on the experience of the immediately prior twelve (12) months, the result of dividing the
dollar amount of (a) non-cash Receivables reductions, such as bad debt write-downs, discounts
outside of the ordinary course of business, advertising outside of the ordinary course of business,
returns, promotions, credits, or other dilution with respect to the Receivables by (b) Borrower's
gross sales with respect to all Receivables (excluding extraordinary items) plus the dollar amount
of clause (a).
"Dilution Reserve" means a Loan Reserve established by FINOVA in
an amount equal to the product of (x) the amount by which Dilution in respect of Borrower's Trade
Receivables exceeds five percent (5%) (expressed as a percentage with one decimal place), based upon
a twelve (12) month rolling average, or such other period as the Borrower and FINOVA shall agree,
with such amount to be calculated based upon the results of each audit examination by FINOVA,
multiplied by (y) the aggregate of Borrower's Eligible Trade Receivables then outstanding (based
upon Borrower's monthly Collateral reports); which amount shall reduce the amount of Revolving A
Credit Loans which would otherwise be available to Borrower under the formula set forth in Section
2.2 of the Schedule to this Agreement.
"Dominion Account(s)" means depository accounts in the name of
FINOVA at a bank or financial institution maintained by FINOVA for the receipt of collateral
proceeds and payments.
"Earnings Before Interest, Taxes, Depreciation and Amortization"
for any fiscal period of Borrower means the net income of Borrower for such fiscal period, plus
interest expense, depreciation and amortization and provision for income taxes for such fiscal
period, and minus non-recurring miscellaneous income and expenses, all calculated in accordance with
GAAP.
"▇▇▇ ▇▇▇▇▇" means ▇▇▇ Lilly and Company, an Indiana
corporation.
"Eligible Inventory" means Inventory which FINOVA, in its
Permitted Discretion, deems Eligible Inventory, based on such considerations as FINOVA may from time
to time deem appropriate. Without limiting the generality of the foregoing, no Inventory shall be
Eligible Inventory unless, in FINOVA's Permitted Discretion, such Inventory (i) consists of raw
materials and finished goods, in good, new and salable condition which have at least six months of
usable shelf life prior to the expiration date for use for manufacturing Borrower's products or sale
for ultimate consumer use, (ii) is not obsolete, unmerchantable, slow moving, returned, damaged
and/or defective, (iii) is not comprised of work in process, packaging materials or supplies; (iv)
meets all standards imposed by any Governmental Authority; (v) conforms in all respects to the
warranties and representations set forth herein; (vi) is at all times subject to FINOVA's duly
perfected, first priority security interest; and (v) is situated at a location for which Borrower
has delivered to FINOVA an executed landlord, bailee or related agreement, in form and substance
acceptable to FINOVA. Notwithstanding the foregoing or anything to the contrary in this Agreement,
in no event shall (I) Inventory situated at any Pharmacy Operation location or any location operated
by Abbott or any of its Subsidiaries be Eligible Inventory; (II) any finished goods Inventory
consisting of pharmaceutical products which have not yet received Regulatory Approval (provided that
upon receipt of such Regulatory Approval, such Inventory will no longer be excluded under this
clause II); or (III) Inventory consisting of any SangCya product be Eligible Inventory unless FINOVA
shall have received an agreement with Abbott deemed acceptable to FINOVA in its sole discretion
which provides FINOVA and its agents and/or assignees with a royalty free license and right to sell
and/or dispose of all SangCya product and related inventory without payment to or restriction by
Abbott or its assignees.
"Eligible Receivable(s)" means collectively, the Eligible Trade
Receivables and individually, any Eligible Trade Receivable.
"Eligible Trade Receivables" means Trade Receivables arising in
the ordinary course of Borrower's business from the sale of goods or rendition of services, which
FINOVA, in its Permitted Discretion, shall deem eligible based on such considerations as FINOVA may
from time to time deem appropriate. Without limiting the foregoing, a Trade Receivable shall not be
deemed to be an Eligible Receivable if (i) the account debtor has failed to pay the Trade Receivable
within a period of ninety (90) days after invoice date, to the extent of any amount remaining unpaid
after such period; (ii) the account debtor has failed to pay more than 25% of all outstanding Trade
Receivables owed by it to Borrower within ninety (90) days after invoice date; (iii) the account
debtor is an Affiliate of Borrower; (iv) the goods relating thereto are placed on consignment,
guaranteed sale, "▇▇▇▇ and hold," "COD" or other terms pursuant to which payment
by the account debtor may be conditional; (v) the account debtor is not located in the United States
or Ontario, Canada, unless the Trade Receivable is supported by a letter of credit or other form of
guaranty or security, in each case in form and substance satisfactory to FINOVA; (vi) the account
debtor is the United States or any department, agency or instrumentality thereof or any State, city
or municipality of the United States, except to the extent that the requirements of Section 6.1.12
have been satisfied; provided, that notwithstanding the foregoing, no Trade Receivable owed
to Borrower by the Veterans Administration will be deemed ineligible for failure to comply with the
provisions of Section 6.1.12 hereof for a period of sixty (60) days from the Closing Date, it being
understood and agreed that after such sixty (60) day period, all such Veterans Administration Trade
Receivables shall become ineligible unless and until Borrower shall have so complied with the
provisions of Section 6.1.12 hereof with respect to such Veterans Administration Trade Receivables;
(vii) Borrower is or may become liable to the account debtor for goods sold or services rendered by
the account debtor to Borrower; (viii) the account debtor's total obligations to Borrower exceed 15%
of all Eligible Trade Receivables, to the extent of such excess; provided however, that with
respect to each of McKessonHBOC, Bindley Western Industries, Inc. and Cardinal Health, Inc., such
account debtor's total obligations to Borrower exceed 45% (or such higher percentage as FINOVA in
its sole discretion shall determine) of all Eligible Trade Receivables, to the extent of such excess
and that with respect to each of Bergen ▇▇▇▇▇▇▇▇ Corporation and Amerisource Corporation, such
account debtor's total obligations to Borrower exceed 25% (or such higher percentage as FINOVA in
its sole discretion shall determine) of all Eligible Trade Receivables, to the extent of such
excess; (ix) the account debtor disputes liability or makes any claim with respect thereto (up to
the amount of such liability or claim), or is subject to any insolvency or bankruptcy proceeding, or
becomes insolvent, fails or goes out of a material portion of its business; (x) the amount thereof
consists of late charges or finance charges; (xi) the amount thereof consists of a credit balance
more than ninety (90) days past due; (xii) the face amount thereof exceeds $250,000, unless
accompanied by evidence of shipment of the goods relating thereto satisfactory to FINOVA in its
Permitted Discretion; (xiii) the invoice constitutes a progress billing on a project not yet
completed, except that the final billing at such time as the matter has been completed and delivered
to the customer may be deemed an Eligible Trade Receivable; (xiv) the amount thereof is not yet
represented by an invoice or ▇▇▇▇ issued in the name of the applicable account debtor; (xv) the
amount thereof is denominated in or payable with any currency other than U.S. Dollars; (xvi) such
Trade Receivable is not at all times subject to FINOVA's duly perfected first priority security
interest; or (xvii) the account debtor is Abbott or any of its Subsidiaries.
"Equipment" means all of Borrower's present and hereafter
acquired machinery, molds, machine tools, motors, furniture, equipment, furnishings, fixtures, trade
fixtures, motor vehicles, tools, parts, dyes, jigs, goods and other tangible personal property
(other than Inventory) of every kind and description used in Borrower's operations or owned by
Borrower and any interest in any of the foregoing, and all attachments, accessories, accessions,
replacements, substitutions, additions or improvements to any of the foregoing, wherever
located.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the regulations thereunder.
"ERISA Affiliate" means each trade or business (whether or not
incorporated and whether or not foreign) which is or may hereafter become a member of a group of
which Borrower is a member and which is treated as a single employer under ERISA Section 4001(b)(1),
or IRC Section 414.
"Event of Default" means any of the events set forth in Section
7.1 of this Agreement.
"Examination Fee" has the meaning set forth in the Schedule.
"Excess Availability" means, as of the date of determination
thereof, the amount by which the average daily total principal balance of the Revolving Credit Loans
which Borrower would have been permitted to have outstanding over the prior 30 days (and as of the
proposed date of any subject payment), based on the formulas and reserves set forth in the Schedule,
exceeds the sum of the Revolving Credit Loans then actually outstanding, such excess then being
reduced by an amount necessary to provide for the payment of all accounts payable of Borrower which
are more than 30 days past due date and all book overdrafts.
"FDA" means the U.S. Food and Drug Administration and any
successor thereto.
"FINOVA Affiliate" has the meaning set forth in Section 9.22
hereof.
"Holding Account" means an account established in the name of
Borrower at a bank or financial institution acceptable to FINOVA with respect to which FINOVA,
Borrower and such bank or financial institution shall have entered into a depository account
agreement or similar control agreement which shall provide FINOVA a security interest in such
account and all amounts on deposit therein and, following the occurrence of any Event of Default,
permit FINOVA to assume exclusive dominion and control over such account.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time as set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of Certified Public
Accountants and the statements and pronouncements of the Financial Accounting Standards Boards which
are applicable to the circumstances as of the date of determination consistently applied, except
that, for the financial covenants set forth in this Agreement, GAAP shall be determined on the basis
of such principles in effect on the date hereof and consistent with those used in the preparation of
the audited financial statements delivered to FINOVA prior to the date hereof.
"General Intangibles" means all general intangibles of Borrower,
whether now owned or hereafter created or acquired by Borrower, including, without limitation, all
choses in action, causes of action, corporate or other business records, Deposit Accounts,
inventions, designs, drawings, blueprints, Trademarks, Copyrights, Licenses and Patents, names,
trade secrets, goodwill, copyrights, registrations, licenses, franchises, customer lists, security
and other deposits, rights in all litigation presently or hereafter pending for any cause or claim
(whether in contract, tort or otherwise), and all judgments now or hereafter arising therefrom, all
claims of Borrower against FINOVA, rights to purchase or sell real or personal property, rights as a
licensor or licensee of any kind, royalties, telephone numbers, proprietary information, purchase
orders, and all insurance policies and claims (including without limitation credit, liability,
property and other insurance), tax refunds and claims, computer programs, discs, tapes and tape
files, claims under guaranties, security interests or other security held by or granted to Borrower
to secure payment of any of the Receivables by an account debtor, all contractual rights, all rights
under Provider Agreements, all rights to indemnification and all other intangible property of every
kind and nature (other than Receivables).
"Governmental Authority" means any nation or government,
governmental agency or instrumentality, state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining
to government; including, without limitation, HCFA and state Medicaid administrative agencies.
"Governmental Receivables" shall mean Receivables where the
Payor is the United States of America, a state, or any agency or instrumentality thereof which is
obligated to make any payments with respect to Medicare, Medicaid, or other Receivables representing
amounts owing under any other program established by federal or state law which requires that
payments for healthcare services or goods rendered to individuals be made to the providers of such
services (including CHAMPUS as set forth in Title 10 U.S.C. Section 1071 et. seq., and
the program set forth in Title 38 U.S.C. Section 1713).
"Indebtedness" means all of Borrower's present and future
obligations, liabilities, debts, claims and indebtedness, contingent, fixed or otherwise, however
evidenced, created, incurred, acquired, owing or arising, whether under written or oral agreement,
operation of law or otherwise, and includes, without limiting the foregoing (i) the Obligations,
(ii) obligations and liabilities of any Person secured by a lien, claim, encumbrance or security
interest upon property owned by Borrower, even though Borrower has not assumed or become liable
therefor, (iii) obligations and liabilities created or arising under any lease (including Capital
Leases) or conditional sales contract or other title retention agreement with respect to property
used or acquired by Borrower, even though the rights and remedies of the lessor, seller or lender
are limited to repossession, (iv) all unfunded pension fund obligations and liabilities and (v)
deferred tax liabilities.
"Indebtedness for Borrowed Money" means without duplication, all
Indebtedness: (i) in respect of borrowed money (including, without limitation, pursuant to the Loan
Documents or any Capital Leases), (ii) evidenced by a note, debenture, or other like written
obligation to pay money (including, without limitation, all interest on the Obligations), (iii) for
the deferred purchase price of property (other than trade payables arising in the ordinary course of
business), or (iv) in respect of obligations under conditional sales or other title retention
agreements; and all guaranties of any or all of the foregoing.
"Initial Term" has the meaning set forth on the Schedule.
"Insurer" means any Person which in the ordinary course of its
business or activities agrees to pay for healthcare goods and services received by individuals,
including, without limitation, a commercial insurance company, a non-profit insurance company (such
as a Blue Cross/Blue Shield entity), an employer or union which self-insures for employee or member
health insurance, a prepaid healthcare organization, a preferred provider organization, group
purchasing organization and a health maintenance organization. "Insurer" includes,
without limitation, insurance companies issuing health, personal injury, worker's compensation or
other types of insurance, corporations, hospitals and third party intermediaries but does not
include any individual guarantors or employee benefit plans.
"Inventory" means all of Borrower's now owned and hereafter
acquired goods, merchandise or other personal property, wherever located, to be furnished under any
contract of service or held for sale or lease, all raw materials, work in process, finished goods
and materials and supplies of any kind, nature or description which are or might be used or consumed
in Borrower's business or used in connection with the manufacture, packing, shipping, advertising,
selling or finishing of such goods, merchandise or other personal property, and all documents of
title or other documents representing them.
"Inventory Loans" has the meaning set forth in the Schedule.
"IRC" means the Internal Revenue Code of 1986, as amended, and
the regulations thereunder.
"Lien" means any mortgage, pledge, assignment, lien, charge,
encumbrance or security interest of any kind, or the interest of a vendor or lessor under any
conditional sale agreement, Capitalized Lease or title retention agreement.
"Liquidity" means, as of the date of determination thereof, the amount by
which the sum of (A) the average daily total principal balance of the Revolving Credit Loans which
Borrower would have been permitted to have outstanding over the prior thirty (30) days (and as of
the proposed date of any subject payment), based on the formulas and reserves set forth in this
Agreement, and (B) all Unencumbered Cash of Borrower, exceeds the sum of the Revolving Credit Loans
then actually outstanding, such excess then being reduced by an amount necessary to provide for the
payment of all accounts payable of Borrower which are more than thirty (30) days past due date and
all book overdrafts.
"Loan Documents" means, collectively, this Agreement, any note
or notes executed by Borrower and payable to FINOVA, and any other present or future agreement
entered into in connection with this Agreement, together with all alterations, amendments, changes,
extensions, modifications, refinancings, refundings, renewals, replacements, restatements, or
supplements, of or to any of the foregoing.
"Loan Party" means Borrower and each other Affiliate of Borrower
party (other than FINOVA) to any Loan Document.
"Loan Reserves" means, as of any date of determination, such
amounts as FINOVA may from time to time establish and revise in its Permitted Discretion reducing
the amount of Revolving Credit Loans which would otherwise be available to Borrower under the
lending formula(s) provided in the Schedule: (a) to reflect events, conditions, contingencies or
risks which, as determined by FINOVA in good faith, do or may materially affect either (i) the
Collateral or any other property which is security for the Obligations or its value, (ii) the
assets, business or prospects of Borrower or any Loan Party or (iii) the security interests and
other rights of FINOVA in the Collateral (including the enforceability, perfection and priority
thereof) or (b) to reflect FINOVA's good faith belief that any collateral report or financial
information furnished by or on behalf of Borrower or any Loan Party to FINOVA is or may have been
materially incomplete, inaccurate or misleading in any material respect or (c) in respect of any
state of facts which FINOVA determines in good faith constitutes an Event of Default or may, with
notice or passage of time or both, constitute an Event of Default. Without in any way limiting the
foregoing, the Loan Reserves shall include, without limitation, the Dilution Reserve and the Special
Reserve.
"Loan Year" means each twelve month period commencing on the
Closing Date.
"Loans" has the meaning set forth in Section 2.2 hereof.
"Lock Box" has the meaning set forth in Section 2.10(b)
hereof.
"Lock Box Agreement" means an agreement between FINOVA and a
financial institution acceptable to FINOVA governing a lockbox (and any related depository account)
titled in the name of Borrower which shall provide FINOVA with a security interest in and exclusive
domain and control over such lockbox (and/or any related depository account) and all cash and other
items received or deposited therein. The terms of such Lock Box Agreement shall provide, inter
alia, that until the occurrence of an Event of Default, FINOVA shall direct that all cash
proceeds from such lockbox (and/or any related depository account) to be transferred to a Holding
Account; provided that FINOVA, in its sole discretion, may, without notice, change such
direction at any time after the occurrence of an Event of Default.
"Material Judgement" shall mean any final judgment rendered
against Borrower or any of its Subsidiaries which has not been bonded or stayed pending appeal and
which (i) requires the payment of more than $250,000 by Borrower or its Subsidiaries (after
deducting therefrom all amounts for which, in the reasonable opinion of FINOVA, applicable insurance
coverage is then payable) and is not satisfied in full within thirty (30) days after entry, (ii)
materially adversely affects the priority or value of FINOVA's liens on the Collateral, (iii) awards
equitable relief enjoining or materially restricting Borrower's ability to acquire, produce and/or
distribute any of its products, or (iv) results in a material and adverse affect on Borrower's and
its Subsidiaries business, assets, operations, prospects or condition (financial or otherwise),
taken as a whole.
"Maximum Interest Rate" has the meaning set forth in Section
2.9(b) hereof.
"Minimum Interest Charge" has the meaning set forth in the Schedule.
"Minimum Liquidity Amount" shall mean for any date of determination an
amount equal to 120% of the amount of Liquidity of Borrower required for compliance with the
Liquidity covenant set forth in Section 6.1.13 of the Schedule to this Agreement.
"Multiemployer Plan" means a "multiemployer plan" as
defined in ERISA Sections 3(37) or 4001(a)(3) or IRC Section 414(f) which covers employees of
Borrower or any ERISA Affiliate.
"Obligations" means all present and future loans, advances,
debts, liabilities, obligations, covenants, duties and indebtedness at any time owing by Borrower to
FINOVA, whether evidenced by this Agreement, any note or other instrument or document, whether
arising from an extension of credit, opening of a letter of credit, banker's acceptance, loan,
guaranty, indemnification or otherwise, whether direct or indirect (including, without limitation,
those acquired by assignment and any participation by FINOVA in Borrower's debts owing to others),
absolute or contingent, due or to become due, including, without limitation, all interest, charges,
expenses, fees, attorney's fees, expert witness fees, Examination Fee, Collateral Monitoring Fee,
Closing Fee, Termination Fee and any other fees or sums chargeable to Borrower hereunder or under
any other agreement with FINOVA.
"Overadvance" has the meaning set forth in Section 2.3.
"Overline" has the meaning set forth in Section 2.3.
"Payor" shall mean any Insurer, any Governmental Authority and
any other Person that is responsible for payment for all or any portion of a Receivable.
"PBGC" means the Pension Benefit Guarantee Corporation.
"Permitted Discretion" means FINOVA's judgment exercised in good
faith based upon its consideration of any factor which FINOVA believes in good faith: (i) will or
could materially adversely affect the value of any Collateral, the enforceability or priority of
FINOVA's liens thereon or the amount which FINOVA would be likely to receive (after giving
consideration to delays in payment and costs of enforcement) in the liquidation of such Collateral;
(ii) suggests that any collateral report or financial information delivered to FINOVA by any Person
on behalf of the Borrower is incomplete, inaccurate or misleading in any material respect; (iii)
materially increases the likelihood of a bankruptcy, reorganization or other insolvency proceeding
involving the Borrower, any Loan Party or any of the Collateral, or (iv) creates or reasonably could
be expected to create an Event of Default. In exercising such judgment, FINOVA may consider such
factors already included in or tested by the definition of Eligible Receivables or Eligible
Inventory, as well as any of the following: (i) the financial and business climate of the
Borrower's industry and general macroeconomic conditions, (ii) changes in collection history
and dilution with respect to the Receivables, (iii) changes in demand for, and pricing of,
Inventory, (iv) changes in any concentration of risk with respect to Receivables and/or
Inventory, and (v) any other factors that change the credit risk of lending to the Borrower on
the security of the Receivables and Inventory. The burden of establishing lack of good faith
hereunder shall be on the Borrower.
"Permitted Encumbrance" means (i) Liens existing as of the
Closing Date set forth on Exhibit 6.2.17 hereto; (ii) Liens created after the date
hereof by conditional sale or other title retention agreements (including Capital Leases) or in
connection with purchase money Indebtedness with respect to Equipment acquired by any Borrower in
the ordinary course of business in which the vendor of such Equipment finances at least 75% of the
invoiced cost of such Equipment and involving the incurrence of an aggregate amount of purchase
money Indebtedness and Capital Lease Obligations of not more than $250,000 outstanding at any
one time for all such Liens (provided that such Liens attach only to the assets subject to such
purchase money debt and such Indebtedness is incurred within sixty (60) days following such purchase
and does not exceed 100% of the purchase price of the subject assets); and (iii) any other Liens or
encumbrances which are expressly permitted by Section 3.10(a) hereof or which may be permitted
by FINOVA in writing from time to time.
"Permitted Liens" means any of the following Liens: (i) Liens
in the Collateral granted to FINOVA; (ii) Liens for taxes or assessments and similar charges, which
either are (a) not delinquent or (b) being contested diligently and in good faith by appropriate
proceedings, and as to which Borrower has set aside reserves on its books in accordance with GAAP;
(iii) statutory Liens, such as mechanic's, materialman's, warehouseman's, carrier's or other like
Liens, incurred in good faith in the ordinary course of business, provided that the underlying
obligations relating to such Liens are paid in the ordinary course of business, or are being
contested diligently and in good faith by appropriate proceedings and as to which Borrower has set
aside reserves on its books in accordance with GAAP, or the payment of which obligations are
otherwise secured in a manner satisfactory to FINOVA; (iv) zoning ordinances, easements, licenses,
reservations, provisions, covenants, conditions, waivers or restrictions on the use of property and
other title exceptions, in each case, that are acceptable to FINOVA; (v) Liens to secure payment of
insurance premiums (a) to be paid in accordance with applicable laws in the ordinary course of
business relating to payment of worker's compensation, or (b) that are required for the
participation in any fund in connection with worker's compensation, unemployment insurance, old-age
pensions or other social security programs; and (vi) Permitted Encumbrances.
"Person" means any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association, corporation, limited liability
company, government, or any agency or political division thereof, or any other entity.
"Pharmacy Operation" means Borrower's "Transplant
Pharmacy" operation which provides retail and mail-order distribution of pharmaceutical and
related products and services and shall include the "PRA Stat" and "Crea Stat"
product lines.
"Pharmacy Subsidiary" has the meaning set forth in Section 6.2.20(i)
hereof.
"Plan" means any plan described in ERISA Section 3(2) maintained
for employees of Borrower or any ERISA Affiliate, other than a Multiemployer Plan.
"Pledgors" has the meaning set forth in Section 4.1(cc)
hereof.
"Prepared Financials" means the balance sheets of Borrower as of
December 31, 1998, and as of each subsequent date on which audited balance sheets are delivered to
FINOVA from time to time hereunder, and the related statements of operations, changes in
stockholders' equity and changes in cash flow for the periods ended on such dates.
"Prime Rate" has the meaning set forth in the Schedule.
"Prohibited Transaction" means any transaction described in
ERISA Section 406 which is not exempt by reason of ERISA Section 408, and any transaction described
in IRC Section 4975(c) which is not exempt by reason of IRC Section 4062(e).
"Provider Agreements" means all agreements, certifications,
reimbursement contracts, and other contracts and agreements required for or relating to the sale,
distribution and/or provision of Borrower's products and/or services, whether now existing or
hereafter issued to Borrower by, and/or entered into by Borrower with any Person.
"Receivable Loans" has the meaning set forth on the
Schedule.
"Receivables" or "Receivable" means all of
Borrower's now owned and hereafter acquired accounts (whether or not earned by performance),
proceeds of any letters of credit naming Borrower as beneficiary, contract rights, chattel paper,
instruments, documents and all other forms of obligations at any time owing to Borrower, all
guaranties and other security therefor, whether secured or unsecured, all merchandise returned to or
repossessed by Borrower, and all rights of stoppage in transit and all other rights or remedies of
an unpaid vendor, lienor or secured party. Receivables includes all accounts and general
intangibles, all rights, remedies, guaranties, security interests and liens, all records (other than
medical records, unless patient consents with respect thereto have been received) and other property
evidencing any and all proceeds which relating to or are associated with such Receivables subject to
the confidentiality rights under applicable law.
"Regulated Inventory" shall have the meaning set forth in Section 7.3
hereof.
"Regulatory Approval" means the FDA approval of the Abbreviated
New Drug Application required by the FDA to commercially market a pharmaceutical product in the
United States.
"Renewal Term" has the meaning set forth on the Schedule.
"Reportable Event" means a reportable event described in ERISA
Section 4043 or the regulations thereunder for which notice to the PBGC is not waived under the
applicable regulations, a withdrawal from a plan described in ERISA Section 4063, or a cessation of
operations described in ERISA Section 4062(e).
"Retained Rights" means, with respect to any Governmental
Receivable (except to the extent the obligor thereon may be required, pursuant to a court-ordered
assignment which is valid, binding and enforceable under applicable Medicare and Medicaid laws,
rules and regulations to make payments directly to a Person other than Borrower as the provider of
the services giving rise thereto), the rights of Borrower to collect and receive direct payment
from the Governmental Authority obligated in respect of such Governmental Receivable and, as
applicable, to enforce the claim giving rise thereto against any federal Governmental Authority;
provided, however, that even in the absence of such a court-ordered assignment, the
"Retained Rights" shall not include the right of Borrower to retain the
collections on any Government Receivable once payment thereon has been made to Borrower as the
provider of the services giving rise thereto or to a lock-box or account under Borrower's dominion
and control.
"Revolving A Credit Loans" has the meaning set forth in the
Schedule.
"Revolving A Credit Limit" has the meaning set forth in the
Schedule.
"Revolving A Interest Rate" has the meaning set forth in the
Schedule.
"Revolving B Credit Loans" has the meaning set forth in the
Schedule.
"Revolving B Credit Limit" has the meaning set forth in the
Schedule.
"Revolving B Interest Rate" has the meaning set forth in the
Schedule.
"Revolving Credit Loans" shall mean collectively, the Revolving
A Credit Loans and the Revolving B Credit Loans and, individually, any Revolving A Credit Loan or
any Revolving B Credit Loans.
"Rx Receivable" means a Receivable generated by Borrower
pursuant to its Pharmacy Operation.
"Schedule" has the meaning set forth in the preamble.
"Self-Service Storage Facility" means the self-service storage facility
operated by Door to Door Storage, Inc. in Union City, California where certain of the Collateral is
stored.
"Special Reserve" means (i) $5,000,000 at all times prior to the
date on which Gengraf receives approval by the Federated Drug Administration ("FDA") for
distribution in the United States (or, if earlier, the date on which Sang 2000 receives such FDA
approval), (ii) $1,000,000 during the period from and after the date Gengraf receives FDA approval
for distribution in the United States (or, if earlier, the date on which Sang 2000 receives such FDA
approval), until FINOVA receives Borrower's financial statements evidencing that Borrower's
Annualized EBITDA tested on a quarterly basis equals or exceeds $3,500,000 (such date, the "End
Date") and (iii) zero ($0) from and after the End Date.
"Start Date" has the meaning set forth in the Schedule.
"Stock" shall mean all shares, options, warrants, general or
limited partnership interests or other equivalents (regardless of how designated) of or in a
corporation, partnership or equivalent entity whether voting or nonvoting, including common stock,
preferred stock or any other "equity security" (as such term is defined in Rule 3a11-1 of
the General Rules and Regulations promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended).
"Stock Pledge Agreements" has the meaning set forth in Section
4.1(cc) hereof.
"Subordinated Debt" means unsecured liabilities of Borrower
(including, without limitation, unsecured debt securities convertible into shares of common equity
of Borrower), (a) the repayment of which is subordinated to the payment and performance of the
Obligations, pursuant to a subordination arrangement acceptable to FINOVA, (b) having no principal
amortization or sinking fund requirements; (b) having an expiry date not earlier than five (5) years
from the date of issuance thereof; and (d) having terms and conditions which provide (x) the holders
thereof only a default upon acceleration of the Obligations (but not upon the occurrence of a mere
Event of Default) and (y) financial covenants which, if similar to those set forth in this
Agreement, shall be set a levels at least 15% less restrictive than the levels set forth in this
Agreement (it being understood that the foregoing restriction will not apply to the other financial
covenants proposed in such Subordinated Debt which are not substantially similar to the financial
covenants set forth in this Agreement).
"Subsidiary" shall mean, with respect to any Person, (a) any
corporation of which an aggregate of more than fifty percent (50%) of the outstanding Stock having
ordinary voting power to elect a majority of the board of directors of such corporation
(irrespective of whether, at the time, Stock of any other class or classes of such corporation shall
have or might have voting power by reason of the happening of any contingency) is at the time,
directly or indirectly, owned legally or beneficially by such Person and/or one or more Subsidiaries
of such Person, or with respect to which any such Person has the right to vote or designate the
vote of fifty percent (50%) or more of such Stock whether by proxy, agreement, operation of law or
otherwise, and (b) any partnership or limited liability company in which such Person and/or one or
more Subsidiaries of such Person shall have an interest (whether in the form of voting or
participation in profits or capital contribution) of more than fifty percent (50%) or of which any
such Person is a general partner or may exercise the powers of a general partner.
"Termination Fee" has the meaning set forth in Section 9.2(d)
hereof.
"Total Facility" has the meaning set forth in Section 2.1
hereof.
"Trade Receivable" means any Receivable not constituting a Rx
Receivable or a Governmental Receivable.
"Trademarks, Copyrights, Licenses and Patents" means, as to
Borrower or any of its Subsidiaries, all of such Person's right, title and interest in and to,
whether now owned or hereafter acquired: (i) trademarks, trademark registrations, trade names, trade
name registrations, and trademark or trade name applications, including without limitation such as
are listed on the Schedule or any of the other Loan Documents, as the same may be amended from time
to time, and (a) renewals thereof, (b) all income, royalties, damages and payments now and hereafter
due and/or payable with respect thereto, including without limitation, payments under all licenses
entered into in connection therewith and damages and payments for past or future infringements
thereof, (c) the right to ▇▇▇ for past, present and future infringements thereof, (d) all rights
corresponding thereto throughout the world, and (e) the goodwill of the business operated by such
Person connected with and symbolized by any trademarks or trade names; (ii) copyrights, copyright
registrations and copyright applications, including without limitation such as are listed on the
Schedule attached hereto and made a part hereof, as the same may be amended from time to time, and
(a) renewals thereof, (b) all income, royalties, damages and payments now and hereafter due and/or
payable with respect thereto, including without limitation, damages and payments for past or future
infringements thereof, (c) the right to ▇▇▇ for past, present and future infringements thereof, and
(d) all rights corresponding thereto throughout the world; (iii) license agreements, including
without limitation such as are listed on the Schedule attached hereto and made a part hereof, and
the right to prepare for sale, sell and advertise for sale any inventory now or hereafter owned by
such Person and now or hereafter covered by such licenses; and (iv) patents and patent applications,
registered or pending, including without limitation such as are listed on the Schedule or any of the
other Loan Documents, as the same may be amended from time to time, and (a) all reissues, divisions,
continuations, renewals, extensions and continuations-in-part thereof, (b) all income, royalties,
shop rights, damages and payments with respect thereto, including without limitation, payments under
all licenses entered into in connection therewith and damages and payments for past or future
infringements thereof, (c) the right to ▇▇▇ for past, present and future infringements thereof, and
(d) all rights corresponding thereto throughout the world.
"Trigger Event(s)" means the occurrence of any Event of Default
or any event with the passage of time or the giving of notice or both would constitute an Event of
Default.
"Unused Line Fee" has the meaning set forth in the Schedule.
"Unencumbered Cash" shall mean cash or Cash Equivalents of
Borrower which are not subject to any Lien in favor of any Person or restricted in use in any
way.
Other Terms.
All accounting terms used in this Agreement, unless otherwise indicated, shall
have the meanings given to such terms in accordance with GAAP. All other terms contained in this
Agreement, unless otherwise indicated, shall have the meanings provided by the Code, to the extent
such terms are defined therein.
LOANS;
INTEREST RATE AND OTHER CHARGES.
Total Facility
. Upon the terms and conditions set forth herein, FINOVA shall, upon
Borrower's request, make advances to Borrower from time to time in an aggregate outstanding
principal amount not to exceed the Total Facility amount (the "Total Facility") set
forth on the Schedule hereto, subject to deduction for Loan Reserves as FINOVA deems proper from
time to time in its Permitted Discretion, and less amounts FINOVA may be obligated to pay in the
future on behalf of Borrower; provided, however, in no event shall any Revolving A
Credit Loans be available to Borrower unless (i) Borrower shall have at all times Revolving B Credit
Loans outstanding in a principal amount of not less than Seven Million Five Hundred Thousand Dollars
($7,500,000), and (ii) Borrower shall have satisfied the conditions set forth in Section 1 of
"Additional Provisions" in the Schedule. The Schedule is an integral part of this Agreement and all
references to "herein", "herewith" and words of similar import shall for all
purposes be deemed to include the Schedule.
Loans
. Advances under the Total Facility ("Loans" and
individually, a "Loan") shall be comprised of the amounts shown on the
Schedule.
Overlines; Overadvances
. If at any time or for any reason the outstanding amount of advances
extended or issued pursuant hereto exceeds any of the dollar limitations
("Overline") or percentage limitations ("Overadvance") in the
Schedule, then Borrower shall, upon FINOVA's demand, immediately pay to FINOVA, in cash, the full
amount of such Overline or Overadvance which, at FINOVA's option, may be applied to reduce the
outstanding principal balance of the Loans or any other Obligations. Without limiting Borrower's
obligation to repay to FINOVA on demand the amount of any Overline or Overadvance, Borrower agrees
to pay FINOVA interest on the outstanding principal amount of any Overline or Overadvance, on
demand, at the rate set forth on the Schedule and applicable to the Revolving Credit Loans.
[Intentionally Omitted]
Loan Account
. All advances made hereunder shall be added to and deemed part of the
Obligations when made. FINOVA may from time to time charge all Obligations of Borrower to
Borrower's loan account with FINOVA.
Interest; Fees
. Borrower shall pay FINOVA interest on the daily outstanding balance of the
Obligations at the per annum rate set forth on the Schedule. Borrower shall also pay FINOVA the
fees set forth on the Schedule.
Default Interest Rate
. Upon the occurrence and during the continuation of an Event of Default,
Borrower shall pay FINOVA interest on the daily outstanding balance of the Obligations at a rate per
annum which is four percent (4%) in excess of the rate which would otherwise be applicable thereto
pursuant to the Schedule.
Examination Fee
. Borrower agrees to pay to FINOVA the Examination Fee in the amount set
forth on the Schedule in connection with each audit or examination of Borrower performed by FINOVA
prior to or after the date hereof. Without limiting the generality of the foregoing, Borrower shall
pay to FINOVA an initial Examination Fee in an amount equal to the amount set forth on the Schedule.
Such initial Examination Fee shall be deemed fully earned at the time of payment and due and payable
upon the closing of this transaction, and shall be deducted from any good faith deposit paid by
Borrower to FINOVA prior to the date of this Agreement.
Excess Interest.
The contracted for rate of interest of the loan contemplated hereby, without
limitation, shall consist of the following: (i) the interest rate set forth on the Schedule,
calculated and applied to the principal balance of the Obligations in accordance with the provisions
of this Agreement; (ii) interest after an Event of Default, calculated and applied to the
amount of the Obligations in accordance with the provisions hereof; and (iii) all Additional
Sums (as herein defined), if any. Borrower agrees to pay an effective contracted for rate of
interest which is the sum of the above-referenced elements. The Examination Fee, attorneys fees,
expert witness fees, Collateral Monitoring Fees, Closing Fees, Termination Fees, other fees,
charges, goods, things in action or any other sums or things of value paid or payable by Borrower,
whether pursuant to this Agreement or any other documents or instruments in any way pertaining to
this lending transaction, or otherwise with respect to this lending transaction, that under any
applicable law may be deemed to be interest with respect to this lending transaction, for the
purpose of any applicable law that may limit the maximum amount of interest to be charged with
respect to this lending transaction (collectively, the "Additional Sums"), shall be
payable by Borrower as, and shall be deemed to be, additional interest and for such purposes only,
the agreed upon and "contracted for rate of interest" of this lending transaction shall be
deemed to be increased by the rate of interest resulting from the inclusion of the Additional
Sums.
It is the intent of the parties to comply with the usury laws of the State of
Arizona (the "Applicable Usury Law"). Accordingly, it is agreed that
notwithstanding any provisions to the contrary in this Agreement, or in any of the documents
securing payment hereof or otherwise relating hereto, in no event shall this Agreement or such
documents require the payment or permit the collection of interest in excess of the maximum contract
rate permitted by the Applicable Usury Law (the "Maximum Interest Rate"). In the
event (a) any such excess of interest otherwise would be contracted for, charged or received from
Borrower or otherwise in connection with the loan evidenced hereby, or (b) the maturity of the
Obligations is accelerated in whole or in part, or (c) all or part of the Obligations shall be
prepaid, so that under any of such circumstances the amount of interest contracted for, shared or
received in connection with the loan evidenced hereby, would exceed the Maximum Interest Rate, then
in any such event (1) the provisions of this paragraph shall govern and control, (2) neither
Borrower nor any other Person now or hereafter liable for the payment of the Obligations shall be
obligated to pay the amount of such interest to the extent that it is in excess of the Maximum
Interest Rate, (3) any such excess which may have been collected shall be either applied as a credit
against the then unpaid principal amount of the Obligations or refunded to Borrower, at FINOVA's
option, and (4) the effective rate of interest shall be automatically reduced to the Maximum
Interest Rate. It is further agreed, without limiting the generality of the foregoing, that to the
extent permitted by the Applicable Usury Law; (x) all calculations of interest which are made for
the purpose of determining whether such rate would exceed the Maximum Interest Rate shall be made by
amortizing, prorating, allocating and spreading during the period of the full stated term of the
loan evidenced hereby, all interest at any time contracted for, charged or received from Borrower or
otherwise in connection with such loan; and (y) in the event that the effective rate of
interest on the loan should at any time exceed the Maximum Interest Rate, such excess interest that
would otherwise have been collected had there been no ceiling imposed by the Applicable Usury Law
shall be paid to FINOVA from time to time, if and when the effective interest rate on the loan
otherwise falls below the Maximum Interest Rate, to the extent that interest paid to the date of
calculation does not exceed the Maximum Interest Rate, until the entire amount of interest which
would otherwise have been collected had there been no ceiling imposed by the Applicable Usury Law
has been paid in full. Borrower further agrees that should the Maximum Interest Rate be increased
at any time hereafter because of a change in the Applicable Usury Law, then to the extent not
prohibited by the Applicable Usury Law, such increases shall apply to all indebtedness evidenced
hereby regardless of when incurred; but, again to the extent not prohibited by the Applicable Usury
Law, should the Maximum Interest Rate be decreased because of a change in the Applicable Usury Law,
such decreases shall not apply to the indebtedness evidenced hereby regardless of when
incurred.
Principal Payments; Proceeds of Collateral.
Principal Payments. Except where
evidenced by notes or other instruments issued or made by Borrower to FINOVA specifically containing
payment provisions which are in conflict with this Section 2.10 (in which event the conflicting
provisions of said notes or other instruments shall govern and control), that portion of the
Obligations consisting of principal payable on account of Loans shall be payable by Borrower to
FINOVA immediately upon the earliest of (i) the receipt by FINOVA or Borrower of any proceeds of any
of the Collateral, to the extent of said proceeds, (ii) the occurrence of an Event of Default in
consequence of which FINOVA elects to accelerate the maturity and payment of such loans, or (iii)
any termination of this Agreement pursuant to Section 9.2 hereof; provided, however, that any
Overadvance or Overline shall be payable on demand pursuant to the provisions of Section 2.3
hereof.
Collections. Until FINOVA notifies
Borrower to the contrary and except with respect to the DDN Receivables (as defined below), Borrower
may make collection of all Receivables for FINOVA by directing all account debtors, Payors and other
third parties to remit all payments owing to Borrower to lockboxes subject to a Lock Box Agreement
in favor of FINOVA (a "Lockbox") and/or a Holding Account. With respect to
Receivables arising through sales of goods fulfilled by DDN (or any replacement thereto reasonably
acceptable to FINOVA) under the DDN Distribution Agreement (or any replacement thereto reasonably
acceptable to FINOVA) as to which DDN (or any such replacement thereof) is obligated to ▇▇▇▇ and
collect as Borrower's agent (the "DDN Receivables"), if any, Borrower shall cause DDN (or
any such replacement thereof) to remit all payments received from all account debtors directly to a
Lockbox and/or to a Holding Account. In the event Borrower shall nevertheless directly receive any
payments or other financial proceeds of any Collateral (other than for Governmental Receivables),
Borrower shall receive all payments in trust for FINOVA and immediately deliver all payments to
FINOVA in their original form as set forth below, duly endorsed in blank or cause the same to be
deposited into a Holding Account and/or a Dominion Account or Blocked Account. FINOVA or its
designee may, at any time, notify account debtors (other than Payors of Governmental Receivables)
that the Receivables have been assigned to FINOVA and of FINOVA's security interest therein, and may
collect the Receivables (other than any Governmental Receivable, unless pursuant to a valid court
order) directly and charge the collection costs and expenses to Borrower's loan account. Borrower
agrees that, in computing the charges under this Agreement, all items of payment shall be deemed
applied by FINOVA on account of the Obligations two (2) Business Days after receipt by FINOVA of
good funds which have been finally credited to FINOVA's account, whether such funds are received
directly from Borrower or from the Blocked Account bank or the Dominion Account bank, pursuant to
Section 2.10(c) hereof, and this provision shall apply regardless of the amount of the Obligations
outstanding or whether any Obligations are outstanding; provided, that if any such good funds are
received after 12:00 p.m. noon (Los Angeles time) on any Business Day or at any time on any day not
constituting a Business Day, such funds shall be deemed received on the immediately following
Business Day. FINOVA is not, however, required to credit Borrower's account for the amount of any
item of payment which is unsatisfactory to FINOVA in its Permitted Discretion and FINOVA may charge
Borrower's loan account for the amount of any item of payment which is returned to FINOVA
unpaid.
Establishment of a Blocked Account or Dominion Account. Unless
Borrower shall be otherwise directed by FINOVA in writing and except with respect to Governmental
Receivables, Borrower shall cause all proceeds of Collateral to be deposited into one or more
Holding Accounts from which Borrower shall each Business Day, cause such amounts on deposit therein
to be remitted to a Blocked Account or Dominion Account for the benefit of FINOVA, which amounts,
unless otherwise provided herein, shall be applied in payment of the Obligations as provided for
herein; provided that if the outstanding balance of Obligations (other than the principal
balance of Revolving B Credit Loans) shall be less than $100,000 and no Event of Default shall have
occurred and be outstanding, Borrower need not remit such funds to FINOVA and may instead transfer
such funds to any other account of Borrower. Except with respect to Governmental Receivables, all
funds deposited in a Blocked Account or Dominion Account shall immediately become the sole property
of FINOVA and Borrower shall obtain the agreement by such bank to waive any offset rights against
the funds so deposited. FINOVA assumes no responsibility for any Blocked Account or Dominion
Account arrangement, including without limitation, any claim of accord and satisfaction or release
with respect to deposits accepted by any bank thereunder. Alternatively, FINOVA may establish one
or more Dominion Accounts and Borrower shall, as and when required herein, deposit all proceeds of
Receivables and all cash proceeds of any sale of any other Collateral, or cause same to be
deposited, in kind, in such Dominion Accounts of FINOVA in lieu of depositing same to Blocked
Accounts, and all such funds shall be applied by FINOVA to the Obligations as provided
herein.
Governmental Receivables. It is the intent of the parties to comply
with the laws and regulations of the United States under (i) 42 U.S.C. 1395u(b)(6) in
connection with Medicare, (ii) 42 U.S.C. 1396a(a)(32) in connection with Medicaid, and
(iii) 32 CFR 199.1 et. seq. in connection with CHAMPUS, and any other provisions
affecting Governmental Receivables. Accordingly, it is agreed that, notwithstanding any provisions
to the contrary in this Agreement or in any of the Loan Documents, in no event shall this Agreement
or the Loan Documents require any pledge, action or other conduct to the extent they are violative
of the aforementioned laws and regulations.
Payments Without Deductions. Borrower
shall pay principal, interest, and all other amounts payable hereunder, or under any other Loan
Document, without any deduction whatsoever, including, but not limited to, any deduction for any
setoff or counterclaim.
Collection Days Upon Repayment. In the
event Borrower repays the Obligations in full at any time hereafter, such payment in full shall be
credited (conditioned upon final collection) to Borrower's loan account two (2) Business Days after
FINOVA's receipt thereof.
Monthly Accountings. FINOVA shall provide
Borrower monthly with an account of advances, charges, expenses and payments made pursuant to this
Agreement. Such account shall be deemed correct, accurate and binding on Borrower and an account
stated (except for reverses and reapplications of payments made and corrections of errors discovered
by FINOVA), unless Borrower notifies FINOVA in writing to the contrary within thirty (30) days after
each account is rendered, describing the nature of any alleged errors or omissions.
Application of Collateral
. Upon the occurrence and continuation of an Event of Default FINOVA shall
have the right to apply or reverse and re-apply any and all payments to any portion of the
Obligations in such order and manner as FINOVA shall determine in its Permitted Discretion. To the
extent that Borrower makes a payment or FINOVA receives any payment or proceeds of the Collateral
for Borrower's benefit which is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required to be repaid to a trustee, debtor in possession, receiver or any other party
under any bankruptcy law, common law or equitable cause, or otherwise, then, to such extent, the
Obligations or part thereof intended to be satisfied shall be revived and continue as if such
payment or proceeds had not been received by FINOVA, and FINOVA may adjust the balance of the Loan
as FINOVA, in its Permitted Discretion, deems appropriate under the circumstances.
Application of Payments
. (a) Except as otherwise provided in Section 2.11 above or as provided in
Section 2.12(b) below, the amount of all payments or amounts received by FINOVA with respect to the
Loan shall be applied to the extent applicable under this Agreement: (i) first, to accrued interest
through the date of such payment, including any Default Interest; (ii) then, to any late fees,
overdue risk assessments, Examination Fee and expenses, collection fees and expenses and any other
fees and expenses due to FINOVA hereunder; and (iii) last, the remaining balance, if any, to the
unpaid principal balance of the Loan; provided however, while an Event of Default exists under this
Agreement, or under any other Loan Document, each payment hereunder shall be (x) held as cash
collateral to secure Obligations relating to any contingent obligations arising under the Loan
Documents and/or (y) applied to amounts owed to FINOVA by Borrower as FINOVA in its Permitted
Discretion may determine. In calculating interest and applying payments as set forth above: (a)
interest shall be calculated and collected through the date a payment is actually applied by FINOVA
under the terms of this Agreement; (b) interest on the outstanding balance shall be charged during
any grace period permitted hereunder; (c) at the end of each month, all accrued and unpaid interest
and other charges provided for hereunder shall be added to the principal balance of the Loan; and
(d) to the extent that Borrower makes a payment or FINOVA receives any payment or proceeds of the
Collateral for Borrower's benefit that is subsequently invalidated, set aside or required to be
repaid to any other Person, then, to such extent, the Obligations intended to be satisfied shall be
revived and continue as if such payment or proceeds had not been received by FINOVA and FINOVA may
adjust the Loan balances as FINOVA, in its Permitted Discretion, deems appropriate under the
circumstances.
(b) At all times prior to the occurrence and continuation of a Trigger Event,
Borrower may only fund payments of principal of the Revolving B Credit Loans by either directing
FINOVA to liquidate and apply Cash Collateral already on deposit in the Control Account to payment
of such Obligations and/or by funding an additional amount of immediately available funds to FINOVA
with specific instructions to apply the same to such Obligations. Upon the occurrence and during
the continuation of a Trigger Event, FINOVA may, in its sole discretion, at any time, liquidate all
or any of the Cash Collateral on deposit in the Control Account and apply the same to payment of the
Obligations owing in respect of the Revolving B Credit Loans; provided that if such Trigger Event is
also an Event of Default, FINOVA shall be further entitled to apply all or any portion of the Cash
Collateral on deposit in the Control Account to payment of any and all Obligations in such order as
FINOVA may elect in its sole discretion.
SECURITY.
Security Interest in the
Collateral
. To secure the payment and performance of the Obligations when due,
Borrower hereby grants to FINOVA a first priority security interest (subject only to Permitted
Encumbrances) in all of Borrower's now owned or hereafter acquired or arising Inventory, Equipment,
Receivables, life insurance policies and the proceeds thereof, Trademarks, Copyrights, Licenses and
Patents, Investment Property (as defined in Section 9-115 of the Code), Provider Agreements and
General Intangibles, including, without limitation, all of Borrower's Deposit Accounts, money, any
and all property now or at any time hereafter in FINOVA's possession (including claims and credit
balances), and all proceeds (including proceeds of any insurance policies, proceeds of proceeds and
claims against third parties), all products and all books and records and computer data related to
any of the foregoing (all of the foregoing, together with all other property in which FINOVA may be
granted a lien or security interest, is referred to herein, collectively, as the
"Collateral"); provided that in no event will any Receivables or other Collateral be
deemed to include any of the Retained Rights.
Perfection and Protection of Security Interest
. Borrower shall, at its expense, take all actions requested by FINOVA at
any time to perfect, maintain, protect and enforce FINOVA's first priority security interest and
other rights in the Collateral and the priority thereof from time to time (subject only to Permitted
Encumbrances), including, without limitation, (i) executing and filing financing or continuation
statements and amendments thereof and executing and delivering such documents and titles in
connection with motor vehicles as FINOVA shall require, all in form and substance satisfactory to FINOVA, (ii) maintaining a perpetual inventory and complete and accurate
inventory stock records, (iii) delivering to FINOVA appropriate documents as required by FINOVA
covering any portion of the Collateral is kept in a warehouse, delivering to FINOVA warehouse
receipts covering such Collateral and for which warehouse receipts are issued, and transferring
Inventory to warehouses designated by FINOVA, (iv) delivering to FINOVA all letters of credit on
which Borrower is named beneficiary. FINOVA may file, without Borrower's signature, one or more
financing statements disclosing FINOVA's security interest under this Agreement. Borrower agrees
that a carbon, photographic, photostatic or other reproduction of this Agreement or of a financing
statement is sufficient as a financing statement. If any Collateral is at any time in the
possession or control of any warehouseman, bailee or any of Borrower's agents or processors,
Borrower shall notify such Person of FINOVA's security interest in such Collateral and, upon
FINOVA's request, instruct them to hold all such Collateral for FINOVA's account subject to FINOVA's
instructions. From time to time, Borrower shall, upon FINOVA's request, execute and deliver
confirmatory written instruments pledging the Collateral to FINOVA, but Borrower's failure to do so
shall not affect or limit FINOVA's security interest or other rights in and to the Collateral.
Until the Obligations have been fully satisfied and FINOVA's obligation to make further advances
hereunder has terminated, FINOVA's security interest in the Collateral shall
continue in full force and effect.
Preservation of Collateral
. FINOVA may, in its Permitted Discretion, at any time discharge any lien or
encumbrance on the Collateral or bond the same, pay any insurance, maintain guards, pay any service
bureau, obtain any record or take any other action to preserve the Collateral and charge the cost
thereof to Borrower's loan account as an Obligation.
Insurance
. Borrower will maintain and deliver evidence to FINOVA of such insurance as
is required by FINOVA, written by insurers, in amounts, and with lender's loss payee, additional
insured, and other endorsements, satisfactory to FINOVA. All premiums with respect to such
insurance shall be paid by Borrower as and when due. Accurate and certified copies of the policies
shall be delivered by Borrower to FINOVA. If Borrower fails to comply with this Section, FINOVA may
(but shall not be required to) procure such insurance and endorsements at Borrower's expense and
charge the cost thereof to Borrower's loan account as an Obligation.
Collateral Reporting; Inventory.
Invoices. Borrower shall not re-date any
invoice or sale from the original date thereof or make any claims for reimbursement or sales on
extended terms beyond those customary in Borrower's industry, or otherwise extend or modify the term
of any Receivable. If Borrower becomes aware of any matter adversely affecting any Receivable
related to a particular invoice in dispute in excess of $25,000, including information affecting the
credit of the account debtor thereon, Borrower shall promptly notify FINOVA in writing.
Instruments. In the event any Receivable
is or becomes evidenced by a promissory note, trade acceptance or any other instrument for the
payment of money, Borrower shall immediately deliver such instrument to FINOVA appropriately
endorsed to FINOVA and, regardless of the form of any presentment, demand, notice of dishonor,
protest and notice of protest with respect thereto, Borrower shall remain liable thereon until such
instrument is paid in full.
Physical Inventory. Borrower shall
conduct a physical count of the Inventory on an annual basis and promptly supply FINOVA with a copy
of such accounts accompanied by a report of the value (calculated at the lower of cost or market
value on a first in, first out basis) of the Inventory and such additional information with respect
to the Inventory as FINOVA may request from time to time.
Returns. For so long as no Event of
Default has occurred and is continuing and subject to the provisions of Section 3.6(b), if any
account debtor returns any Inventory to Borrower in the ordinary course of its business, Borrower
shall promptly determine the reason for such return and promptly issue a credit memorandum to the
account debtor (sending a copy to FINOVA) in the appropriate amount. In the event any attempted
return occurs after the occurrence of any Event of Default, Borrower shall (i) hold the
returned Inventory in trust for FINOVA, (ii) segregate all returned Inventory from all of
Borrower's other property, (iii) conspicuously label the returned Inventory as FINOVA's
property, and (iv) immediately notify FINOVA of the return of any Inventory, specifying the
reason for such return, the location and condition of the returned Inventory, and on FINOVA's
request deliver such returned Inventory to FINOVA.
Borrower shall not consign any Inventory.
Receivables.
Eligibility. (i) Borrower represents and
warrants that each Receivable covers and shall cover a bona fide sale or lease and delivery by it of
goods or the rendition by it of services in the ordinary course of its business, and shall be for a
liquidated amount and FINOVA's security interest shall not be subject to any offset, deduction,
counterclaim, rights of return or cancellation, lien or other condition other than in the ordinary
course of Borrower's business but solely to the extent arising in connection with regular, periodic
reviews of Borrower's collection history or billing as undertaken from time to time by Governmental
Authorities. If any representation or warranty herein is breached as to any Receivable or any
Receivable ceases to be an Eligible Receivable for any reason other than payment thereof, then
FINOVA may, in addition to its other rights hereunder, designate any and all Receivables owing by
that account debtor as not Eligible Receivables; provided, that FINOVA shall in any such event
retain its security interest in all Receivables, whether or not Eligible Receivables, until the
Obligations have been fully satisfied and FINOVA's obligation to provide loans hereunder has
terminated.
(ii) FINOVA at any time in the exercise of its Permitted Discretion shall be
entitled to (i) establish and increase or decrease reserves against Eligible Receivables and
Eligible Inventory, (ii) reduce the advance rates in the Schedule or restore such advance rates to
any level equal to or below the advance rates set forth in the Schedule or (iii) impose additional
restrictions (or eliminate the same) to the standards of eligibility set forth in the definitions of
"Eligible Receivables" and "Eligible Inventory". FINOVA may but shall not be
required to rely on the schedules and/or reports delivered to FINOVA in connection herewith in
determining the then eligibility of Receivables and Inventory. Reliance thereon by FINOVA from time
to time shall not be deemed to limit the right of FINOVA to revise advance rates or standards of
eligibility as provided above. In determining whether to reduce the lending formula, FINOVA may
consider events, conditions, contingencies or risks which are also considered in determining
Eligible Receivables or Eligible Inventory, or in establishing Loan Reserves. The burden of
establishing lack of good faith hereunder shall be on the Borrower.
Disputes. Borrower shall notify FINOVA
promptly of all disputes or claims and settle or adjust such disputes or claims at no expense to
FINOVA, but no discount, credit or allowance shall be granted to any account debtor and no returns
of merchandise shall be accepted by Borrower without FINOVA's consent, except for discounts, credits
and allowances made or given in the ordinary course of Borrower's business. FINOVA may, at any time
after the occurrence of an Event of Default, settle or adjust disputes or claims directly with
account debtors for amounts and upon terms which FINOVA considers advisable in its reasonable credit
judgment and, in all cases, FINOVA shall credit Borrower's loan account with only the net amounts
received by FINOVA in payment of any Receivables.
Equipment
. Borrower shall keep and maintain the Equipment in good operating condition
and repair and make all necessary replacements thereto to maintain and preserve the value and
operating efficiency thereof at all times consistent with Borrower's past practice, ordinary wear
and tear excepted. Borrower shall not permit any item of Equipment to become a fixture (other than a
trade fixture) to real estate or an accession to other property.
Other Liens; No Disposition of Collateral
. Borrower represents, warrants and covenants that except for FINOVA's
security interest, Permitted Encumbrances, and such other liens, claims and encumbrances as may be
permitted by FINOVA in its Permitted Discretion from time to time in writing, (a) all Collateral is
and shall continue to be owned by it free and clear of all liens, claims and encumbrances whatsoever
and (b) Borrower shall not, without FINOVA's prior written approval, sell, encumber or dispose of or
permit the sale, encumbrance or disposal of any Collateral or all or any substantial part of any of
its other assets (or any interest of Borrower therein), except for the sale of Inventory in the
ordinary course of Borrower's business and the replacement of Equipment deemed by Borrower in good
faith to be commercially obsolete to Borrower's business. In the event FINOVA gives any such prior
written approval with respect to any such sale of Collateral, the same may be conditioned on the
sale price being equal to, or greater than, an amount acceptable to FINOVA. The proceeds of any
such sales of Collateral shall be remitted to FINOVA pursuant to this Agreement for application to
the Obligations.
Collateral Security
. The Obligations shall constitute one loan secured by the Collateral.
FINOVA may, in its Permitted Discretion, (i) exchange, enforce, waive or release any of the
Collateral, (ii) apply Collateral and direct the order or manner of sale thereof as it may
determine, and (iii) settle, compromise, collect or otherwise liquidate any Collateral in any manner
without affecting its right to take any other action with respect to any other Collateral.
Special Intellectual Property
Provisions
. (a) FINOVA acknowledges that ▇▇▇▇▇▇ holds a security interest in and to
the marketing rights for SangCya in the United States (the "▇▇▇▇▇▇ Senior Collateral") and a
nonexclusive royalty free license in certain of Borrower's Trademarks, Copyrights, Licenses and
Patents which relate to the SangCya product. FINOVA and Borrower each hereby acknowledge and agree
that notwithstanding any of the other terms set forth in this Agreement or any of the other Loan
Documents (including, without limitation, the Patent Security Agreement and the Trademark Security
Agreement), Borrower and/or its Subsidiaries may hereafter grant to other Persons not constituting
Affiliate of Borrower or its Subsidiaries, in bona fide arms-length transactions, a security
interest in Borrower's or any Subsidiaries' Trademarks, Copyrights, Licenses and Patents
(collectively, the "Intellectual Property") which shall constitute Permitted Encumbrance on
such Intellectual Property and rank senior in priority to the security interest of FINOVA in such
Intellectual Property, if and only if the following conditions precedent are met: (i) FINOVA shall
receive ten (10) Business Days prior written notice of the proposed grant of any security interest
in any Intellectual Property including the reasons for such grant, a description of the proposed
terms of such grant and, if then available, a copy of the proposed agreements under which such grant
is to be effectuated, (ii) no Event of Default or event which, with the passage of time or the
giving of notice or both, would constitute an Event of Default shall have occurred and be
continuing, and (iii) prior to or concurrent with the grant of such security interest, FINOVA and
the Person to which such grant of security interests shall have entered into an intercreditor
agreement on terms and conditions acceptable to FINOVA pursuant to which (I) FINOVA shall
acknowledge the senior priority of such Person's security interest in and to such of the
Intellectual Property in which such Person is intended to have been granted a senior lien (but shall
not agree any terms subordinating Obligations or restricting or limiting FINOVA from enforcing any
of its rights and remedies against Borrower and/or any other Loan Party and (II) such Person shall
grant to FINOVA and its designees and/or assignees, a non-exclusive royalty free right and license
to use such Intellectual Property at all times from and after the occurrence of an Event of Default
and in each and every location which such Person may be entitled to use the same, to complete or
arrange for the completion of processing any raw materials or work in process into finished goods,
or sell, liquidate or dispose of any raw materials, work in process or finished goods which, in each
case, constitute Collateral.
(b) FINOVA and Borrower each hereby acknowledge and agree that notwithstanding
any of the other terms set forth in this Agreement or any of the other Loan Documents (including,
without limitation, the Patent Security Agreement and the Trademark Security Agreement), Borrower
and/or its Subsidiaries may hereafter enter into agreements with Persons not constituting Affiliate
of Borrower or its Subsidiaries, in bona fide arms-length transactions, to sell, assign, exchange,
license, contribute in a joint venture or otherwise transfer all or any part of the Intellectual
Property (other than solely a security interest therein) to such Persons (each an "IP
Assignment" and collectively, the "IP Assignments"), if and only if the following
conditions precedent are met (collectively, the "IP Release Conditions"): (i) FINOVA shall receive
ten (10) Business Days prior written notice of the proposed IP Assignment including (a) a
description of the proposed terms thereof, (b) a copy of the documents, if then available, under
which such IP Assignment is to be effectuated and (c) a certificate of the President or other senior
financial officer of Borrower certifying the nature of products and/or services of Borrower and/or
its Subsidiaries which are derived from or dependent in any way upon the Intellectual Property which
is the subject of such IP Assignment and computing and stating the impact which the omission of all
related Inventory and Receivables from eligibility for advances hereunder will have on the
availability of Revolving A Credit Loans after giving effect to such proposed IP Assignment, (ii)
FINOVA shall be satisfied that after omitting all Inventory which is derived from or dependent in
any way upon the Intellectual Property which is the subject of such IP Assignment and all
Receivables arising from the sale of any such Inventory, Borrower shall have Excess Availability of
not less than $1.00 and (iii) no Event of Default or event which, with the passage of time or the
giving of notice or both, would constitute an Event of Default shall have occurred and be
continuing. Provided that each of the IP Release Conditions have been met with respect to a
proposed IP Assignment, FINOVA shall, promptly upon the request of Borrower, execute and deliver
such releases as may be reasonably necessary to release FINOVA's security interest in and to the
Intellectual Property which is the subject of such IP Assignment.
CONDITIONS
OF CLOSING.
Initial Advance
. The obligation of FINOVA to make the initial advance hereunder is subject
to the fulfillment, to the satisfaction of FINOVA and its counsel, of each of the following
conditions on or prior to the date set forth on the Schedule:
Loan Documents. FINOVA shall have
received each of the following Loan Documents: (i) the Agreement fully and properly executed by
Borrower; (ii) promissory notes in such amounts and on such terms and conditions as FINOVA shall
specify, executed by Borrower; (iii) such security agreements, intellectual property assignments,
pledge agreements, mortgages and deeds of trust as FINOVA may require with respect to this
Agreement, executed by each of the parties thereto and, if applicable, duly acknowledged for
recording or filing in the appropriate governmental offices; (iv) such Blocked Account or Dominion
Account agreements as it shall determine; and (v) such other documents, instruments and agreements
in connection herewith as FINOVA shall require, executed, certified and/or acknowledged by such
parties as FINOVA shall designate;
Minimum Excess Availability. Borrower
shall have Liquidity (without deducting from Excess Availability the Special Reserve) as of the
Closing Date and not calculated on a thirty (30) day average under the Revolving Credit Loans of not
less than $30,000,000, after giving effect to (i) the initial advance hereunder, (ii) any applicable
Loan Reserves against borrowing availability under the Revolving Credit Loans, and (iii) payment in
full of all of Borrower's accounts payable outstanding thirty (30) days or more from due date and
all book overdrafts;
[Intentionally Omitted];
Charter Documents. FINOVA shall have
received copies of Borrower's By-laws and Articles or Certificate of Incorporation or Operating
Agreement and Certificate of Formation, as amended, modified, or supplemented to the Closing Date,
certified by the Secretary of Borrower;
Good Standing. FINOVA shall have received
a certificate of corporate status with respect to Borrower, dated within a reasonable time prior to
the Closing Date, by the Secretary of State of the state of incorporation of Borrower, which
certificate shall indicate that Borrower is in good standing in such state;
Foreign Qualification. FINOVA shall have
received certificates of corporate status with respect to Borrower and each other Loan Party, each
dated within a reasonable time prior to the Closing Date, issued by the Secretary of State of each
jurisdiction in which such party's failure to be duly qualified or licensed would have a material
adverse effect on its financial condition or assets, indicating that such party is in good
standing;
Authorizing Resolutions and Incumbency.
FINOVA shall have received a certificate from the Secretary of Borrower and each Loan Party
attesting to (i) the adoption of resolutions of such Loan Party's Board of Directors, and
shareholders or members if necessary, authorizing the borrowing of money from FINOVA and execution
and delivery of the Loan Documents to which such Loan Party is a party, and authorizing specific
officers of Borrower to execute same, and (ii) the authenticity of original specimen signatures of
such officers;
Insurance. FINOVA shall have received the
insurance certificates and certified copies of policies required by Section 3.4 hereof, in form and
substance satisfactory to FINOVA and its counsel, together with an additional insured endorsement in
favor of FINOVA with respect to all liability policies and a lender's loss payable endorsement in
favor of FINOVA with respect to all casualty and business interruption policies, each in form and
substance acceptable to FINOVA and its counsel;
[Intentionally Omitted];
Searches; Certificates of
Title. FINOVA shall have received searches reflecting the filing of its financing
statements and fixture filings in such jurisdictions as it shall determine, and shall have received
certificates of title with respect to the Collateral which shall have been duly executed in a manner
sufficient to perfect all of the security interests granted to FINOVA;
Landlord, Bailee and Mortgagee Waivers.
FINOVA shall have received landlord, bailee and/or mortgagee waivers from the lessors, bailees
and/or mortgagees of Borrower's chief executive office, and, in the case of Collateral located at
the Self-Service Storage Facility, (i) a copy of a fully executed and delivered letter from Borrower
to Door to Door Storage, Inc. pursuant to which Borrower has designated FINOVA as an "Alternate
Contact"; and (ii) a copy of a fully executed and delivered Request to Add an Authorized Agent form
from Borrower to Door to Door Storage, Inc. pursuant to which Borrower has designated FINOVA as an
"Authorized Agent";
Fees. Borrower shall have paid all fees
payable by it on the Closing Date pursuant to this Agreement;
Opinion of Counsel. FINOVA shall have
received an opinion of Borrower's counsel in form and substance satisfactory to FINOVA;
Officer Certificate. FINOVA shall have
received a certificate of the President and the Chief Financial Officer or similar official of
Borrower, attesting to the accuracy of each of the representations and warranties of Borrower set
forth in this Agreement and the fulfillment of all conditions precedent to the initial advance
hereunder;
Solvency Certificate. If requested,
FINOVA shall have received a signed certificate of the Borrower's duly elected Chief Financial
Officer concerning the solvency and financial condition of Borrower, on FINOVA's standard
form;
Lock Box, Dominion and Holding Accounts.
The Lock Box, Dominion and Holding Accounts referred to in Section 2.10(c) hereof shall have been
established with Silicon Valley Bank;
[Intentionally Omitted].
Environmental Certificate. FINOVA shall
have received an Environmental Certificate from Borrower, in form and substance satisfactory to
FINOVA in its discretion, with respect to all locations of Collateral;
Search and References. FINOVA shall have
received and approved the results of UCC, tax lien, litigation, judgment, and bankruptcy searches
regarding Borrower and shall have received satisfactory customer, vendor and credit reference
checks.
▇▇▇ ▇▇▇▇▇ No Offset and Bailee Agreement.
FINOVA shall have received a No Offset and Bailee Waiver Agreement executed by ▇▇▇ Lilly and on
terms and conditions satisfactory to FINOVA covering the Borrower's Inventory situated at ▇▇▇
▇▇▇▇▇.
Control Agreement. FINOVA shall have received a Control Agreement
executed by Borrower and a financial institution acceptable and on terms and conditions satisfactory
to FINOVA.
DDN Agreement. FINOVA shall have received an agreement executed by
DDN (and/or any party replacing DDN) and Borrower and pursuant to which, inter alia,
DDN acknowledges FINOVA's lien rights in all collateral held or received by DDN, agrees to remit all
proceeds of Receivables and sales of Collateral directly to the Holding Account or Dominion Account
for the benefit of FINOVA and on terms and conditions satisfactory to FINOVA agrees to only take
direction from FINOVA concerning the disposition of Collateral in its possession at all times after
receiving written notice of an Event of Default.
No Material Adverse Changes. Prior to the
Closing Date, there shall have occurred no material adverse change in the financial condition of
Borrower, or in the condition of the assets of Borrower and its Subsidiaries, from that shown on the
financial statements for Borrower and its Subsidiaries dated September 30, 1999. At the
closing, Borrower shall deliver to FINOVA an officer's certification confirming that Borrower is
unaware of the existence of any such material adverse change in Borrower's or its Subsidiaries'
financial condition as of the Closing Date.
Projections. Borrower shall submit
cash flow projections and pro forma balance sheet with adjusting entries (i) showing that the
proposed financing will provide sufficient funds for the Borrower's projected working capital needs,
and (ii) showing: (1) that the Borrower will have reasonably sufficient capital for the conduct of
its business following the initial funding, and (2) that the Borrower will not incur debts beyond
its ability to pay such debts as they mature.
Material Agreements. FINOVA shall have received, reviewed and
approved all material agreements to which Borrower shall be a party.
Opinions. To the extent any Person other
than Borrower shall be parties to the Loan Documents, FINOVA reserves the right to require
satisfactory opinions of counsel for each such Person concerning the proper organization of such
Person and the due authorization, execution, delivery, enforceability, validity and binding effect
of the Loan Documents to which such Person is a party. Each such opinion of counsel shall confirm,
to the satisfaction of FINOVA, that the opinion is being delivered to FINOVA at the instruction of
the party represented by such counsel, that FINOVA is entitled to rely on such opinion and that for
purposes of such reliance, FINOVA is deemed to be in privity with the opining counsel.
Stock Pledge and Subsidiary Loan
Documents. Borrower and/or its subsidiaries shall have executed and delivered a Stock
Pledge Agreement of even date herewith ("Stock Pledge Agreement"), pledging
in favor of FINOVA all of the issued and outstanding capital stock of Borrower's U.S. and French
subsidiaries (including SangStat Atlantique) and SangStat Atlantique shall have executed and
delivered a Stock Pledge Agreement pledging in favor of FINOVA not less than 100% of the issued and
outstanding capital stock of IMTIX - SangStat S.A.S. FINOVA shall be in possession on the Closing
Date of original stock certificates evidencing all shares of stock so pledged to FINOVA, and of
undated stock Powers and Assignments Apart from Certificate, executed in blank by Borrower and
SangStat Atlantique (the "Pledgors") with respect to all such shares together with
such other agreements and instruments as may be necessary to create a first priority perfected
pledge of such stock in favor of FINOVA. In addition, FINOVA shall have received such opinions of
local French counsel regarding each of SangStat Atlantique and IMTIX - SangStat S.A.S. as FINOVA may
reasonably request.
Pending Litigation.
FINOVA shall have received and found acceptable information and documents pertaining to all pending
litigation to which Borrower is a party as of the Closing Date including, without limitation, all
litigation with Novartis Pharmaceuticals.
Schedule Conditions. Borrower shall have complied with all
additional conditions precedent as set forth in the Schedule attached hereto.
Other Matters. All other documents and
legal matters in connection with the transactions contemplated by this Agreement shall have been
delivered, executed and recorded and shall be in form and substance satisfactory to FINOVA and its
counsel including, without limitation, each of the items listed on the Closing Checklist attached as
Exhibit 4.1 hereto.
Subsequent Advances
. The obligation of FINOVA to make any advance (including the initial
advance) shall be subject to the further conditions precedent that, on and as of the date of such
advance: (a) the representations and warranties of Borrower set forth in this Agreement shall be
accurate, before and after giving effect to such advance or issuance and to the application of any
proceeds thereof; (b) no Event of Default and no event which, with notice or passage of time or
both, would constitute an Event of Default has occurred and is continuing, or would result from such
advance or issuance or from the application of any proceeds thereof; (c) no material adverse change
has occurred in the Borrower's business, operations, financial condition, in the condition of the
Collateral or other assets of Borrower or in the prospect of repayment of the Obligations; and (d)
FINOVA shall have received such other approvals, opinions or documents as FINOVA shall reasonably
request. In addition to the foregoing conditions set forth above in clauses (a), (b), (c) and (d)
of this Section 4.2, FINOVA's obligation to make any advances of Revolving B Credit Loans
shall be further subject to the condition that no Trigger Event shall have occurred and be
continuing.
REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants that:
Due Organization
. It is a corporation, duly organized, validly existing and in good standing
under the laws of the State set forth on the Schedule, is qualified and authorized to do business
and is in good standing in all states in which such qualification and good standing are necessary in
order for it to conduct its business and own its property, and has all requisite power and authority
to conduct its business as presently conducted, to own its property and to execute and deliver each
of the Loan Documents to which it is a party and perform all of its Obligations thereunder, and has
not taken any steps to wind-up, dissolve or otherwise liquidate its assets;
Other Names
. Borrower has not, during the preceding five (5) years, been known by or
used any other corporate or fictitious name except as set forth on the Schedule, nor has Borrower
been the surviving corporation of a merger or consolidation or acquired all or substantially all of
the assets of any Person during such time;
Due Authorization
. The execution, delivery and performance by Borrower of the Loan Documents
to which it is a party have been authorized by all necessary corporate action and do not and shall
not constitute a violation of any applicable law or of Borrower's Articles or Certificate of
Incorporation, By-Laws, or any other organizational or governing documents, as applicable, or any
other document, agreement or instrument to which Borrower is a party or by which Borrower or its
assets are bound;
Binding Obligation
. Each of the Loan Documents to which Borrower is a party is the legal,
valid and binding obligation of Borrower enforceable against Borrower in accordance with its
terms;
Intangible Property
. Borrower possesses adequate assets, licenses, patents, patent
applications, copyrights, trademarks, trademark applications and trade names for the present and
planned future conduct of its business without any known conflict with the rights of others (except
as set forth on Exhibit 5.7 hereto), and each is valid and has been duly registered or filed
with the appropriate Governmental Authorities; each of Borrower's U.S. licenses, patents, patent
applications, copyrights, trademarks and trademark applications which have been registered or filed
with any Governmental Authority (including the U.S. Patent and Trademark Office and the Library of
Congress) are listed by name, date and filing number on the Schedule;
Capital
. Borrower has capital sufficient to conduct its business, is able to pay
its debts as they mature, and owns property having a fair salable value greater than the amount
required to pay all of its debts (including contingent debts);
Material Litigation
. Except as described on Exhibit 5.7 hereto, Borrower has no
pending or overtly threatened litigation, actions or proceedings which would materially and
adversely affect its business, assets, operations, prospects or condition, financial or otherwise,
or the Collateral or any of FINOVA's interests therein;
Title; Security Interests of FINOVA
. Borrower has good, indefeasible and merchantable title to the Collateral
and, upon the execution and delivery of the Loan Documents, the filing of UCC-1 Financing
Statements, delivery of the certificate(s) evidencing any pledged securities, the filing of any
collateral assignments or security agreements regarding Borrower, Trademarks, Copyrights, Licenses
and/or Patents, if any, with the appropriate governmental offices and the recording of any mortgages
or deeds of trust with respect to real property, in each case in the appropriate offices, this
Agreement and such documents shall create valid and perfected first priority liens in the
Collateral, subject only to Permitted Encumbrances;
Restrictive Agreements; Labor Contracts
. Borrower is not a party or subject to any contract or subject to any
charge, corporate restriction, judgment, decree or order materially and adversely affecting its
business, assets, operations, prospects or condition, financial or otherwise, or which restricts its
right or ability to incur Indebtedness, and it is not party to any labor dispute. In addition, no
labor contract is scheduled to expire during the Initial Term of this Agreement, except as disclosed
to FINOVA in writing prior to the date hereof;
Laws
. Borrower is not in violation of any applicable statute, regulation,
ordinance or any order of any court, tribunal or governmental agency, in any respect materially and
adversely affecting the Collateral or its business, assets, operations, prospects or condition,
financial or otherwise, including without limitation any violation of the Fair Labor Standards Act,
and Borrower specifically represents and warrants that it is not producing goods in violation of
Federal minimum wage requirements;
Consents
. Borrower has obtained or caused to be obtained or issued any required
consent of a governmental agency or other Person in connection with the financing contemplated
hereby;
Defaults
. Borrower is not in default with respect to any note, indenture, loan
agreement, mortgage, lease, deed or other agreement to which it is a party or by which it or its
assets are bound, nor has any event occurred which, with the giving of notice or the lapse of time,
or both, would cause such a default;
Financial Condition
. The Prepared Financials fairly present Borrower's financial condition and
results of operations and those of such other Persons described therein as of the date thereof in
accordance with GAAP; there are no material omissions from the Prepared Financials or other facts or
circumstances not reflected in the Prepared Financials; and there has been no material and adverse
change in such financial condition or operations since the date of the initial Prepared Financials
delivered to FINOVA hereunder;
ERISA
. The Borrower and any Plans are in compliance in all material respects with
the provisions of ERISA and the qualification requirements of IRC Section 401(a). Borrower has
received no notice indicating that it or any Plan does not so comply. No notice of intent to
terminate a Plan has been filed under ERISA Section 4041, nor has any Plan been terminated under
ERISA. The PBGC has not instituted proceedings to terminate, or appointed a trustee to administer,
a Plan. No lien upon the assets of Borrower has arisen with respect to a Plan. No Prohibited
Transaction or Reportable Event has occurred with respect to a Plan. Neither Borrower nor any ERISA
Affiliate has incurred any withdrawal liability with respect to any Multiemployer Plan. Borrower
and each ERISA Affiliate have made all contributions required to be made by them to any Plan or
Multiemployer Plan when due. There is no accumulated funding deficiency in any Plan, whether or not
waived;
Taxes
. Borrower has filed all tax returns and such other reports as it is
required by law to file and has paid or made adequate provision for the payment on or prior to the
date when due of all taxes, assessments and similar charges that are due and payable;
Locations; Federal Tax ID No.
Borrower's chief executive office and the offices and locations where it keeps
the Collateral (except for Inventory in transit) are at the locations set forth on the Schedule,
except to the extent that such locations may have been changed after notice to FINOVA in accordance
with Section 6.1.4 hereof; Borrower's federal tax identification number is as shown on the
Schedule;
Business Relationships
. There exists no actual or threatened termination, cancellation or
limitation of, or any modification or change in, the business relationship between Borrower and any
customer or any group of customers whose purchases individually or in the aggregate are material to
the business of Borrower, or with any material supplier, and there exists no present condition or
state of facts or circumstances which would materially and adversely affect Borrower or prevent
Borrower from conducting such business after the consummation of the transactions contemplated by
this Agreement in substantially the same manner in which it has heretofore been conducted;
Year 2000 Representations and Warranties
. Borrower has taken all action necessary to assure that there will be no
material adverse change to Borrower's business by reason of the advent of the year 2000, including
without limitation that all computer-based systems, embedded microchips and other processing
capabilities effectively recognize and process dates after December 31, 1999; and
Performance and Other Bonds
. Borrower represents that there are no performance bonds or other bonds
posted as of the Closing Date, and that it has no plans or intent to post any such bonds after the
Closing Date.
Reaffirmations
. Each request for a loan made by Borrower pursuant to this Agreement shall
constitute (i) an automatic representation and warranty by Borrower to FINOVA that there does not
then exist any Event of Default and (ii) a reaffirmation as of the date of said request of all of
the representations and warranties of Borrower contained in this Agreement and the other Loan
Documents.
COVENANTS.
Affirmative Covenants
. Borrower covenants that, so long as any Obligation remains outstanding and
this Agreement is in effect, it shall:
Taxes
. File all tax returns and pay or make adequate provision for the payment of
all taxes, assessments and other charges on or prior to the date when due;
Notice of Litigation
. Promptly notify FINOVA in writing of any litigation, suit or
administrative proceeding which (x) asserts a claim for monetary damages in excess of $250,000
(whether or not covered by applicable insurance) or (y) assuming such litigation, suit or proceeding
were adversely determined against Borrower, would constitute a Material Judgment;
ERISA
. Notify FINOVA in writing (i) promptly upon the occurrence of any
Reportable Event with respect to a Plan, other than a termination, partial termination or merger of
a Plan or a transfer of a Plan's assets and (ii) prior to any termination, partial termination or
merger of a Plan or a transfer of a Plan's assets;
Change in Location
. Notify FINOVA in writing forty-five (45) days prior to any change in the
location of Borrower's chief executive office or the location of any Collateral, or Borrower's
opening or closing of any other place of business;
Entity Existence
. Maintain its corporate, limited liability company or partnership entity
existence and its qualification to do business and good standing in all states necessary for the
conduct of its business and the ownership of its property and maintain adequate assets, licenses,
patents, copyrights, trademarks and trade names for the conduct of its business;
Labor Disputes
. Promptly notify FINOVA in writing of any labor dispute to which Borrower
is or may become subject and the expiration of any labor contract to which Borrower is a party or
bound;
Violations of Law
. Promptly notify FINOVA in writing of any violation of any law, statute,
regulation or ordinance of any governmental entity, or of any agency thereof, applicable to Borrower
which may materially and adversely affect the Collateral or Borrower's business, assets, prospects,
operations or condition, financial or otherwise;
Defaults
. Notify FINOVA in writing within five (5) Business Days of Borrower's
default under any note, indenture, loan agreement, mortgage, lease or other agreement to which
Borrower is a party or by which Borrower is bound, or of any other default under any Indebtedness of
Borrower for which the total amount of the obligation exceeds $100,000.
Capital Expenditures
. Promptly notify FINOVA in writing of the making of any Capital Expenditure
materially affecting Borrower's business, assets, prospects, operations or condition, financial or
otherwise, except to the extent permitted in the Schedule;
Books and Records
. Keep adequate records and books of account with respect to its business
activities in which proper entries are made in accordance with GAAP, reflecting all of its financial
transactions;
Leases; Warehouse Agreements
. Provide FINOVA with (i) copies of all agreements between Borrower and any
landlord, warehouseman or bailee which owns any premises at which any Collateral may, from time to
time, be located (whether for processing, storage or otherwise), and (ii) without limiting the
landlord, bailee and/or mortgagee waivers to be provided pursuant to Section 4.1(k) hereof,
additional landlord, bailee and/or mortgagee waivers in form acceptable to FINOVA with respect to
all locations where any Collateral is hereafter located; provided however, that Borrower
shall not be required to provide any landlord, bailee and/or mortgagee waivers for any location
solely related to the Pharmacy Operation;
Additional Documents
. At FINOVA's request, promptly execute or cause to be executed and
delivered to FINOVA any and all documents, instruments or agreements deemed necessary by FINOVA to
facilitate the collection of the Obligations or the Collateral or otherwise to give effect to or
carry out the terms or intent of this Agreement or any of the other Loan Documents. Without
limiting the generality of the foregoing, and subject to the proviso at the end of subsection (vi)
of the definition of "Eligible Trade Receivables" contained in this Agreement, if
any of the Receivables (other than Receivables arising under Medicare or Medicaid) with a face value
in excess of $1,000 arises out of a contract with the United States of America or any department,
agency, subdivision or instrumentality thereof, Borrower shall promptly notify FINOVA of such fact
in writing and shall execute any instruments and take any other action required or requested by
FINOVA to comply with the provisions of the Federal Assignment of Claims Act;
Financial Covenants
. Comply with the financial covenants set forth on the Schedule;
Year 2000 Covenants
. Take all action necessary to assure that there will be no material adverse
change to Borrower's business by reason of the advent of the year 2000, including without limitation
that all computer-based systems, embedded microchips and other processing capabilities effectively
recognize and process dates after December 31, 1999. At FINOVA's request, Borrower shall
provide to FINOVA assurance reasonably acceptable to FINOVA that Borrower's computer-based systems,
embedded microchips and other processing capabilities are year 2000 compatible;
Intangible Property
. Borrower will notify FINOVA if it creates, purchases or otherwise receives
any Trademarks, Copyrights, Licenses or Patents after the Closing Date and Borrower shall execute
all additional Documents FINOVA deems necessary, in its Permitted Discretion, to properly grant a
security interest in such Trademarks, Copyrights, Licenses and Patents to FINOVA, subject to the
terms of Section 3.10 hereof;
Bank Accounts
. Borrower shall notify FINOVA in writing prior to establishing any bank
account not listed on Exhibit 6.1.16 to the Schedule, and if requested by FINOVA, shall
deliver to FINOVA an Assignment of Bank Accounts Agreement in form and substance satisfactory to
FINOVA, acknowledged by the bank at which such account is to be established; and
Minimum Loan Balances. Borrower shall at all
times during the term of this Agreement maintain a minimum outstanding principal balance of Five
Million Dollars ($5,000,000) with respect to the Revolving Credit B Loan; provided,
however, that no Event of Default shall occur as a result of Borrower's failure to comply
with this Section 6.1.17. It is understood and agreed by the parties that FINOVA's sole remedy for
Borrower's failure to comply with this Section 6.1.17 shall be Borrower's payment of the Minimum
Interest Charge set forth in Section 2.6 of the Schedule.
Negative Covenants
. Without FINOVA's prior written consent, so long as any Obligation remains
outstanding and this Agreement is in effect, Borrower shall not:
Mergers and Acquisitions
. Make any material change in its capital structure or in its business or
operations which might adversely affect the repayment of the Obligations, or merge or consolidate
with any other Person or acquire all or any substantial portion of the assets of any other Person;
Loans and Investments
. Make advances, loans or extensions of credit to, or invest in, any Person,
except for loans or cash advances to employees which are permitted in the Schedule; provided
however, that notwithstanding the foregoing, Borrower may make intercompany advances, loans or
extensions of credit to its Subsidiaries so long as the following conditions are satisfied at the
time of any such advance: (i) no Event of Default has occurred is continuing, and (ii) Borrower
shall have Liquidity of at least the Minimum Liquidity Amount;
Dividends
. Declare or pay cash dividends upon any of its stock or, subject to the
provisions of Section 6.2.20 hereof, distribute any of its property or redeem, retire, purchase
or acquire directly or indirectly any of its stock; provided however, that notwithstanding
the foregoing, Borrower may, upon termination of the employment of any employee, repurchase stock
from such employee pursuant to employee benefit plans or other agreements of employment so long as
the following conditions are satisfied at the time of any such repurchase: (i) no Event of Default
has occurred and is continuing, (ii) Borrower shall have Liquidity of at least the Minimum Liquidity
Amount, and (iii) such repurchase, together with the aggregate amount of all such repurchases in any
Fiscal Year of Borrower, is not greater than $250,000;
Adverse Transactions
. Enter into any transaction which materially and adversely affects the
Collateral or its ability to repay the Obligations in full as and when due;
Indebtedness of Others
. Guarantee or become directly or contingently liable for the Indebtedness
of any Person, except by endorsement of instruments for deposit and except for the existing
guarantees made by Borrower prior to the date hereof, if any, which are set forth in the Schedule;
Repurchase
. Make a sale to any customer on a ▇▇▇▇-and-hold, guaranteed sale, sale and
return, sale on approval, consignment, or any other repurchase or return basis;
Name
. Use any corporate or fictitious name other than its corporate name as set
forth in its Articles or Certificate of Incorporation on the date hereof or as set forth on the
Schedule;
Prepayment
. Prepay any Indebtedness other than trade payables and other than the
Obligations;
Capital Expenditure
. Make or incur any Capital Expenditure if, after giving effect thereto, the
aggregate amount of all Capital Expenditures by Borrower in any fiscal year would exceed the amount
set forth on the Schedule;
Compensation
. Pay total compensation, including salaries, withdrawals, fees, bonuses,
commissions, drawing accounts and other payments, whether directly or indirectly, in money or
otherwise, during any fiscal year to all of Borrower's executives, officers and directors (or any
relative thereof) in an amount in excess of the amount set forth on the Schedule;
Indebtedness
. Create, incur, assume or permit to exist any Indebtedness (including
Indebtedness in connection with Capital Leases) in excess of the amount set forth on the Schedule,
other than (i) the Obligations, (ii) trade payables and other contractual obligations to suppliers
and customers incurred in the ordinary course of business, and (iii) other Indebtedness existing on
the date of this Agreement and set forth on Exhibit 6.2.11 hereto (except Indebtedness paid
on the date of this Agreement from proceeds of the initial advances hereunder), and (iv)
Subordinated Debt;
Affiliate Transactions
. Except as set forth below and subject to the provisions of Section 6.2.20
hereof, sell, transfer, distribute or pay any money or property to any Affiliate, or invest in (by
capital contribution or otherwise) or purchase or repurchase any stock or Indebtedness, or any
property, of any Affiliate, or become liable on any guaranty of the indebtedness, dividends or other
obligations of any Affiliate. Notwithstanding the foregoing, Borrower may pay compensation
permitted by Section 6.2.10 to employees who are Affiliates and, if no Event of Default has
occurred, Borrower may engage in transactions with Affiliates in the normal course of business, in
amounts and upon terms which are fully disclosed to FINOVA and which are no less favorable to
Borrower than would be obtainable in a comparable arm's length transaction with a Person who is not
an Affiliate;
Nature of Business
. Enter into any new business or make any material change in any of
Borrower's business objectives, purposes or operations;
FINOVA's Name
. Use the name of FINOVA in connection with any of Borrower's business or
activities, except in connection with internal business matters or as required in dealings with
governmental agencies and financial institutions or with trade creditors of Borrower, solely for
credit reference purposes;
Margin Security
. Engage principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System), nor permit
proceeds of any Loan or other advance to be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock, or in any manner which
might cause such Loan or other advance or the application of such proceeds to violate (or require
any regulatory filing under) Regulation T, Regulation U, Regulation X or any other regulation
of the Board of Governors of the Federal Reserve System, in each case as in effect on the date or
dates of such Loan or other advance and such use of proceeds. Further, no proceeds of any Loan or
other advance will be used to acquire any security of a class which is registered pursuant to
Section 12 of the Securities Exchange Act of 1934;
Real Property
. Purchase or acquire any real property without FINOVA's prior written
consent, a condition of which consent shall include delivery of appropriate environmental reports
and analysis, in form and substance satisfactory to FINOVA and its counsel;
Liens
. Create, incur, assume or suffer to exist any Lien upon any of its
property, whether now owned or hereafter acquired, except Permitted Liens;
Change in Fiscal Year; Auditors
. Change or permit any Subsidiary to change the commencement or ending date
of its fiscal year or retain the independent public auditors for purposes of preparing the
Borrower's audited financial statements which are different than those retained by Borrower and its
Subsidiaries at the time of the Closing Date, in each case, without receiving the prior written
consent of FINOVA; or
Subordinated
Documents in Certain Material Agreements
. Permit the amendment or modification of (i) any of the documents or
instruments evidencing the Subordinated Debt or (ii) the Co-Promotion Agreement unless the prior
written consent of FINOVA has first been obtained.
Pharmacy Operation
. Notwithstanding anything to the contrary contained in this Agreement and
subject to receiving the prior written consent of FINOVA (which shall not be unreasonably withheld
or delayed so long as the requirements set forth below are met), Borrower may: (i) cause
assets relating solely to the Pharmacy Operation to be contributed to a Subsidiary (the
"Pharmacy Subsidiary"), and promptly thereafter (subject to the existence of
favorable market conditions, as reasonably determined by Borrower) conduct an initial public
offering or other sale of equity interests in such Pharmacy Subsidiary and/or spin-off such
Subsidiary as a dividend to existing shareholders of Borrower's Stock, or (ii) cause
assets relating solely to the Pharmacy Operation to be sold or assigned for fair market value in a
bona fide arms-length transaction with a Person not constituting an Affiliate of Borrower,
in each case, only if the following conditions are satisfied: (a) Borrower shall
have provided FINOVA with not less than thirty (30) days prior written notice thereof, together with
copies of the proposed documentation relating thereto, and FINOVA shall have determined in good
faith that only assets relating exclusively to the Pharmacy Operation are the subject of the
proposed transaction; and (b) no Event of Default shall then be outstanding or shall result from
giving effect to such proposed transaction. In the event a Pharmacy Subsidiary is established in
accordance with the terms set forth above and No Event of Default shall have occurred and remain
continuing, Borrower shall have no obligation under this Agreement or any other Loan Document to
pledge the Stock of such Pharmacy Subsidiary or cause such Pharmacy Subsidiary to grant a guarantee
and/or a lien in favor of FINOVA to secure the Obligations. If an Event of Default shall have
occurred and be continuing, and no initial public offering and/or spin-off shall have yet occurred
with respect to the Transplant Subsidiary, Borrower shall, promptly upon FINOVA's written request,
cause the Pharmacy Subsidiary to execute such guaranty and security agreements with respect to the
Obligations as FINOVA may request and pledge all outstanding Stock of the Transplant Subsidiary
owned by Borrower or any other Subsidiary of Borrower to FINOVA to secure the Obligations.
Self-Service Storage
Facility.
Change or otherwise modify the designation of FINOVA as an "Authorized Agent"
and a "Alternate Contact" in connection with the Self-Service Storage Facility; provided,
however, that so long as no Event of Default shall have occurred or is continuing, FINOVA
agrees that it shall not remove the Collateral located therein or terminate the account associated
therewith.
DEFAULT AND
REMEDIES.
Events of Default
. Any one or more of the following events shall constitute an Event of
Default under this Agreement:
Borrower fails to pay when due and payable any portion of the Obligations at
stated maturity, upon acceleration or otherwise;
Borrower or any other Loan Party fails or neglects to perform, keep, or
observe any Obligation including, but not limited to, any term, provision, condition, covenant or
agreement contained in any Loan Document to which Borrower or such other Loan Party is a
party;
Any material adverse change occurs in Borrower's business, assets,
operations, prospects or condition, financial or otherwise, as determined by FINOVA in its Permitted
Discretion;
The value or priority of FINOVA's security interest in the Collateral is
materially impaired, as determined by FINOVA in its Permitted Discretion;
Any portion of Borrower's assets in excess of $100,000 is seized, attached,
subjected to a writ or distress warrant, is levied upon or comes into the possession of any judicial
officer;
Borrower shall generally not pay its debts as they become due or shall enter
into any agreement (whether written or oral), or offer to enter into any agreement, with all or a
significant number of its creditors regarding any moratorium or other indulgence with respect to its
debts or the participation of such creditors or their representatives in the supervision, management
or control of the business of Borrower;
Any bankruptcy or other insolvency proceeding is commenced by Borrower, or
any such proceeding is commenced against Borrower and remains undischarged or unstayed for forty-
five (45) days;
Any notice of lien, levy or assessment is filed of record with respect to any
portion of Borrower's assets and Borrower fails to remove such lien, levy or assessment in excess of
$250,000 within ten (10) Business Days of learning of same, provided however, that if FINOVA
determines in its Permitted Discretion that such lien, levy or assessment cannot be removed within
such time period and that Borrower has meritorious defenses to such action, then it will not be an
Event of Default so long as Borrower, within the ten (10) Business Day time period, commences and
thereafter diligently pursues its removal;
Any Material Judgment is entered against Borrower or any Loan Party;
Any default shall occur under (i) any material agreement between Borrower and
any third party including, without limitation, any default which would result in a right by such
third party to accelerate the maturity of any Indebtedness of Borrower to such third party, but only
so long as such default is likely to result in damages of $250,000 or more, or (ii) any Subordinated
Debt;
Except as expressly set forth in Sections 5.18(a), (b) and (c) hereof with
respect to certain types of violations of such sections, any representation or warranty made or
deemed to be made by Borrower, any Affiliate or any other Loan Party in any Loan Document or any
other statement, document or report made or delivered to FINOVA in connection therewith shall prove
to have been misleading in any material respect;
Any Loan Party breaches or violates, terminates or attempts to terminate any
Loan Document delivered in connection herewith;
Any of the following which could have a material adverse effect on the
financial condition of Borrower; any Prohibited Transaction or Reportable Event shall occur with
respect to a Plan; any lien upon the assets of Borrower in connection with any Plan shall arise;
Borrower or any of its ERISA Affiliates shall fail to make full payment when due of all amounts
which Borrower or any of its ERISA Affiliates may be required to pay to any Plan or any
Multiemployer Plan as one or more contributions thereto; Borrower or any of its ERISA Affiliates
creates or permits the creation of any accumulated funding deficiency in any Plan, whether or not
waived; or
The Co-Promotion Agreement shall have been terminated, revoked or cancelled
for any reason; and
Any Change of Control shall occur.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, FINOVA RESERVES THE RIGHT TO
CEASE MAKING ANY ADVANCES OR LOANS IF AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING.
Remedies
. Upon the occurrence of an Event of Default, FINOVA may, at its option and
in addition to all of its other rights under the Loan Documents, cease making Loans, terminate this
Agreement and/or declare all of the Obligations to be immediately payable in full. Borrower agrees
that FINOVA shall also have all of its rights and remedies under applicable law, including, without
limitation, the default rights and remedies of a secured party under the Code, and upon the
occurrence of an Event of Default Borrower hereby consents to the appointment of a receiver by
FINOVA in any action initiated by FINOVA pursuant to this Agreement and to the jurisdiction and
venue set forth in Section 9.26 hereof, and Borrower waives notice and posting of a bond in
connection therewith. Further, FINOVA may, at any time, take possession of the Collateral and keep
it on Borrower's premises, at no cost to FINOVA, or remove any part of it to such other place(s) as
FINOVA may desire, or Borrower shall, upon FINOVA's demand, at Borrower's sole cost, assemble the
Collateral and make it available to FINOVA at a place reasonably convenient to FINOVA. FINOVA may
sell and deliver any Collateral at public or private sales, for cash, upon credit or otherwise, at
such prices and upon such terms as FINOVA deems advisable, at FINOVA's discretion, and may, if
FINOVA deems it reasonable, postpone or adjourn any sale of the Collateral by an announcement at the
time and place of sale or of such postponed or adjourned sale without giving a new notice of sale.
Borrower agrees that FINOVA has no obligation to preserve rights to the Collateral or ▇▇▇▇▇▇▇▇ any
Collateral for the benefit of any Person. FINOVA is hereby granted a license or other right to use,
without charge, Borrower's labels, patents, copyrights, name, trade secrets, trade names, trademarks
and advertising matter, or any similar property, in completing production, advertising or selling
any Collateral and Borrower's rights under all licenses and all franchise agreements shall inure to
FINOVA's benefit. Any requirement of reasonable notice shall be met if such notice is mailed postage
prepaid to Borrower at its address set forth in the heading to this Agreement at least five (5) days
before sale or other disposition. The proceeds of sale shall be applied, first, to all attorneys
fees and other expenses of sale, and second, to the Obligations in such order as FINOVA shall elect.
FINOVA shall return any excess to Borrower and Borrower shall remain liable for any deficiency to
the fullest extent permitted by law.
Standards for Determining Commercial
Reasonableness
. Borrower and FINOVA agree that the following conduct by FINOVA with
respect to any disposition of Collateral shall conclusively be deemed commercially reasonable (but
other conduct by FINOVA, including, but not limited to, FINOVA's use of other or different times,
places and manners of noticing and conducting any disposition of Collateral shall not be deemed
unreasonable): Any public or private disposition: (i) as to which on no later than the fifth
calendar day prior thereto written notice thereof is mailed or personally delivered to Borrower and,
with respect to any public disposition, on no later than the fifth calendar day prior thereto notice
thereof describing in general non-specific terms, the Collateral to be disposed of is published once
in a newspaper of general circulation in the county where the sale is to be conducted (provided that
no notice of any public or private disposition need be given to the Borrower or published if the
Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold
on a recognized market); (ii) which is conducted at any place designated by FINOVA, with or without
the Collateral being present; and (iii) which commences at any time between 8:00 a.m. and 5:00 p.m.
Without limiting the generality of the foregoing, Borrower expressly agrees that, with respect to
any disposition of accounts, instruments and general intangibles, it shall be commercially
reasonable for FINOVA to direct any prospective purchaser thereof to ascertain directly from
Borrower any and all information concerning the same, including, but not limited to, the terms of
payment, aging and delinquency, if any, the financial condition of any obligor or account debtor
thereon or guarantor thereof, and any collateral therefor. Without limiting any of the other
provisions set forth herein or in any other Loan Document, Borrower acknowledges and agrees that
upon the occurrence and during the continuation of any Trigger Event, FINOVA shall no longer have
any obligation to fund any advances of Revolving B Credit Loans, may, without notice, liquidate and
apply all or any portion of the Cash Collateral to payment of the Obligations owing in respect of
Revolving B Credit Loans; provided that if such Trigger Event is also an Event of Default, FINOVA
shall be further entitled to apply all or any portion of the Cash Collateral on deposit in the
Control Account to payment of any and all Obligations in such order as FINOVA may elect in its sole
discretion. Borrower acknowledges and agrees that FINOVA, in addition to all of its other rights
and remedies under the Loan Documents or under applicable law, may, in its sole discretion, at
anytime from and after the occurrence of an Event of Default, appoint a licensed collateral agent or
assign a portion of its rights under the Loan Documents with respect to any Inventory subject to
regulation under applicable state or federal law ("Regulated Inventory") to a licensed
distributor for repossessing, foreclosing upon, selling or disposing of all or any portion of such
Regulated Inventory. Given the fact that certain of the Inventory is Regulated Inventory, Borrower
acknowledges that FINOVA and/or its designees or assignees may experience greater difficulty and
higher expense in arranging for the realization of FINOVA's (or its assignee's) Lien rights with
respect to such Regulated Inventory and/or the sale or other disposition of the same and agrees that
all such additional costs and expenses incurred by FINOVA shall be subject to reimbursement under
Section 8.1 of this Agreement.
EXPENSES AND
INDEMNITIES
Expenses
. Borrower covenants that, so long as any Obligation remains outstanding and
this Agreement remains in effect, it shall promptly reimburse FINOVA for all costs, fees and
expenses incurred by FINOVA in connection with the negotiation, preparation, execution, delivery,
administration and enforcement of each of the Loan Documents, including, but not limited to, the
attorneys' and paralegals' fees of in-house and outside counsel, expert witness fees, lien, title
search and insurance fees, appraisal fees, all charges and expenses incurred in connection with any
and all environmental reports and environmental remediation activities, and all other costs,
expenses, taxes and filing or recording fees payable in connection with the transactions
contemplated by this Agreement, including without limitation all such costs, fees and expenses as
FINOVA shall incur or for which FINOVA shall become obligated in connection with (i) any inspection
or verification of the Collateral, (ii) any proceeding relating to the Loan Documents or the
Collateral, (iii) actions taken with respect to the Collateral and FINOVA's security interest
therein, including, without limitation, the defense or prosecution of any action involving FINOVA
and Borrower or any third party, (iv) enforcement of any of FINOVA's rights and remedies with
respect to the Obligations or Collateral and (v) consultation with FINOVA's attorneys and
participation in any workout, bankruptcy or other insolvency or other proceeding involving any Loan
Party or any Affiliate, whether or not suit is filed or the issues are peculiar to federal
bankruptcy or state insolvency laws. Borrower shall also pay all FINOVA charges in connection with
bank wire transfers, forwarding of loan proceeds, deposits of checks and other items of payment,
returned checks, establishment and maintenance of lockboxes and other Blocked Accounts, and all
other bank and administrative matters, in accordance with FINOVA's schedule of bank and
administrative fees and charges in effect from time to time.
Environmental Matters.
The Environmental Certificate dated on or about the date of this Agreement is
incorporated herein for all purposes as if fully stated in this Agreement.
MISCELLANEOUS.
Examination of Records; Financial
Reporting.
Examinations
. FINOVA shall at all reasonable times have full access to and the right to
examine, audit, make abstracts and copies from and inspect Borrower's records, files, books of
account and all other documents, instruments and agreements relating to the Collateral and the right
to check, test and appraise the Collateral (consistent with the State and Federal laws regarding
patient confidentiality); provided however, that if no Event of Default has occurred and is
continuing, FINOVA shall give reasonable prior notice to Borrower of any such examination. Borrower
shall deliver to FINOVA any instrument necessary for FINOVA to obtain records from any service
bureau maintaining records for Borrower. All instruments and certificates prepared by Borrower
showing the value of any of the Collateral shall be accompanied, upon FINOVA's request, by copies of
related purchase orders and invoices and records relating to the applications of collections of Rx
Receivables (including Misdirected Payments). FINOVA may, at any time upon the occurrence and
during the continuation of an Event of Default, and after any cure period has expired, remove from
Borrower's premises Borrower's books and records (or copies thereof) or require Borrower to deliver
such books and records or copies to FINOVA. FINOVA may, without expense to FINOVA, use such of
Borrower's personnel, supplies and premises as may be reasonably necessary for maintaining or
enforcing FINOVA's security interest.
Reporting Requirements
. Borrower shall furnish FINOVA, upon request, such information and
statements as FINOVA shall request from time to time regarding Borrower's business affairs,
financial condition and the results of its operations. Without limiting the generality of the
foregoing, Borrower shall provide FINOVA with the information set forth on Exhibit A attached
hereto.
Term; Termination.
Term
. The Initial Term of the Revolving Credit Loans facility and the obligation
of FINOVA to make advances with respect thereto in accordance with this Agreement shall be as set
forth on the Schedule, and if the parties hereto shall so agree in writing, the Revolving Credit
Loans facility and this Agreement shall be renewed for one or more Renewal Term(s) as set forth in
the Schedule, unless earlier terminated as provided herein.
Prior Notice
. Each party shall have the right to terminate this Agreement effective at
the end of the Initial Term or at the end of any Renewal Term by giving the other party written
notice not less than sixty (60) days prior to the effective date of such termination, by registered
or certified mail.
Payment in Full
. Upon the effective date of termination, the Obligations shall become
immediately due and payable in full in cash.
Early Termination; Termination
Fee
. In addition to the procedure set forth in Section 9.2(b), Borrower may
terminate this Agreement at any time but only upon sixty (60) days' prior written notice and
prepayment of the Obligations. Upon any such early termination by Borrower or any termination of
this Agreement by FINOVA upon the occurrence of an Event of Default, then, and in any such event,
Borrower shall pay to FINOVA upon the effective date of such termination a fee (the
"Termination Fee") in an amount equal to the amount shown on the Schedule.
Recourse to Security; Certain Waivers
. All Obligations shall be payable by Borrower as provided for herein and,
in full, at the termination of this Agreement; recourse to security shall not be required at any
time. Borrower waives presentment and protest of any instrument and notice thereof, notice of
default and, to the extent permitted by applicable law, all other notices to which Borrower might
otherwise be entitled.
No Waiver by FINOVA
. Neither FINOVA's failure to exercise any right, remedy or option under
this Agreement, any supplement, the Loan Documents or other agreement between FINOVA and Borrower
nor any delay by FINOVA in exercising the same shall operate as a waiver. An Event of Default shall
exist or continue or be continuing until such Event of Default is waived in writing by FINOVA as
herein provided. No waiver by FINOVA shall be effective unless in writing and then only to the
extent stated. No waiver by FINOVA shall affect its right to require strict performance of this
Agreement. FINOVA's rights and remedies shall be cumulative and not exclusive.
Binding on Successor and Assigns
. All terms, conditions, promises, covenants, provisions and warranties
shall inure to the benefit of and bind FINOVA's and Borrower's respective representatives,
successors and assigns.
Severability
. If any provision of this Agreement shall be prohibited or invalid under
applicable law, it shall be ineffective only to such extent, without invalidating the remainder of
this Agreement.
Amendments; Assignments
. This Agreement may not be modified, altered or amended, except by an
agreement in writing signed by Borrower and FINOVA. Borrower may not sell, assign or transfer any
interest in this Agreement or any other Loan Document, or any portion thereof, including, without
limitation, any of Borrower's rights, title, interests, remedies, powers and duties hereunder or
thereunder. Borrower hereby consents to FINOVA's participation, sale, assignment, transfer or other
disposition, at any time or times hereafter, of this Agreement and any of the other Loan Documents,
or of any portion hereof or thereof, including, without limitation, FINOVA's rights, title,
interests, remedies, powers and duties hereunder or thereunder. In connection therewith, FINOVA may
disclose all documents and information which FINOVA now or hereafter may have relating to Borrower
or Borrower's business. To the extent that FINOVA assigns its rights and obligations hereunder to a
third party, FINOVA shall thereafter be released from such assigned obligations to Borrower and such
assignment shall effect a novation between Borrower and such third party.
Integration
. This Agreement, together with the Schedule (which is a part hereof) and
the other Loan Documents, reflect the entire understanding of the parties with respect to the
transactions contemplated hereby.
Survival
. All of the representations and warranties of Borrower contained in this
Agreement shall survive the execution, delivery and acceptance of this Agreement by the parties. No
termination of this Agreement or of any guaranty of the Obligations shall affect or impair the
powers, obligations, duties, rights, representations, warranties or liabilities of the parties
hereto and all shall survive such termination.
Evidence of Obligations
. Each Obligation may, in FINOVA's discretion, be evidenced by notes or
other instruments issued or made by Borrower to FINOVA. If not so evidenced, such Obligation shall
be evidenced solely by entries upon FINOVA's books and records.
Loan Requests
. Each oral or written request for a loan by any Person who purports to be
any employee, officer or authorized agent of Borrower shall be made to FINOVA on or prior to 11:00
a.m., Los Angeles time, on the Business Day on which the proceeds thereof are requested to be paid
to Borrower and shall be conclusively presumed to be made by a Person authorized by Borrower to do
so and the crediting of a loan to Borrower's operating account shall conclusively establish
Borrower's obligation to repay such loan. Unless and until Borrower otherwise directs FINOVA in
writing, all loans shall be wired to Borrower's operating account set forth on the Schedule.
Notices
. Any written notice, consent or other communication provided for in this
Agreement shall be delivered personally (effective upon delivery), via facsimile (effective upon
confirmation of transmission), via overnight courier (effective the next Business Day after dispatch
if instructed to deliver on next Business Day) or via U.S. Mail (effective 3 days after mailing,
postage prepaid, first class) to each party at its address(es) and/or facsimile number(s) set forth
below its signature, or to such other address as either party shall specify to the other in writing
from time to time.
Brokerage Fees
. Borrower represents and warrants to FINOVA that, except for a fee to
Reedland Capital in an amount not to exceed $450,000 and the grant of certain warrant rights for
50,000 shares of Borrower's common stock (for which the Borrower shall be solely liable), with
respect to the financing transaction herein contemplated, no Person is entitled to any brokerage fee
or other commission and Borrower agrees to indemnify and hold FINOVA harmless against any and all
such claims.
Disclosure
. No representation or warranty made by Borrower in this Agreement, or in
any financial statement, report, certificate or any other document furnished in connection herewith
contains any untrue statement of a material fact or omits to state any material fact necessary to
make the statements herein or therein not misleading. There is no fact known to Borrower or which
reasonably should be known to Borrower which Borrower has not disclosed to FINOVA in writing with
respect to the transactions contemplated by this Agreement which materially and adversely affects
the business, assets, operations, prospects or condition (financial or otherwise), of Borrower.
Publicity
. Subject to the prior written approval of Borrower, such approval not to be
unreasonably withheld or delayed, FINOVA is hereby authorized to issue appropriate press releases
and to cause a tombstone to be published announcing the consummation of this transaction and the
aggregate amount thereof.
Captions
. The Section titles contained in this Agreement are without substantive
meaning and are not part of this Agreement.
Injunctive Relief
. Borrower recognizes that, in the event Borrower fails to perform, observe
or discharge any of its Obligations under this Agreement, any remedy at law may prove to be
inadequate relief to FINOVA. Therefore, FINOVA, if it so requests, shall be entitled to temporary
and permanent injunctive relief in any such case without the necessity of proving actual
damages.
Counterparts; Facsimile Execution
. This Agreement may be executed in one or more counterparts, each of which
taken together shall constitute one and the same instrument, admissible into evidence. Delivery of
an executed counterpart of this Agreement by telefacsimile shall be equally as effective as delivery
of a manually executed counterpart of this Agreement. Any party delivering an executed counterpart
of this Agreement by telefacsimile shall also deliver a manually executed counterpart of this
Agreement, but the failure to deliver a manually executed counterpart shall not affect the validity,
enforceability, and binding effect of this Agreement.
Construction
. The parties acknowledge that each party and its counsel have reviewed this
Agreement and have participated jointly in the negotiations and drafting of this Agreement and
hereby agree that the normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation of this Agreement or
any amendments or exhibits hereto.
Time of Essence
. Time is of the essence for the performance by Borrower of the Obligations
set forth in this Agreement.
Limitation of Actions
. Borrower agrees that any claim or cause of action by Borrower against
FINOVA, or any of FINOVA's directors, officers, employees, agents, accountants or attorneys, based
upon, arising from, or relating to this Agreement, or any other present or future agreement, or any
other transaction contemplated hereby or thereby or relating hereto or thereto, or any other matter,
cause or thing whatsoever, whether or not relating hereto or thereto, occurred, done, omitted or
suffered to be done by FINOVA, or by FINOVA's directors, officers, employees, agents, accountants or
attorneys, whether sounding in contract or in tort or otherwise, shall be barred unless asserted by
Borrower by the commencement of an action or proceeding in a court of competent jurisdiction by the
filing of a complaint within one year after the first act, occurrence or omission upon which such
claim or cause of action, or any part thereof, is based and service of a summons and complaint on an
officer of FINOVA or any other Person authorized to accept service of process on behalf of FINOVA,
within 30 days thereafter. Borrower agrees that such one-year period of time is a reasonable and
sufficient time for Borrower to investigate and act upon any such claim or cause of action. The
one-year period provided herein shall not be waived, tolled, or extended except by a specific
written agreement of FINOVA. This provision shall survive any termination of this Loan Agreement or
any other agreement.
Liability
. Neither FINOVA nor any FINOVA Affiliate shall be liable for any indirect,
special, incidental or consequential damages in connection with any breach of contract, tort or
other wrong relating to this Agreement or the Obligations or the establishment, administration or
collection thereof (including without limitation damages for loss of profits, business interruption,
or the like), whether such damages are foreseeable or unforeseeable, even if FINOVA has been advised
of the possibility of such damages. Neither FINOVA, nor any FINOVA Affiliate shall be liable for
any claims, demands, losses or damages, of any kind whatsoever, made, claimed, incurred or suffered
by the Borrower through the ordinary negligence of FINOVA, or any FINOVA Affiliate. "FINOVA
Affiliate" shall mean FINOVA's directors, officers, employees, agents, attorneys or any other
Person or entity affiliated with or representing FINOVA.
Notice of Breach by FINOVA
. Borrower agrees to give FINOVA written notice of (i) any action or
inaction by FINOVA or any attorney of FINOVA in connection with any Loan Documents that may be
actionable against FINOVA or any attorney of FINOVA or (ii) any defense to the payment of the
Obligations for any reason, including, but not limited to, commission of a tort or violation of any
contractual duty or duty implied by law. Borrower agrees that unless such notice is fully given as
promptly as possible (and in any event within thirty (30) days) after Borrower has knowledge, or
with the exercise of reasonable diligence should have had knowledge, of any such action, inaction or
defense, Borrower shall not assert, and Borrower shall be deemed to have waived, any claim or
defense arising therefrom.
Application of Insurance Proceeds
. The net proceeds of any casualty insurance insuring the Collateral, after
deducting all costs and expenses (including attorneys' fees) of collection, shall be applied, at
FINOVA's option, either toward replacing or restoring the Collateral, in a manner and on terms
satisfactory to FINOVA, or toward payment of the Obligations. Any proceeds applied to the payment
of Obligations shall be applied as set forth herein. In no event shall such application relieve
Borrower from payment in full of all installments of principal and interest which thereafter become
due in the order of maturity thereof. Notwithstanding the foregoing to the contrary, absent an
Event of Default, in the event that the total loss is less than $250,000, Borrower shall have the
option of repairing or replacing the damages or destroyed Collateral with equivalent replacement
Collateral.
Power of Attorney
. Borrower appoints FINOVA and its designees as Borrower's attorney, with
the power to endorse Borrower's name on any checks, notes, acceptances, money orders or other forms
of payment or security that come into FINOVA's possession; to sign Borrower's name on any invoice or
▇▇▇▇ of lading relating to any Receivable, on drafts against customers or Payors, on assignments of
Receivables, on notices of assignment, financing statements and other public records, on
verifications of accounts and on notices to customers or Payors or account debtors; to send requests
for verification of Receivables to customers or account debtors; after the occurrence of any Event
of Default, to notify the post office authorities to change the address for delivery of Borrower's
mail to an address designated by FINOVA and to open and dispose of all mail addressed to Borrower;
and to do all other things FINOVA deems necessary or desirable to carry out the terms of this
Agreement. Borrower hereby ratifies and approves all acts of such attorney. Neither FINOVA nor any
of its designees shall be liable for any acts or omissions nor for any error of judgment or mistake
of fact or law while acting as Borrower's attorney. This power, being coupled with an interest, is
irrevocable until the Obligations have been fully satisfied and FINOVA's obligation to provide loans
hereunder shall have terminated
Governing Law; Waivers
. THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ENFORCEMENT OF THE
OBLIGATIONS, SHALL BE INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE CONFLICT OF LAWS
RULES) OF THE STATE OF ARIZONA GOVERNING CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
BORROWER HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN
THE COUNTY OF MARICOPA IN THE STATE OF ARIZONA OR, AT THE SOLE OPTION OF FINOVA, IN ANY OTHER COURT
IN WHICH FINOVA SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER
JURISDICTION OVER THE MATTER IN CONTROVERSY. BORROWER WAIVES ANY OBJECTION OF FORUM NON CONVENIENS
AND VENUE. BORROWER FURTHER WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT, AND CONSENTS
THAT ALL SUCH SERVICE OF PROCESS BE MADE BY MESSENGER, CERTIFIED MAIL OR REGISTERED MAIL DIRECTED TO
BORROWER AT THE ADDRESS SET FORTH BELOW ITS SIGNATURE HERETO AND SERVICE SO MADE SHALL BE DEEMED TO
BE COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT OR THREE (3) DAYS AFTER THE SAME SHALL HAVE BEEN
POSTED TO BORROWER'S ADDRESS; BORROWER FURTHER WAIVES ANY RIGHT IT MAY OTHERWISE HAVE TO
COLLATERALLY ATTACK ANY JUDGMENT ENTERED AGAINST IT.
Mutual Waiver of Right to Jury Trial
. FINOVA AND BORROWER EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO: (I) THIS AGREEMENT; (II)
ANY OTHER PRESENT OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN FINOVA AND BORROWER; OR (III) ANY
CONDUCT, ACTS OR OMISSIONS OF FINOVA OR BORROWER OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH FINOVA OR BORROWER; IN EACH OF THE FOREGOING
CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
Lien Termination
. In recognition of FINOVA's right to have all of its attorneys' fees and
other expenses incurred in connection with this Agreement secured by the Collateral, notwithstanding
the payment in full of the Obligations, FINOVA shall not be required to execute or record any
terminations or satisfactions of any of its liens on the Collateral unless and until Borrower has
executed and delivered to FINOVA general releases of all claims, in form and substance satisfactory
to FINOVA.
DO NOT TAKE OUT THIS CONTINUOUS SECTION BREAK
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[SIGNATURE PAGE FOLLOWS]
Borrower:
SANGSTAT MEDICAL CORPORATION
Fed. Tax ID # ▇▇-▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. Dance
Title: Senior Vice President, Finance
Borrower's address for notices:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ Dance
acsimile: (▇▇▇) ▇▇▇-▇▇▇▇
|
FINOVA:
FINOVA CAPITAL CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
FINOVA's address for notices:
FINOVA Capital Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ & Portfolio Manager
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
|
|
with a copy to:
FINOVA Capital Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇'▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule to
Loan and Security Agreement
Borrower: SangStat Medical Corporation
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Date: April , 2000
This Schedule forms an integral part of the Loan and Security Agreement
between the above Borrower and FINOVA Capital Corporation dated the above date, and all references
herein and therein to "this Agreement" shall be deemed to refer to said Agreement and to
this Schedule.
TOTAL FACILITY (SECTION 2.1):
$30,000,000
LOANS (SECTION 2.2):
Revolving A Credit Loans: A revolving line of credit available to the
Borrower, so long as all applicable conditions precedent set forth in Section 4.2 of the Agreement,
are met consisting of loans against Borrower's Eligible Receivables ("Receivable
Loans") and against Borrower's Eligible Inventory ("Inventory
Loans") (the Receivable Loans and the Inventory Loans shall be collectively referred to
as the "Revolving A Credit Loans") in an aggregate outstanding principal
amount not to exceed the lesser of (a) or (b) below:
(a) Fifteen Million Dollars ($15,000,000) (the "Revolving A Credit
Limit"), less the Dilution Reserve, the Special Reserve and, without duplication, any
other Loan Reserves, or
(b) the sum of
(i) an amount equal to 85% of the net amount of Eligible Trade Receivables;
plus
(ii) an amount not to exceed the lesser of:
(A) the sum of (I) 25% of the value of Borrower's Eligible Inventory
consisting of raw materials and (II) 35% of the value of Borrower's Eligible Inventory consisting of
finished goods, in each case, calculated at the lower of cost or market value and determined on a
first-in, first-out basis, or
(B) $7,000,000; less
(iii) the Dilution Reserve, the Special Reserve and, without duplication, any
other Loan Reserves;
provided, however, in no event shall any Revolving A Credit Loans
be available to Borrower unless (i) Borrower shall have at all times Revolving B Credit Loans
outstanding in a principal amount of not less than Seven Million Five Hundred Thousand Dollars
($7,500,000), and (ii) the Dominion Account shall have been established at Silicon Valley Bank
pursuant to an agreement satisfactory to FINOVA.
Revolving B Credit Loans: A revolving line of credit available to
the Borrower, so long as all applicable conditions precedent set forth in Section 4.2 of the
Agreement are met, consisting of loans against Cash Collateral (the "Revolving B Credit
Loans") in an aggregate outstanding principal amount not to exceed the lesser of (a) or
(b) below:
(a) Fifteen Million Dollars ($15,000,000) (the "Revolving B Credit
Limit"), less any Loan Reserves (other than the Dilution Reserve or the Special Reserve
and without duplication of any other Loan Reserve which has been already applied to reduce loan
availability under the Revolving A Credit Loans), or
(b) an amount equal to 100% of Cash Collateral, less any Loan Reserves
(other than the Dilution Reserve or the Special Reserve, and without duplication of any other Loan
Reserve which has been already applied to reduce loan availability under the Revolving A Credit
Loans);
provided, however, the minimum amount of each Revolving B
Credit Loan (and the corresponding amount of Cash Collateral to be deposited into the Control
Account to provide availability for such advance) shall not be less than $3,000,000.
INTEREST AND FEES (SECTION 2.6):
Revolving A Interest Rate. Borrower shall pay FINOVA interest on the
daily outstanding balance of Borrower's Revolving A Credit Loans at a per annum rate of 1.50% in
excess of the rate of interest announced publicly by Citibank, N.A., (or any successor thereto),
from time to time as its "prime rate" (the "Prime Rate") which may not
be such institution's lowest rate. The interest rate chargeable hereunder in respect of the
Revolving A Credit Loans (herein, the "Revolving A Interest Rate") shall be increased or
decreased, as the case may be, without notice or demand of any kind, upon the announcement of any
change in the Prime Rate. Each change in the Prime Rate shall be effective hereunder on the first
day following the announcement of such change.
Interest charges and all other fees and charges under this Agreement shall be
computed on the basis of a year of 360 days and actual days elapsed and shall be payable to FINOVA
in arrears on the first day of each month.
Revolving B Interest Rate. Borrower shall pay FINOVA interest on
the daily outstanding balance of the Revolving B Credit Loans at a per annum rate equal to the Prime
Rate. The interest rate chargeable hereunder in respect of the Revolving B Credit Loans (herein, the
"Revolving B Interest Rate") shall be increased or decreased, as the case
may be, without notice or demand of any kind, upon the announcement of any change in the Prime Rate.
Each change in the Prime Rate shall be effective hereunder on the first day following the
announcement of such change.
Minimum Interest Charge. With respect to each calendar month or
portion thereof during the term of this Agreement (excluding the calendar month in which this
Agreement is executed), Borrower shall pay FINOVA, on the first day of the next month, as a minimum
charge, the amount by which the aggregate accrued interest on the Revolving A Credit Loans and the
Revolving B Credit Loans for such month is less than the product of Five Million Dollars
($5,000,000) multiplied by the Revolving B Interest Rate (the "Minimum Interest
Charge").
Collateral Monitoring Fee. At the closing of this transaction and
on the first day of each calendar month thereafter, Borrower shall pay FINOVA a collateral
monitoring fee of $750 ("Collateral Monitoring Fee"); provided however, that
Borrower agrees and acknowledges that each Loan Year a full year's fee shall be deemed earned at the
beginning of the respective Loan Year.
Closing Fee. At the closing of this transaction, Borrower shall
pay to FINOVA a closing fee equal to $300,000 less the commitment fee of $150,000 previously
received by FINOVA (the "Closing Fee"). Borrower acknowledges that the
Closing Fee was fully earned by FINOVA on the Closing Date.
Unused Line Fee. With respect to each fiscal month, or portion
thereof during the term of this Agreement, Borrower shall unconditionally pay to FINOVA a fee equal
to 0.375% per annum of the difference between the Revolving A Credit Limit and the average daily
outstanding balance of the Revolving A Credit Loans during such month, or portion thereof
("Unused Line Fee"), which fee shall be calculated and payable monthly, in
arrears, and shall be due and payable, commencing on the first day of the Borrower's first month
following the Closing Date and continuing on the first day of each month thereafter; provided
however, if the Revolving A Credit Limit shall be reduced in accordance with the provisions of this
Agreement to an amount less than that provided on the Closing Date, the Unused Line Fee shall be
calculated with reference to such lesser amount.
Examination Fee. Borrower agrees to pay to FINOVA an
examination fee in the amount of $600 per person per day in connection with each audit or
examination of Borrower performed by FINOVA prior to or after the date hereof, plus all costs and
expenses incurred in connection therewith (the "Examination Fee"). Such
examination shall be performed no less frequently than on a quarterly basis. Without limiting the
generality of the foregoing, Borrower shall pay to FINOVA an initial Examination Fee in an amount
equal to $600 per person per day, plus all costs and expenses incurred in connection therewith.
Such initial Examination Fee shall be deemed fully earned at the time of payment and due and payable
upon the closing of this transaction, and shall be deducted from any good faith deposit paid by
Borrower to FINOVA prior to the date of this Agreement.
BORROWER INFORMATION:
Borrower's State of Incorporation (Section 5.1): Delaware.
Borrower's copyrights, patents trademarks, and licenses (Section 5.5):
See Exhibit 5.5 hereto.
Fictitious Names/Prior Corporate Names (Section 5.2):
Prior Corporate Names: None.
Fictitious Names: None.
Borrower Locations (Section 5.16) See Exhibit 5.16 hereto.
Borrower's Federal Tax Identification Number (Section 5.16): 94-
3076069
FINANCIAL COVENANTS (SECTION 6.1.13):
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Borrower shall comply with all of the following covenants. Compliance shall be
determined as of the end of each month, except as otherwise specifically provided below:
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Tangible Net Worth
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shall mean, with respect to Borrower at any date, the Net Worth (as defined
below) of Borrower at such date, excluding, however, from the determination of the total assets of
Borrower at such date, (a) all goodwill, capitalized organizational expenses, capitalized research
and development expenses, trademarks, trade names, copyrights, patents, patent applications,
licenses and rights in any thereof, and all other intangible items, (b) all unamortized debt
discount and expense, (c) treasury Stock or the Stock of any Subsidiaries, and (d) any write-up in
the book value of any asset resulting from a revaluation thereof. As used herein, "Net
Worth" shall mean, with respect to Borrower as of any date of determination, the book value of
the assets of Borrower, minus (a) reserves applicable thereto, and minus (b) all of
such Borrower's liabilities (including accrued and deferred income taxes), all as determined in
accordance with GAAP.
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Minimum Tangible Net Worth
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Maintain at all times during each period set forth below Tangible Net Worth equal
to or greater than the amounts set forth below opposite such periods:
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Period
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Amount
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Closing Date - 6/30/00
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$24,800,000
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7/01/00 - 9/30/00
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$21,400,000
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10/01/00 - 12/31/00
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$18,000,000
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1/01/01 - 3/31/01
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$19,200,000
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4/01/01 - 6/30/01
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$20,000,000
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7/01/01 - 9/30/01
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$22,000,000
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10/01/01 - 12/31/01
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$25,000,000
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All times thereafter
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$27,200,000
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Liquidity
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Maintain at all times during each period set forth below Liquidity not less than
the amounts set forth below opposite such periods:
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Period
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Amount
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Closing Date - 6/30/00
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$25,000,000
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7/01/00 - 9/30/00
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$20,000,000
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10/01/00 - 12/31/00
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$12,000,000
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1/01/01 - 3/31/01
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$8,000,000
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4/01/01 - 6/30/01
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$5,000,000
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7/01/01 - 9/30/01
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$5,000,000
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10/01/01 - 12/31/01
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$5,000,000
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All times thereafter
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$7,500,000
NEGATIVE COVENANTS (SECTION 6.2):
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Employee Advances:
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Borrower shall not make any loans or advances to employees except in the ordinary
course of business and consistent with past practices of Borrower in an aggregate amount not
exceeding at any time $1,600,000, and in no event shall Borrower make any new loans or advances to
employees during the term of this Agreement in excess of $800,000.
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Existing Guaranties:
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See Exhibit 6.2.5.
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Capital Expenditures:
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Borrower shall not make or incur any Capital Expenditure if, after giving effect
thereto, the aggregate amount of all Capital Expenditures by Borrower (i) in the fiscal year ended
December 31, 2000 would exceed $3,500,000, and (ii) any fiscal year thereafter would exceed
$2,500,000.
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Compensation:
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Borrower shall not pay total compensation, including salaries, withdrawals, fees,
bonuses, commissions, drawing accounts and other payments, whether directly or indirectly, in money
or otherwise, during any fiscal year to all of Borrower's executives, officers and directors (or any
relative thereof) in an amount in excess of the amount authorized by the Compensation Committee of
the Board of Directors of Borrower.
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Indebtedness for Borrowed Money:
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Borrower shall not create, incur, assume or permit to exist any Indebtedness for
Borrowed Money in excess of $500,000 other than (i) the Obligations, and (ii) other Indebtedness
existing on the date of this Agreement and reflected in Exhibit 6.2.11 attached hereto (other than
Indebtedness paid on the date of this Agreement from proceeds of the initial advances hereunder) and
(iii) Subordinated Debt.
TERM (SECTION 9.2):
The initial term of this Agreement shall be three (3) years from the date
hereof (the "Initial Term") and if the parties hereto shall so agree in
writing, shall be renewed for successive periods of one (1) year each (each, a "Renewal
Term"), unless earlier terminated as provided in Section 7 or 9.2 above or elsewhere in
this Agreement.
TERMINATION FEE (SECTION 9.2):
The Termination Fee applicable to the Revolving Credit Loans facility
provided for in Section 9.2(d) shall be an amount equal to the following percentage of the Revolving
Credit Limit:
(i) Two percent (2%), if such early termination occurs on or prior to the first
anniversary of the Closing Date of this Agreement; and
(ii) One half of one percent (0.50%), if such early termination occurs after the
first anniversary of the Closing Date of this Agreement but prior to the second anniversary of the
Closing Date of this Agreement. No Termination Fee shall be applicable from and after the second
anniversary of the Closing Date.
DISBURSEMENT (SECTION 9.11):
Unless and until Borrower otherwise directs FINOVA in writing, all loans
shall be wired to Borrower's following operating account:
Silicon Valley Bank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA # ▇▇▇▇▇▇▇▇▇
for credit to SangStat Medical Corporation
checking account number 273004970
ADDITIONAL PROVISIONS:
1. Qualified to do Business in Tennessee. Within thirty (30) days
after the Closing Date, Borrower shall have taken all steps necessary to duly qualify to do business
as a foreign corporation in Tennessee, and shall have provided FINOVA with a good standing
certificate (or its equivalent) from the Secretary of State of the State of Tennessee evidencing the
same.
2. French Legal Opinion. Within ten (10) days after the Closing Date,
Borrower shall have taken all steps and delivered all documents necessary to cause DePardieu Brocas
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ to issue their legal opinion in favor of FINOVA, including, without
limitation:
(i) share transfer register evidencing the pledge of 100% of the outstanding
voting stock of SangStat Atlantique to FINOVA;
(ii) share transfer register evidencing the pledge of 100% of the outstanding
voting stock of IMTIX SangStat to FINOVA;
(iii) shareholders' resolutions of SangStat Atlantique approving the
pledges;
(iv) evidence of the authority of the signatory of the pledge agreements to
pledge the shares in SangStat Atlantique and IMTIX SangStat in favor of FINOVA;
(v) certified articles of association of SangStat Atlantique and certificate
of incorporation of SangStat Atlantique; and
(vi) certified articles of association of IMTIX Atlantique and certificate of
incorporation of IMTIX Atlantique.
Borrower:
SANGSTAT MEDICAL CORPORATION
By______________________________
Title____________________________
FINOVA:
FINOVA CAPITAL CORPORATION
By______________________________
Title_____________________________
EXHIBIT A - REPORTING REQUIREMENTS
INSTRUCTIONS TO SANGSTAT MEDICAL CORPORATION ("BORROWER") FOR THE
HANDLING OF BORROWER'S ACCOUNT WITH FINOVA CAPITAL CORPORATION ("FINOVA")
1. On a weekly basis (and on each day on
which Borrower shall make a request for an advance), FINOVA's standard form collateral and loan
report, together with accounts receivable certifications and notice of assignment documents on a
daily basis or as described in the Schedule, together with cash receipt and revenue reports.
2. Upon FINOVA's request, copies of sales journals,
cash receipt journals, and deposit slips, copies of service invoices, customer statements and credit
memoranda issued, remittance advices and reports, evidence of billing and copies of shipping and
delivery documents.
3. Within five (5) days of the date due (or earlier if
available) all cost reports (interim and annual) from all Governmental Authorities or other Persons,
as applicable.
4. Within ten (10) days after the end of each
month,
(a) monthly agings (aged from service date) and
reconciliations of Receivables (with listings of concentrated accounts);
(b) monthly agings (aged from invoice date) of
accounts payable, with outstanding and held check registers; and
(c) monthly perpetual inventory reports for the
Inventory valued on a first in, first out basis at the lower of cost or market (in accordance with
GAAP).
5. Within thirty (30) days after the end of each
month, unaudited financial statements with respect to the prior month prepared on a basis consistent
with such statements prepared in prior months and otherwise in accordance with GAAP other than lack
of footnotes and year-end adjustments.
6. Within thirty (30) days after the end of each
quarter, unaudited financial statement with respect to the prior quarter prepared on a basis
consistent with such statements prepared in prior quarters and otherwise in accordance with GAAP
other than lack of footnotes and year-end adjustments.
7. Audited annual consolidated and consolidating
financial statements, prepared in accordance with GAAP applied on a basis consistent with the most
recent Prepared Financials provided to FINOVA by Borrower, including balance sheets, income and cash
flow statements, accompanied by the unqualified report thereon of independent certified public
accountants acceptable to FINOVA, together with the management letter, in the form provided to the
directors and shareholders of Borrower, as soon as available, and in any event, within ninety (90)
days after the end of each of Borrower's fiscal years.
8. Within thirty (30) days prior to the end of each
fiscal year of Borrower annual operating budgets (including income statement, balance sheets and
cash flow statements, by month) for the upcoming fiscal year of Borrower.
9. Such certificates relating to any of the foregoing
as FINOVA may request, including, without limitation, a monthly certificate from the president and
the chief financial officer of Borrower ("Compliance Certificate") showing Borrower's
compliance with each of the financial covenants set forth in this Agreement, and stating whether any
Event of Default has occurred or event which, with giving of notice or the passage of time, or both,
would constitute an Event of Default, and if so, the steps being taken to prevent or cure such Event
of Default, and such other certificates relating to the reporting requirements set forth in this
Exhibit or in Section 9.1 of the Loan and Security Agreement, as FINOVA shall reasonably request.
All reports or financial statements submitted by Borrower shall be in reasonable detail and shall be
certified by the principal financial officer of Borrower as being complete and correct in all
material respects.
STATE OF )
) ss:
COUNTY OF )
BEFORE ME, a Notary Public, in and for said county and state, personally
appeared the above-named SangStat Medical Corporation, a Delaware corporation, by
____________________________ its _______________________________, who acknowledged that he/she did
sign the foregoing agreement and that the same is he/her free act and deed and the free act and deed
of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal at
______________________, this _______ day of ____________, 2000.
______________________
Notary Public
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