EXHIBIT 10.1
MASTER LOAN AND SECURITY AGREEMENT NO. 83834
DEBTOR: Triangle Pharmaceuticals, Inc. SECURED PARTY: ▇▇▇▇▇ Fargo Equipment Finance, Inc.
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In consideration of the mutual covenants set forth herein, the above named
Debtor and the above named Secured Party hereby enter into this
Master Loan and
Security Agreement and agree to the terms and conditions set forth herein. Each
Loan Schedule which may be executed by Debtor and Secured Party from time to
time pursuant to this
Master Loan and Security Agreement shall be deemed to be a
separate loan transaction incorporating all of the terms and conditions of this
Master Loan and Security Agreement. References in this
Master Loan and Security
Agreement to "Agreement", "hereunder" and "herein" shall mean a Loan Schedule
which incorporates this
Master Loan and Security Agreement.
1. LOAN SCHEDULES. Debtor shall evidence its agreement to enter into each
Agreement incorporating the terms hereof by executing and delivering to Secured
Party a Loan Schedule in the form annexed hereto as Exhibit 1. Debtor's
execution of a Loan Schedule shall obligate Debtor to make all of the payments
set forth in the Schedule of Obligations as set forth in the Loan Schedule. The
Loan Schedule shall set forth the amount of the Loan, the Term of the Loan, the
number of payments to be made and the amount and dates upon which such payments
are due. The Loan Schedule shall also set forth the Time Balance which means the
aggregate amount of all payments which are payable under the Agreement evidenced
by such Loan Schedule. Secured Party shall have no obligation to enter into or
accept any Loan Schedule and no Loan Schedule shall be binding upon Secured
Party until accepted by Secured Party which acceptance shall be evidenced only
by the execution of such Loan Schedule by Secured Party.
2. GRANT OF SECURITY INTEREST. Debtor hereby grants to Secured Party a
security interest in the personal property referred to and/or described in each
Loan Schedule (hereinafter with all renewals, substitutions and replacements and
all parts, repairs, improvements, additions and accessories incorporated therein
or affixed thereto referred to as the "Equipment"), together with any and all
proceeds thereof and any and all insurance policies and proceeds with respect
thereto.
3. OBLIGATIONS SECURED. The aforesaid security interest is granted by
Debtor as security for (a) the payment of the Time Balance (as set forth in the
Loan Schedule) and the payment and performance of all other indebtedness and
obligations now or hereafter owing by Debtor to Secured Party, of any and every
kind and description under the Agreement evidenced by such Loan Schedule, and
any and all renewals and extensions of the foregoing, and all interest, fees,
charges, expenses and attorneys' fees accruing or incurred in connection with
any of the foregoing (all of which Time Balance, indebtedness and obligations
are hereinafter referred to as the "Liabilities") and (b) the payment and
performance of all other indebtedness and obligations now or hereafter owing by
Debtor to Secured Party, of any and every kind and description, howsoever
arising or evidenced including without limitation those arising under other Loan
Schedules, (all of which indebtedness and obligations are hereinafter referred
to as the "Other Liabilities"). Subject to Paragraph 16, any nonpayment of any
installment or other amounts due hereunder shall result in the obligation on the
part of Debtor promptly to pay also an amount equal to five percent (5%), (or
the maximum rate permitted by law, whichever is less) of the installment or
other amounts overdue.
4. DISCLAIMER OF WARRANTIES. DEBTOR ACKNOWLEDGES THAT SECURED PARTY MAKES
NO WARRANTIES, EXPRESS OR IMPLIED, IN RESPECT OF THE EQUIPMENT, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY
PARTICULAR PURPOSE. Secured Party shall not be liable to Debtor for any loss,
damage or expense of any kind or nature caused, directly or indirectly, by any
Equipment secured hereunder or the use or maintenance thereof or the failure of
operation thereof, or the repair, service or adjustment thereof, or by any delay
or failure to provide any such maintenance, repairs, service or adjustment, or
by any interruption of service or loss of use thereof or for any loss of
business howsoever caused. The Equipment shall be shipped directly to Debtor by
the supplier thereof and Debtor agrees to accept such delivery. No defect or
unfitness of the Equipment, nor any failure or
delay on the part of the manufacturer or the shipper of the Equipment to deliver
the Equipment or any part thereof to Debtor, shall relieve Debtor of the
obligation to pay the Time Balance or any other obligation under this Agreement.
Secured Party shall have no obligation under this Agreement in respect of the
Equipment and shall have no obligation to install, erect, test, adjust or
service the Equipment. Secured Party agrees, so long as there shall not have
occurred or be continuing any Event of Default hereunder or event which with
lapse of time or notice, or both, might become an Event of Default hereunder,
that Secured Party will permit Debtor to enforce in Debtor's own name at
Debtor's sole expense any supplier's or manufacturer's warranty or agreement in
respect of the Equipment to the extent that such warranty or agreement is
assignable.
5. ASSIGNMENT. Any transaction evidenced by a Loan Schedule shall be
assignable by Secured Party, and by its assigns, without the consent of Debtor,
but Debtor shall not be obligated to any assignee except upon written notice of
such assignment from Secured Party or such assignee. The obligation of Debtor to
pay and perform the Liabilities to such assignee shall be absolute and
unconditional and shall not be affected by any circumstance whatsoever, and such
payments shall be made without interruption or abatement notwithstanding any
event or circumstance whatsoever, including, without limitation, the late
delivery, non-delivery, destruction or damage of or to the Equipment, the
deprivation or limitation of the use of the Equipment, the bankruptcy or
insolvency of Secured Party or Debtor or any disaffirmance of this Agreement by
or on behalf of Debtor and notwithstanding any defense, set-off, recoupment or
counterclaim or any other right whatsoever, whether by reason of breach of this
Agreement or of any warranty in respect of the Equipment or otherwise which
Debtor may now or hereafter have against Secured Party, and whether any such
event shall be by reason of any act or omission of Secured Party (including,
without limitation, any negligence of Secured Party) or otherwise; provided,
however, that nothing herein contained shall affect any right of Debtor to
enforce against Secured Party any claim which Debtor may have against Secured
Party in any manner other than by abatement, attachment or recoupment of,
interference with, or set-off, counterclaim or defense against, the
aforementioned payments to be made to such assignee. Debtor's undertaking herein
to pay and perform the Liabilities to an assignee of Secured Party shall
constitute a direct, independent and unconditional obligation of Debtor to said
assignee. Said assignee shall have no obligations under this Agreement or in
respect of the Equipment and shall have no obligation to install, erect, test,
adjust or service the Equipment. Debtor also acknowledges and agrees that any
assignee of Secured Party's interest in this Agreement shall have the right to
exercise all rights, privileges and remedies (either in its own name or in the
name of Secured Party) which by the terms of this Agreement are permitted to be
exercised by Secured Party.
6. DAMAGE TO OR LOSS OF THE EQUIPMENT; REQUISITION. Debtor assumes and
shall bear the entire risk of loss or damage to the Equipment from any and every
cause, whatsoever. No loss or damage to the Equipment or any part thereof shall
affect any obligation of Debtor with respect to the Liabilities and this
Agreement, which shall continue in full force and effect. Debtor shall advise
Secured Party in writing promptly of any item of Equipment lost or damaged and
of the circumstances and extent of such damage. If the Equipment is totally
destroyed, irreparably damaged, lost, stolen or title thereto shall be
requisitioned or taken by any governmental authority under the power of eminent
domain or otherwise, Debtor shall, at the option of Secured Party, replace the
same with like equipment in good repair, condition and working order, or pay to
Secured Party all Liabilities due and to become due, less the net amount of the
recovery, if any, actually received by Secured Party from insurance or otherwise
for such destruction, damage, loss, theft, requisition or taking. Whenever the
Equipment is destroyed or damaged and, in the sole discretion of Secured Party,
such destruction or damage can be repaired, Debtor shall, at its expense,
promptly effect such repairs as Secured Party shall deem necessary for
compliance with clause (a) of paragraph 8 below. Any proceeds of insurance
received by Secured Party with respect to such reparable damage to the Equipment
shall, at the election of Secured Party, be applied either to the repair of the
Equipment by payment by Secured Party directly to the party completing the
repairs, or to the reimbursement of Debtor for the cost of such repairs;
provided, however, that Secured Party shall have no obligation to make such
payment or any part thereof until receipt of such evidence as Secured Party
shall deem satisfactory that such repairs have been completed and further
provided that Secured Party may apply such proceeds to the payment of any of the
Liabilities or the Other Liabilities due if at the time such proceeds are
received by Secured Party there shall have occurred and be continuing any Event
of Default hereunder or any event which with lapse of time or notice, or both,
would become an Event of Default. Debtor shall, when and as requested by Secured
Party, undertake, by litigation or otherwise, in Debtor's name, the collection
of any claim against any person for such destruction, damage, loss, theft,
requisition or taking, but Secured Party shall not be obligated to undertake,
by litigation or
otherwise, the collection of any claim against any person for such destruction,
damage, loss, theft, requisition or taking.
7. REPRESENTATIONS AND WARRANTIES OF DEBTOR. Debtor represents and warrants
that: it has the right, power and authority to enter into and carry out the
terms and provisions of this Agreement; this Agreement constitutes a valid
obligation of the Debtor and is enforceable in accordance with its terms; and
entering into this Agreement and carrying out its terms and provisions will not
violate the terms or constitute a breach of any other agreement to which Debtor
is a party.
8. AFFIRMATIVE COVENANTS OF DEBTOR. Debtor shall (a) cause the Equipment to
be kept in good condition and use the Equipment only in the manner for which it
was designed and intended so as to subject it only to ordinary wear and tear and
cause to be made all needed and proper repairs, renewals and replacements
thereto; (b) maintain at all times property damage, fire, theft and
comprehensive insurance for the full replacement value of the Equipment, with
loss payable provisions in favor of Secured Party and any assignee of Secured
Party as their interests may appear, and maintain public liability insurance in
amounts satisfactory to Secured Party, naming Secured Party and any assignee of
Secured Party as insureds with all of said insurance and loss payable provisions
to be in form, substance and amount and written by companies approved by Secured
Party, and deliver the policies therefor, or duplicates thereof, to Secured
Party; (c) pay or reimburse Secured Party for any and all taxes, assessments and
other governmental charges of whatever kind or character, however designated
(together with any penalties, fines or interest thereon) levied or based upon or
with respect to the Equipment, the Liabilities or this Agreement or upon the
manufacture, purchase, ownership, delivery, possession, use, storage, operation,
maintenance, repair, return or other disposition of the Equipment, or upon any
receipts or earnings arising therefrom, or for titling or registering the
Equipment, or upon the income or other proceeds received with respect to the
Equipment or this Agreement provided, however, that Debtor shall pay taxes on or
measured by the net income of Secured Party and franchise taxes of Secured Party
only to the extent that such net income taxes or franchise taxes are levied or
assessed in lieu of any other taxes, assessments or other governmental charges
hereinabove described; (d) pay all shipping and delivery charges and other
expenses incurred in connection with the Equipment and pay all lawful claims,
whether for labor, materials, supplies, rents or services, which might or could
if unpaid become a lien on the Equipment; (e) comply with all governmental laws,
regulations, requirements and rules, all instructions and warranty requirements
of Secured Party or the manufacturer of the Equipment, and with the conditions
and requirements of all policies of insurance with respect to the Equipment and
this Agreement; (f) ▇▇▇▇ and identify the Equipment with all information and in
such manner as Secured Party may request from time to time and replace promptly
any such marking or identification which are removed, defaced or destroyed; (g)
at any and all times during business hours, grant to Secured Party free access
to enter upon the premises wherein the Equipment shall be located and permit
Secured Party to inspect the Equipment; (h) reimburse Secured Party for all
charges, costs and expenses (including attorneys' fees) incurred by Secured
Party in defending or protecting its interests in the Equipment, in the
attempted enforcement or enforcement of the provisions of this Agreement or in
the attempted collection or collection of any of the Liabilities; (i) indemnify
and hold any assignee of Secured Party, and Secured Party, harmless from and
against all claims, losses, liabilities, damages, judgments, suits, and all
legal proceedings, and any and all costs and expenses in connection therewith
(including attorneys' fees) arising out of or in any manner connected with the
manufacture, purchase, ownership, delivery, possession, use, storage, operation,
maintenance, repair, return or other disposition of the Equipment or with this
Agreement, including, without limitation, claims for injury to or death of
persons and for damage to property, and give Secured Party prompt notice of any
such claim or liability; and (j) maintain a system of accounts established and
administered in accordance with generally accepted accounting principles and
practices consistently applied, and, within thirty (30) days after the end of
each fiscal quarter, deliver to Secured Party a balance sheet as at the end of
such quarter and statement of operations for such quarter, and, within one
hundred and twenty (120) days after the end of each fiscal year, deliver to
Secured Party a balance sheet as at the end of such year and statement of
operations for such year, in each case prepared in accordance with generally
accepted accounting principles and practices consistently applied and certified
by Debtor's chief financial officer as fairly presenting the financial position
and results of operation of Debtor, and, in the case of year end financial
statements, certified by an independent accounting firm acceptable to Secured
Party.
9. NEGATIVE COVENANTS OF DEBTOR. Debtor shall not (a) create, incur, assume
or suffer to exist any
mortgage, lien, pledge or other encumbrance or attachment of any kind whatsoever
upon, affecting or with respect to the Equipment or this Agreement or any of
Debtor's interests hereunder; (b) make any changes or alterations in or to the
Equipment except as necessary for compliance with clause (a) of paragraph 8
above; (c) permit the name of any person, association or corporation other than
Secured Party to be placed on the Equipment as a designation that might be
interpreted as a claim of interest in the Equipment; (d) part with possession or
control of or suffer or allow to pass out of its possession or control any of
the Equipment or change the location of the Equipment or any part thereof from
the location shown above; (e) assign or in any way dispose of all or any part of
its rights or obligations under this Agreement or enter into any lease of all or
any part of the Equipment; (f) change its name or address from that set forth
above unless it shall have given Secured Party no less than thirty (30) days
prior written notice thereof; (g) sell any shares of its capital stock or
transfer any ownership interest in the Debtor to any person, persons, entity or
entities (whether in one single transaction or in multiple transactions) which
results in a transfer of a majority interest in the ownership and/or the control
of the Debtor from the person, persons, entity or entities who hold ownership
and/or control of the Debtor as of the date of this Agreement; or (h)
consolidate with or merge into or with any other entity, or purchase or
otherwise acquire all or substantially all of the assets or stock or other
ownership interest of any person or entity or sell, transfer, lease or otherwise
dispose of all or substantially all of Debtor's assets to any person or entity.
10. EQUIPMENT PERSONALTY. The Equipment is, and shall at all times be and
remain, personal property notwithstanding that the Equipment or any part thereof
may now be, or hereafter become, in any manner affixed or attached to, or
imbedded in, or permanently resting upon, real property or attached in any
manner to real property by cement, plaster, nails, bolts, screws or otherwise.
If requested by Secured Party with respect to any item of Equipment, Debtor will
obtain and deliver to Secured Party waivers of interest or liens in recordable
form, satisfactory to Secured Party, from all persons claiming any interest in
the real property on which such item of Equipment is installed or located.
11. EVENTS OF DEFAULT AND REMEDIES. If any one or more of the following
events ("Events of Default") shall occur:
(a) Debtor shall fail to make any payment in respect of the Liabilities
when due; or
(b) any certification, statement, representation, warranty or financial
report or statement heretofore or hereafter furnished by or on behalf of Debtor
or any guarantor of any or all of the Liabilities proves to have been false in
any material respect at the time as of which the facts therein set forth were
stated or certified or has omitted any material contingent or unliquidated
liability or claim against Debtor or any such guarantor; or
(c) Debtor or any guarantor of any or all of the Liabilities shall fail
to perform or observe any covenant, condition or agreement to be performed or
observed by it hereunder or under any guaranty agreement; or
(d) Debtor or any guarantor of any or all of the Liabilities shall be
in breach of or in default in the payment and performance of any obligation
relating to any of the Other Liabilities; or
(e) Debtor or any guarantor of any of Debtor's obligations hereunder
shall be in breach of or in default in the payment or performance of any
obligation owing to any bank, lender, lessor or financial institution, howsoever
arising, present or future, contracted for or acquired, and whether joint,
several, absolute, contingent, secured, unsecured, matured or unmatured; or
(f) Debtor or any guarantor of any or all of the Liabilities shall
cease doing business as a going concern, make an assignment for the benefit of
creditors, admit in writing its inability to pay its debts as they become due,
file a petition commencing a voluntary case under any chapter of Title 11 of the
United States Code entitled "Bankruptcy" (the "Bankruptcy Code"), be adjudicated
an insolvent, file a petition seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
arrangement under any present or future statute, law, rule or regulation or file
an answer admitting the material allegations of a petition filed against it in
any such proceeding, consent to the filing of such a petition or acquiescence in
the appointment of a trustee, receiver or liquidator of it or of all or any part
of its assets or properties, or take any action looking to its dissolution or
liquidation; or
(g) an order for relief against Debtor or any guarantor of any or all
of the Liabilities shall have been entered under any chapter of the Bankruptcy
Code or a decree or order by a court having jurisdiction in the premises shall
have been entered approving as properly filed a petition seeking reorganization,
arrangement, readjustment, liquidation, dissolution or similar relief against
Debtor or any guarantor of any or all of the Liabilities under any present or
future statute, law, rule or regulation, or within thirty (30) days after the
appointment without Debtor's or such guarantor's consent or acquiescence of any
trustee, receiver or liquidator of it or such guarantor or of all or any part of
its or such guarantor's assets and properties, such appointment shall not be
vacated, or an order, judgment or decree shall be entered against Debtor or such
guarantor by a court of competent jurisdiction and shall continue in effect for
any period of ten (10) consecutive days without a stay of execution, or any
execution or writ or process shall be issued under any action or proceeding
against Debtor whereby the Equipment or its use may be taken or restrained; or
(h) Debtor or any guarantor of any or all of the Liabilities shall
suffer an adverse material change in its financial condition as compared to such
condition as at the date hereof, and as a result of such change in condition
Secured Party deems itself or any of the Equipment to be insecure;
then and in any such event, Secured Party may, at the sole discretion of Secured
Party, without notice or demand and without limitation of any rights and
remedies of Secured Party under the Uniform Commercial Code, take any one or
more of the following steps:
(1) Declare all of the Time Balance to be due and payable, whereupon
the same shall forthwith mature and become due and payable as provided for in
paragraph 16 below, provided, however, upon the occurrence of any of the events
specified in subparagraphs (f) and (g) above, all sums as specified in this
clause (1) shall immediately be due and payable without notice to Debtor (the
date on which Secured Party declares all of the Time Balance to be due and
payable is hereinafter referred to as the "Declaration Date");
(2) proceed to protect and enforce its rights by suit in equity, action
at law or other appropriate proceedings, whether for the specific performance of
any agreement contained herein, or for an injunction against a violation of any
of the terms hereof, or in aid of the exercise of any other right, power or
remedy granted hereby or by law, equity or otherwise; and
(3) at any time and from time to time, with or without judicial process
and the aid or assistance of others, enter upon any premises wherein any of the
Equipment may be located and, without resistance or interference by Debtor, take
possession of the Equipment on any such premises, and require Debtor to assemble
and make available to Secured Party at the expense of Debtor any part or all of
the Equipment at any place or time designated by Secured Party; and remove any
part or all of the Equipment from any premises wherein the same may be located
for the purpose of effecting the sale or other disposition thereof; and sell,
resell, lease, assign and deliver, grant options for or otherwise dispose of any
or all of the Equipment in its then condition or following any commercially
reasonable preparation or processing, at public or private sale or proceedings,
by one or more contracts, in one or more parcels, at the same or different
times, with or without having the Equipment at the place of sale or other
disposition, for cash and/or credit, and upon any terms, at such place(s) and
time(s) and to such persons, firms or corporations as Secured Party shall deem
best, all without demand for performance or any notice or advertisement
whatsoever, except that Debtor shall be given five (5) business days' written
notice of the place and time of any public sale or of the time after which any
private sale or other intended disposition is to be made, which notice Debtor
hereby agrees shall be deemed reasonable notice thereof. If any of the Equipment
is sold by Secured Party upon credit or for future delivery, Secured Party shall
not be liable for the failure of the purchaser to pay for same and in such event
Secured Party may resell such Equipment. Secured Party may buy any part or all
of the Equipment at any public sale and if any part or all of the Equipment is
of a type customarily sold in a recognized market or which is the subject of
widely distributed standard price quotations Secured Party may buy at private
sale and may make payment therefor by application of all or a part of the
Liabilities and of all or a part of any Other Liabilities. Any personalty in or
attached to the Equipment when repossessed may be held by Secured Party without
any liability arising with respect thereto, and any and all claims in connection
with such personalty shall be deemed to have been waived unless notice of such
claim is made by certified or registered mail upon Secured Party within three
business days after repossession.
Secured Party shall apply the cash proceeds from any sale or other disposition
of the Equipment first, to the reasonable expenses of re-taking, holding,
preparing for sale, selling, leasing and the like, and to reasonable attorneys'
fees and other expenses which are to be paid or reimbursed to Secured Party
pursuant hereto, and second, to all outstanding portions of the Liabilities and
to any Other Liabilities in such order as Secured Party may elect, and third,
any surplus to Debtor, subject to any duty of Secured Party imposed by law to
the holder of any subordinate security interest in the Equipment known to
Secured Party; provided however, that Debtor shall remain liable with respect to
unpaid portions of the Liabilities owing by it and will pay Secured Party on
demand any deficiency remaining with interest as provided for in paragraph 16
below.
12. SECURED PARTY'S RIGHT TO PERFORM FOR DEBTOR. If Debtor fails to perform
or comply with any of its agreements contained herein Secured Party may perform
or comply with such agreement and the amount of any payments and expenses
incurred by Secured Party in connection with such performance or compliance,
together with interest thereon at the rate provided for in paragraph 16 below,
shall be deemed a part of the Liabilities and shall be payable by Debtor upon
demand.
13. FURTHER ASSURANCES. Debtor will cooperate with Secured Party for the
purpose of protecting the interests of Secured Party in the Equipment,
including, without limitation, the execution of all Uniform Commercial Code
financing statements requested by Secured Party. Secured Party and any assignee
of Secured Party are each authorized to the extent permitted by applicable law
to file one or more Uniform Commercial Code financing statements disclosing any
security interest in the Equipment without the signature of Debtor or signed by
Secured Party or any assignee of Secured Party as attorney-in-fact for Debtor.
Debtor will pay all costs of filing any financing, continuation or termination
statements with respect to this Agreement, including, without limitation, any
documentary stamp taxes relating thereto. Debtor will do whatever may be
necessary to have a statement of the interest of Secured Party and of any
assignee of Secured Party in the Equipment noted on any certificate of title
relating to the Equipment and will deposit said certificate with Secured Party
or such assignee. Debtor shall execute and deliver to Secured Party, upon
request, such other instruments and assurances as Secured Party deems necessary
or advisable for the implementation, effectuation, confirmation or perfection of
this Agreement and any rights of Secured Party hereunder.
14. NON-WAIVER; ETC. No course of dealing by Secured Party or Debtor or any
delay or omission on the part of Secured Party in exercising any rights
hereunder shall operate as a waiver of any rights of Secured Party. No waiver or
consent shall be binding upon Secured Party unless it is in writing and signed
by Secured Party. A waiver on any one occasion shall not be construed as a bar
to or a waiver of any right and/or remedy on any future occasion. To the extent
permitted by applicable law, Debtor hereby waives the benefit and advantage of,
and covenants not to assert against Secured Party, any valuation, inquisition,
stay, appraisement, extension or redemption laws now existing or which may
hereafter exist which, but for this provision, might be applicable to any sale
or other disposition made under the judgment, order or decree of any court or
under the powers of sale and other disposition conferred by this Agreement or
otherwise. Debtor hereby waives any right to a jury trial with respect to any
matter arising under or in connection with this Agreement.
15. ENTIRE AGREEMENT; SEVERABILITY; ETC. This Agreement constitutes the
entire agreement between Secured Party and Debtor and all conversations,
agreements and representations relating to this Agreement or to the Equipment
are integrated herein. If any provision hereof or any remedy herein provided for
shall be invalid under any applicable law, such provision or remedy shall be
inapplicable and deemed omitted, but the remaining provisions and remedies
hereunder shall be given effect in accordance with the intent hereof. Neither
this Agreement nor any term hereof may be changed, discharged, terminated or
waived except in an instrument in writing signed by the party against which
enforcement of the change, discharge, termination or waiver is sought. This
Agreement shall in all respects be governed by and construed in accordance with
the internal laws of the State of New York, including all matters of
construction, validity and performance, and shall be deemed a purchase money
security agreement within the meaning of the Uniform Commercial Code. The
captions in this Agreement are for convenience of reference only and shall not
define or limit any of the terms or provisions hereof. This Agreement shall
inure to the benefit of and be binding upon Secured Party and Debtor and their
respective successors and assigns, subject, however, to the limitations set
forth in this Agreement with respect to Debtor's assignment hereof. No right or
remedy referred to in this Agreement is
intended to be exclusive but each shall be cumulative and in addition to any
other right or remedy referred to in this Agreement or otherwise available to
Secured Party at law or in equity, and shall be in addition to the provisions
contained in any instrument referred to herein and any instrument supplemental
hereto. Debtor shall be liable for all costs and expenses, including attorneys'
fees and disbursements, incurred by reason of the occurrence of any Event of
Default or the exercise of Secured Party's remedies with respect thereto. Time
is of the essence with respect to this Agreement and all of its provision.
16. PREPAYMENT; REBATE; INTEREST. Except for the installment payments of
the Time Balance as set forth in the Schedule of Obligations, the Debtor may not
prepay the Time Balance, in whole or in part, at any time. In the event Secured
Party declares all of the Time Balance to be due and payable pursuant to clause
(1) of paragraph 11 above, Debtor shall pay to Secured Party an amount equal to
the sum of (a) all accrued and unpaid amounts as of the Declaration Date plus
interest thereon, and (b) the present value of all future installments set forth
in this Agreement over the remaining unexpired term of this Agreement discounted
to present value using a discount rate of four percent (4%), provided that the
amount of interest earned by Secured Party computed as aforesaid shall not
exceed the highest amount permitted by applicable law. The Time Balance as
reduced to present value in accordance with the preceding sentence shall bear
interest from and after the Declaration Date, and all other Liabilities due and
payable under this Agreement (including past due installments) shall bear
interest from and after their respective due dates, at the lesser of 1.5% per
month or the highest rate permitted by applicable law, provided, however, that
Debtor shall have no obligation to pay any interest on interest except to the
extent permitted by applicable law.
17. CONSENT TO JURISDICTION. Debtor hereby irrevocably consents to the
jurisdiction of the courts of the State of New York and of any federal court
located in such state in connection with any action or proceeding arising out of
or relating to this Agreement or the transactions contemplated hereby. Any such
action or proceeding will be maintained in the United States District Court for
the Southern District of New York or in any court of the State of New York
located in the County of New York and Debtor waives any objections based upon
venue or FORUM NON CONVENIENS in connection with any such action or proceeding.
Debtor consents that process in any such action or proceeding may be served upon
it by registered mail directed to Debtor at its address set forth at the head of
this Agreement or in any other manner permitted by applicable law or rules of
court. Debtor hereby irrevocably appoints Secretary of State of the State of New
York as its agent to receive service of process in any such action or
proceeding.
18. NOTICES. Notice hereunder shall be deemed given if served personally or
by certified or registered mail, return receipt requested, to Secured Party and
Debtor at their respective addresses set forth at the head of this Agreement.
Any party hereto may from to time by written notice to the other change the
address to which notices are to be sent to such party. A copy of any notice sent
by Debtor to Secured Party shall be concurrently sent by Debtor to any assignee
of Secured Party of which Debtor has notice.
The Debtor agrees to all the provisions set forth above. This Agreement
is executed pursuant to due authorization. DEBTOR ACKNOWLEDGES RECEIPT OF A
SIGNED TRUE COPY OF THIS AGREEMENT.
Date November 26, 2001 Accepted on November 30, 2001
TRIANGLE PHARMACEUTICALS, INC. (Debtor) ▇▇▇▇▇ FARGO EQUIPMENT FINANCE, INC. (Secured Party)
(Signature of Proprietor or name of
Corporation or Partnership)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------- ------------------
Its: Executive VP and Chief Financial Officer Its: Assistant Vice President
--------------------------------------------- -----------------------------
(if Corporation, President or Vice President
should sign and give official title;
if Partnership, state partner; if L.L.C.,
state member or manger)
This Agreement includes the attached Rider (containing amendments labeled 1-23)
which are incorporated into the Agreement. /s/ RA /s/
--------------- ------------
RIDER TO
MASTER LOAN AND SECURITY AGREEMENT NO. 83834
--------------------------------------------------------------------------------
▇▇▇▇▇ Fargo Equipment Finance, Inc. ("Secured Party") and Triangle
Pharmaceuticals, Inc. ("Debtor") hereby agree to amend the Agreement as follows:
1. In the eighth line of Section 3 of the Agreement, delete the words
"howsoever arising or evidenced including without limitation those" and
insert instead "under the Agreement evidenced by or".
2. In the seventh line of Section 6 of the Agreement, after the words
"Debtor shall, at the option of", insert the words "Debtor, unless an
Event of Default has occurred, otherwise at the option of", and in the
eleventh line of Section 6, after the words "damaged and, in the",
insert the words "discretion of Debtor, unless an Event of Default has
occurred, otherwise at the".
3. In the twenty-second line of Section 6 of the Agreement, after the
words "when and as", insert the word "reasonably".
4. In the third line of Section 8 (b) of the Agreement, delete the words
"satisfactory to Secured Party", and insert instead the words "equal to
those provided in the attached schedule" and in the sixth line of
Section 8 (b), delete the word "approved by Secured Party" and insert
instead the words "with an A.M. Best rating of at least A (Excellent)".
5. In the second line of Section 8 (g) of the Agreement, after the words
"business hours", insert the words "upon prior written notice by
facsimile of at least twenty-four (24) hours" and in the third line of
Section 8 (g) delete the word "free" and insert instead the word
"reasonable", and at the end of such Section, add the words "in
accordance with Debtor's customary security procedures with respect to
visitors".
6. In the first line of Section 8 (h) of the Agreement, before the word
"charges", insert the word "reasonable" and in the second line of
Section 8 (h), before the word "attorney's", insert the word
"reasonable".
7. In the third line of Section 8 (i) of the Agreement, before the word
"costs", insert the word "reasonable", and in the fourth line of
Section 8 (i), before the word "attorney's", insert the word
"reasonable".
8. In the third line of Section 8 (j) of the Agreement, delete the words
"thirty (30)", and insert instead the words "forty-five (45)".
9. In the second line of Section 9 (b) of the Agreement, delete the words
"except as" and insert instead the words "(collectively, the
"Alterations") except (i) as" and at the end of Section 9 (b), insert
the following words "; or (ii) such Alterations which may be removed
without any material damage to the Equipment or do not materially
reduce the use or value of the Equipment".
10. At the end of Section 9 (d) of the Agreement, add the words "unless it
shall have given Secured Party no less than thirty (30) days prior
written notice thereof".
11. In the first line of Section 9 (g) of the Agreement, delete the words
"sell any", and insert the words "without Secured Party's prior written
consent which will not be unreasonably withheld, sell" and in the
second line of Section 9 (g), delete the words "(whether in one single
transaction or in multiple transactions)" and insert instead the words
", in one single transaction, ".
12. In the first line of Section 9 (h) of the Agreement, before the word
"consolidate", insert the words "without Secured Party's prior written
consent which will not be unreasonably withheld, " and in the third
line of Section 9 (h), after the words "or entity", delete the word
"or" and insert the words "; or (i) without Secured Party's prior
written consent which will not be unreasonably withheld,".
13. At the end of new Section 9 (i) of the Agreement, prior to the period,
insert the following words "( a "Buyer"). With respect to the consent
provisions under Sections 9 (g), 9 (h) and 9 (i) of this Agreement,
Secured Party shall, in its reasonable discretion, review and determine
whether (x) Secured Party is satisfied as to the creditworthiness of
the successor entity or Buyer and as to such successor's, Buyer's
and/or the new majority shareholder's conformance to the other standard
criteria then used by Secured Party for such purposes and/or whether
such event will result in Debtor, the successor entity, Buyer or any
guarantor of any or all of the Liabilities suffering an adverse
material change in its financial condition as compared to Debtor's or
any guarantor's such condition as at the date hereof, and as a result
of such change in condition Secured Party deems itself or any of the
Equipment to be insecure; (y) if requested by Secured Party, such
successor entity or Buyer is willing to execute and deliver to Secured
Party an agreement satisfactory in form and substance to Secured Party,
in its reasonable discretion, containing the successor entity's and/or
Buyer's effective assumption of all obligations of the Debtor under the
Agreement and all Loan Schedules thereunder; and/or (z) if requested by
Secured Party, Debtor, the new majority shareholder, Buyer and/or such
successor entity are willing to execute such additional documentation
or modifications to the Agreement (including without limitation, the
Financial Covenant Rider) as are reasonably required by Secured Party
to maintain Secured Party's interests in the Equipment or as otherwise
required by Secured Party to accomplish Section 9 (x) above".
14. In the first line of Section 11 (a) of the Agreement, after the words
"of the Liabilities", insert the words "within ten (10) days of".
15. In the third line of Section 11 (c) of the Agreement, after the words "
guaranty agreement", insert the words "and such failure shall continue
for twenty (20) days after written notice thereof from Secured Party
(except for any Financial Covenant(s) contained in the Rider of even
date herewith)".
16. In the third line of Section 11 (e) of the Agreement, after the words
"financial institution", insert the words "in connection with a
transaction in excess of $500,000.00" and in the fourth line of Section
11 (e) after the word "unmatured", insert the words "and such default
remains uncured following the expiration of the cure period (if any)".
17. Delete Section 11 (h) of the Agreement in its entirety.
18. In the third line of the paragraph immediately following former Section
11 (h) of the Agreement, after the word "Uniform Commercial Code",
insert the words "unless all of the Liabilities and Other Liabilities
under each of the Loan Schedules hereunder have been satisfied in
full,".
19. In the third line of Section 12 of the Agreement, after the words "and
expenses", insert the word "reasonably".
20. In the twelfth line of Section 13 of the Agreement, after the words
"assurances as Secured Party", insert the word "reasonably".
21. In the second line of Section 16 of the Agreement, after the words "of
Obligations", insert the words "or in the Prepayment Agreement of even
date herewith" and in the seventh line of Section 16, delete the words
"four percent (4%)" and insert instead the words "five percent (5%)".
22. In the last sentence of Section 17 of the Agreement, delete the words
"New York" and insert instead "North Carolina".
23. In the last sentence of Section 18 of the Agreement, before the word
"notice", insert the word "written".
TRIANGLE PHARMACEUTICALS, INC. ▇▇▇▇▇ FARGO EQUIPMENT FINANCE, INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. By: /S/ ▇▇▇▇▇ ▇▇▇▇
------------------------------- ------------------
Its: Executive VP and Chief Financial Officer Its: Assistant Vice President
------------------------------------------------------------------------------------
FINANCIAL COVENANT RIDER TO
MASTER LOAN AND SECURITY AGREEMENT NO. 83834
--------------------------------------------------------------------------------
Triangle Pharmaceuticals, Inc. ("Debtor") and ▇▇▇▇▇ Fargo Equipment
Finance, Inc. ("Secured Party") covenant and agree with respect to
Master Loan
and Security Agreement No. 83834 (the "Agreement") and all Loan Schedules
thereto (each a "Loan Schedule", collectively, the "Loan Schedules"), as
follows:
1. It shall be an Event of Default under the Agreement if at any time the
Debtor shall fail to be in compliance with the following (the
"Financial Covenant"):
(i) Debtor's Domestic Unrestricted Cash shall be no less than
$30,000,000.00 at all times during the term of any Loan Schedule
to the Agreement.
As used herein:
Domestic Unrestricted Cash means the minimum cash, cash equivalents and
investment balances on Debtor's balance sheet belonging solely to the
Debtor in the form of cash or readily marketable securities held or
maintained at institutions in the United States which has not been
pledged, encumbered, restricted or otherwise assigned to or by any
third party.
All other accounting terms not defined herein shall have the meanings
ascribed to them according to generally accepted accounting principles,
consistently applied.
2. Debtor has delivered to Secured Party a copy of financial projections
which it has prepared in good faith based upon existing facts and
circumstances at the time such projects were prepared and upon bona
fide commercially reasonable business assumptions related to Debtor
(the "Projections"). Secured Party understands that these are
projections and may be revised based on actual subsequent events. Upon
thirty (30) days prior written notice, the Secured Party may request
updated projections of profit and loss, statements of cash flow and
balance sheets which shall then be submitted to the Secured Party for
each year that this Agreement remains in effect.
3. In order to enable Secured Party to review Debtor's compliance with the
foregoing terms, conditions and covenants, Debtor shall, within fifteen
(15) days of the end of each calendar month, provide Secured Party with
an affidavit from the chief financial officer for Debtor in the form
annexed hereto as Exhibit 2 stating that the Debtor has complied and is
then in compliance with each of the covenants contained in this Rider,
or in the event of any non-compliance, stating the extent of any such
non-compliance.
4. It shall be an Event of Default under the Agreement if Debtor fails to
be in compliance with any of the provisions set forth hereinabove,
including without limitation, the Financial Covenant. In such event,
Debtor shall deliver to Secured Party, within ten (10) days of the
occurrence of such failure, either (i) prepayment of the Liabilities
and the Other Liabilities in accordance with paragraph 16 of the
Agreement, or (ii) delivery to Secured Party, an irrevocable standby
letter of credit issued by a recognized financial institution
reasonably acceptable to Secured Party in an amount equal to the sum of
the present value of the then remaining payments due under all then
existing Loan Schedules during the remaining terms thereof, discounted
at a rate equal to five percent (5%), which letter of credit shall be
substantially in the form annexed hereto as Exhibit 1 (the "LC"). Such
LC shall secure the payment of all of the Liabilities and the Other
Liabilities under the Agreement (as such terms are defined therein) and
all Loan Schedules thereto and the performance of all other obligations
of Debtor to Secured Party and its assigns under the Agreement. Once an
LC is issued under this Section 4, it shall be an Event of Default
under the Agreement if at any time during which any amounts remain due
under the Agreement or any Loan Schedule, the LC is not in full force
and effect or if Secured Party receives notice that the LC will not be
replaced or renewed.
4. Debtor acknowledges that it has agreed to deliver the LC in strict compliance
with the terms hereof in order to induce Secured Party to enter into the
Agreement and Loan Schedules thereunder, and that Secured Party would not enter
into the Agreement or Loan Schedules except in reliance upon Debtor's agreement
to strictly comply with the terms hereof. Time is of the essence with regard to
Debtor's compliance with the terms hereof. Debtor agrees that Secured Party
shall be entitled to the remedy of specific performance to compel Debtor to
deliver the LC in accordance herewith as Debtor's financial condition is such
that if there is a failure to comply with the Financial Covenant and failure to
deliver the LC as agreed, Secured Party's other remedies will be insufficient.
5. All other terms and conditions of the Agreement and the Loan Schedules shall
remain in full force and effect. In the event that there is any conflict between
the terms and conditions of this Rider and the terms and conditions of the
Agreement or the Loan Schedules, the terms and conditions of this Rider shall
govern. All of the terms, conditions and provisions hereunder shall be deemed to
be an indivisible part of and supplement to the Agreement and the Loan
Schedules.
TRIANGLE PHARMACEUTICALS, INC. ▇▇▇▇▇ FARGO EQUIPMENT FINANCE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------- ------------------
Title: Executive Vp and Chief Financial Officer Title: Assistant Vice President
----------------------------------------------- -------------------------------
EXHIBIT 1
[Letterhead of Issuing Bank]
[LETTERHEAD OF BANK]
IRREVOCABLE LETTER OF CREDIT
Date: ________
Letter of Credit No.: _____
Beneficiary: ▇▇▇▇▇ Fargo Equipment Finance, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Ladies and Gentlemen:
At the request and for the account of ______________________ (the
"Account Party") we hereby establish our irrevocable Letter of Credit in your
favor in the amount of __________________________ United States Dollars (U.S.
$_____________) available with us by sight payment of your draft(s) drawn on us
at sight accompanied by your signed and dated statement containing the wording
below of (1) or (2) or (3) alone or (1) and (2) combined:
(1) "This demand covers amounts payable to ▇▇▇▇▇ Fargo Equipment
Finance, Inc. ("WFEF") from ________________________ (the
"Obligor") under or in connection with one or more agreements
between ________________ and the Obligor as such agreements
may be amended from time to time."
AND/OR
(2) "This demand covers amounts paid to ▇▇▇▇▇ Fargo Equipment
Finance, Inc. ("WFEF") by ___________________________ (the
"Obligor") under or in connection with one or more agreements
between WFEF and the Obligor as such agreements may be amended
from time to time. The amounts covered by this demand were
paid to WFEF within 90 calendar days before the Obligor made a
general assignment for the benefit of creditors or a petition
was filed by or against the Obligor under the United States
Bankruptcy Code or under similar state or federal law relating
to bankruptcy, reorganization or other relief for debtors."
OR
(3) "▇▇▇▇▇ Fargo Equipment Finance, Inc. ("WFEF") has received
notice that Letter of Credit No. ____ issued by
___________________ will not be extended beyond its current
expiration date. This demand covers amounts which in the
future will or may be payable to WFEF by
________________________________ (the "Obligor") under or in
connection with an agreement dated __________, 200_ between
WFEF and the Obligor (the "Agreement"), as well as amounts
which have been paid to WFEF by the Obligor under or in
connection with the Agreement within the 90 calendar days
preceding the date of this demand."
Each draft presented hereunder must be marked "DRAWN UNDER LETTER OF CREDIT NO.
_______ ISSUED BY (BANK)"
Partial and multiple drawings are permitted under this Letter of
Credit.
This Letter of Credit expires at our above-specified office on
_______________, but shall be automatically extended thereafter,
without written amendment, to _____________ in each succeeding calendar
year unless you have received at your address above written notice from
us sent by registered mail or
express courier that we elect not to renew this Letter of Credit beyond
the date specified in such notice (the "Final Expiration Date"), which
Final Expiration Date will be _______________ or any subsequent
______________ and shall be at least 60 calendar days after the date
you receive such notice.
The Final Expiration Date shall be automatically extended to that Banking
Day (a day on which we are open at our above-specified office to
conduct our letter of credit business) which is 10 Banking Days after
the Final Expiration Date if (1) the Final Expiration Date falls on a
day which is not a Banking Day for any reason referred to in Article 17
of the UCP (as defined below) or (2) the Final Expiration Date falls on
a day which is not a Banking Day or any reason other than those
referred to in such Article 17 and the next day which would normally be
a Banking Day is not a Banking Day for any reason referred to in
Article 17.
Except as otherwise herein provided, this Letter of Credit is subject to the
Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500, (the "UCP") and
engages us in accordance with the terms thereof.
All bank charges in connection with this Letter of Credit are for the account of
the Account Party.
Very truly yours,
________________________ (BANK)
By: ____________________
Title:__________________
EXHIBIT 2
COMPLIANCE CERTIFICATE
I, _____________________ , hereby certify that I am the duly elected,
qualified and presently serving Chief Financial Officer of Triangle
Pharmaceuticals, Inc., a corporation duly organized and existing under and by
virtue of the laws of the State of Delaware (the "Company") and in connection
with
MASTER LOAN AND SECURITY AGREEMENT No. 83834 dated NOVEMBER 26, 2001
(the "Agreement"), by and between the Company, as Debtor and ▇▇▇▇▇ Fargo
Equipment Finance, Inc., as Secured Party, I do hereby further certify as
follows:
1. That this Certificate accurately represents the financial condition of
the Company determined in accordance with Generally Accepted Accounting
Principles for the month ending _____________ (the "Fiscal Period").
All undefined terms used herein shall have the meanings ascribed to
them in the Agreement and in the Riders thereto.
2. That the Domestic Unrestricted Cash appearing below is the genuine
Domestic Unrestricted Cash of the Company for the Fiscal Period:
DOMESTIC REQUIRED DOMESTIC
-------- -----------------
UNRESTRICTED CASH UNRESTRICTED CASH
----------------- -----------------
$__________________ $30,000,000.00
3. That the Company is in compliance ___________/non-compliance
_____________ with the Financial Covenants and all other terms and
conditions of the Agreement.
IN WITNESS WHEREOF, the undersigned Chief Financial Officer has
executed this Certificate this day of ___________ __________________ , 20___.
TRIANGLE PHARMACEUTICALS, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Its: Chief Financial Officer