Exhibit 10.9
MASTER LOAN AND SECURITY AGREEMENT
NO. 7700 DATED: DECEMBER 17,1999
LENDER: CUSTOMER:
OXFORD VENTURE FINANCE, LLC ALTUS BIOLOGICS, INC.
A Virginia Limited Liability Corporation a Massachusetts corporation
Address Address:
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In consideration of each Loan Agreement, Customer hereby agrees with Lender
that, whenever Customer shall be at any time or times directly or contingently
indebted, liable or obligated to Lender in any manner whatsoever, Lender shall
have the following rights:
1. DEFINITIONS. To the extent not otherwise specifically defined in this
Agreement, unless the context otherwise requires, all other terms contained in
this Agreement shall have the meanings assigned or referred to them in the UCC.
The following terms shall have the following meanings:
"Acceptance Date" with respect to each item of Equipment shall have the
meaning Assigned to such term in Section 3 of this Agreement.
"Affiliate" shall mean, with respect to any person, firm or entity, any
other person, firm or entity controlling, controlled by, or under common control
with such person, firm or entity; for the purposes hereof "control" shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of any such person, firm or entity,
whether through the legal or beneficial ownership of voting securities, by
contract or otherwise.
"Agreement" shall mean this Master Loan and Security Agreement, as amended
or modified from time to time.
"Attorneys' Fees and Expenses" shall mean all reasonable attorneys' fees
and legal costs and expenses (including, without limitation, those fees, costs
and expenses incurred in connection with bankruptcy proceedings, including
Relief from Stay Motions, Cash Collateral Motions and disputes concerning any
proposed disclosure statement and/or bankruptcy plan).
"Collateral" shall mean all Equipment and any licenses, trademarks or other
tangible or intangible property ancillary to the Equipment and all products,
proceeds, gents and profits therefrom or thereof including proceeds in the form
of goods, accounts, chattel paper, documents, instruments and insurance
proceeds.
"Default" shall have the meaning ascribed to such term is Section 8 of this
Agreement
"Equipment" shall mean one or more items or units of personal property now
owned or hereafter acquired by Customer, as described in each Equipment
Schedule, wherever the same
may be located, including all present and future additions, attachments,
accessions and accessories thereto and all replacements, substitutions and a
right to use license for any software related to any of the foregoing and
proceeds thereof, including all proceeds of insurance thereon.
"Equipment Schedule" shall mean each Equipment Schedule, which incorporates
by reference the terms and conditions of this Agreement and describes one or
more items of Equipment and specific terms and conditions with respect thereto.
"Event of Default" shall have the meaning ascribed to such term in Section
8 of this Agreement.
"Loan Agreement" shall mean the applicable Equipment Schedule incorporating
the terms and conditions of this Agreement, including all exhibits, addenda,
schedules, certificates, riders and all other documents and instruments executed
and delivered in connection with the applicable Equipment Schedule or this
Master Loan and Security Agreement.
"Note" shall mean a promissory note of Customer in favor of Lender
evidencing Customer's obligations to Lender with respect to a Loan Agreement.
"Obligations" shall mean all liabilities, absolute or contingent, joint,
several or independent, of Customer or any Affiliate of Customer now or
hereafter existing, due or to become due to, or held or to be held by, Lender
for its own account or as agent for another or others, whether created directly
or acquired by assignment or otherwise and howsoever evidenced, including,
without limitation, the Loan Agreement, and all interest, taxes, fees, charges,
expenses and Attorneys' Fees and Expenses chargeable to Customer or incurred by
Lender under the Loan Agreement, or any other document or instrument delivered
in connection herewith.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, trust, or other enterprise or any government or
political subdivision, or any agency, department or instrumentality thereof.
"Security Deposit" with respect to each item of Equipment shall have the
meaning assigned to such term in the Equipment Schedule applicable to such item
of-Equipment.
"UCC" shall mean the Uniform Commercial Code as enacted in the State of
Connecticut.
2. INDEPENDENT LOAN; CROSS-COLLATERALIZATION; SECURITY INTEREST. Each
Equipment Schedule shall constitute a separate, distinct and independent Loan
Agreement and contractual obligation of Customer. As security for the due and
punctual payment of any and all of the present and future Obligations of
Customer to Lender, Customer hereby grants to Lender with respect to each Loan
Agreement and for the full amount of all Obligations, a security interest in all
of the Collateral and all collateral securing any other lease or security
agreement between Customer and Lender, whether now in existence or hereafter
entered into. The extent to which Lender's security interest in any item of
Collateral shall be entitled to purchase money priority shall be determined by
reference to the unpaid principal balance of any Note evidencing the financing
of the purchase price of such item of Equipment.
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3. ACCEPTANCE OF EQUIPMENT. The Equipment is to be delivered and installed
at the location specified or referred to in the applicable Equipment Schedule.
The Equipment shall be deemed to have been accepted by Customer for all purposes
under this Agreement upon Customer's execution of an Equipment Schedule (the
"Acceptance Date"). Customer shall not be liable or responsible for any failure
or delay in the delivery of the Equipment to Customer for whatever reason.
4. TERM; PRINCIPAL AND INTEREST; NO PREPAYMENT; LATE CHARGES. The term for
any Loan Agreement shall be as specified in the applicable Equipment Schedule.
No Loan Agreement is prepayable by Customer, in whole or in part, without the
express written consent of Lender in its sole discretion. Principal and interest
payments shall be in the amounts and shall be due and payable as set forth in
the applicable Equipment' Schedule. If any payment of Principal or interest or
other amount payable hereunder shall not be paid within 5 days of the crate when
due, Customer shall pay as an administrative and late charge an amount equal to
5% of the amount of any such overdue payment. In addition, Customer shall pay
overdue interest on any delinquent payment or other amounts due under any Loan
Agreement (by reason of acceleration or otherwise) from the due date until paid
at the rate of one and one-half percent (1.5%) per month or the maximum amount
permitted by applicable law, whichever is lower. All payments to be made to
Lender shall be made to Lender in immediately available funds at the address
shown above, or at such other place, as Lender shall specify in writing.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS. Customer hereby represents
and warrants to and covenants with Lender (provided that if Customer is an
individual or sole proprietorship, the representations, warranties and covenants
relating to corporate status shall not apply) that, as of the date hereof and
for so long as any Obligations shall remain outstanding:
(a) Customer is duly organized and is existing in good standing under the
laws of its jurisdiction of organization and is duly qualified and in good
standing is those jurisdictions where the conduct of its business or the
ownership of its properties requires qualification;
(b) Customer has the power and authority to own the Collateral, to enter
into and perform this Agreement and any other document or instrument delivered
in connection herewith and to incur the Obligations;
(c) Customer's chief executive office is located at the address set forth
above;
(d) Customer does not utilize, and has not in the last five years utilized,
any trade names in the conduct of its business except as set forth on Schedule 1
hereto;
(e) Customer has not changed its name, been the surviving entity in a
merger, acquired any business or changed the location of its chief executive
office within the previous five years, except as set forth on Schedule 2 hereto;
(f) Neither the execution, delivery or performance by Customer of the Loan
Agreement nor compliance by it with the teams and provisions hereof, nor the
consummation of the transactions contemplated herein, (i) will contravene, any
applicable provision of any law, statute, rule or regulation, or any order,
writ, injunction or decree of any court or governmental
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instrumentality, (ii) will conflict or be inconsistent with or result in any
breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in any lien upon any property, pursuant to
the terms of any indenture, mortgage, deed of trust, loan agreement or any other
material agreement or instrument to which Customer is a party or by which it or
any of its property or assets are bound or to which it may be subject or (iii)
will violate any provision of its Certificate of Incorporation or By-Laws, or
other governance documents;
(g) The Loan Agreement, the Note and any document or instrument delivered
in connection herewith and the transactions contemplated hereby or thereby are
duly authorized, executed and delivered, and the Loan Agreement, the Note and
such other documents and instruments constitute valid and legally binding
obligations of Customer and are enforceable against Customer in accordance with
their respective terms;
(h) No order, consent, approval, license, authorization, or validation of,
or filing, recording or registration with, or exemption by any governmental or
public body or authority, or any subdivision thereof is required to authorize or
required in connection with (i) the grant by, Customer of the security interest
in connection, with the Loan Agreement, (ii) the execution, delivery and
performance of the Loan. Agreement, (iii) the legality, validity, binding effect
or enforceability of the Loan Agreement or (iv) the perfection or maintenance of
the aforementioned lien and security interest;
(i) Customer has filed all federal, state and local tax returns and other
reports it is required to file, has paid or made adequate provision for payment
of all such taxes, assessments and other governmental charges, and shall pay or
deposit promptly when due all sales, use, excise, personal property, income,
withholding, corporate, franchise and other takes, assessments and governmental
charges upon or relating to the manufacture, purchase, ownership, maintenance,
modification, delivery, installation, possession, condition, use, acceptance,
rejection, operation or return of the Equipment and, upon request by Lender,
Customer will submit to Lender proof satisfactory to Lender that such payments
and/or deposits have been made;
(j) There are no pending or threatened actions or proceedings before any
court or administrative agency, as unfavorable resolution of which could have a
material adverse effect on Customer's financial condition or operations;
(k) No representation, warranty or statement by Customer contained in the
Loan Agreement or in any certificate or other document furnished or to be
furnished by Customer pursuant to the Loan Agreement contains or at the time of
delivery shall contain any untrue statement of material fact, or omits, or shall
omit at the time of delivery, to state a material, fact necessary to make it not
misleading,
(l) All financial statements delivered and to be delivered by Customer to
Lender in connection with. the execution and delivery of the Loan Agreement are
true and correct in all material respects and have been prepared m accordance
with generally accepted accounting principles, and at all times since the elate
of the most recent financial statements, there has been no material change in
Customer's financial affairs or business operations. Customer shall
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furnish Lender: (1) within 90 days after the last day of each fiscal year of
Customer, a financial statement including a balance sheet, income statement,
statement of retained earnings and statement of cash flows, each prepared in
accordance with generally accepted accounting principles consistently applied
with a report signed by an independent certified public accountant satisfactory
to Lender; (ii) upon the request of Lender, within 45 days after the close of
each quarter of each fiscal year of Customer, financial statements similar to
those described in the immediately preceding clause, prepared by Customer and
certified by the chief financial officer of Customer, Cut) promptly upon the
request pf Lender, such tax returns or financial statements regarding any
guarantor of the Obligations or any Affiliate of Customer as Lender may
reasonably request from time to time; (iv) promptly upon request of Lender, in
form satisfactory to Lender, such other and additional information as Lender may
reasonably request from time to time, and; (v) promptly inform Lender of any
Defaults (defined below) or any events or changes in the financial condition of
Customer occurring since the date of the last financial statements of Customer
delivered to Lender which, individually or cumulatively, when viewed in light of
prior financial statements, may result in a material adverse change in the
financial condition of Customer;
(m) Customer shall permit Lender, through its authorized attorneys,
accountants and representatives, to inspect and examine the Equipment and the
books, accounts, records, ledgers and assets of every kind and description of
Customer with respect thereto at all reasonable tunes; provided, however, that
the failure of Lender to inspect the Equipment or to inform Customer of any
noncompliance shall not relieve Customer of any of its Obligations hereunder;
(n) Customer is the owner of the Equipment free and clear of all rights,
title, security interests, encumbrances or liens of any other party, will defend
the Equipment against all claims and demands of all persons at any time claiming
any interest therein and shall deliver to Lender any and all evidence of
ownership of, and certificates of title to, any and all of the Equipment;
(o) The Equipment is personal property and not a fixture under the law of
the jurisdiction in which the Equipment is located even though the Equipment may
hereafter become attached or affixed to real property,
(p) Each site where Equipment is located, if not owned by Customer, is
leased by Customer pursuant to a valid lease or rental agreement which permits
the possession, use and operation of the Equipment at such location;
(q) Customer shall provide Lender with disclaimers and waivers from
landlord, mortgagees and other persons holding any interest or claim in and to
any premises where Equipment is located, acceptable in, all respects to Lender,
which may be necessary or advisable in the sole discretion of Lender to confirm
that the first priority security interest and rights of Lender in the Equipment
are and will remain valid and superior against all other parties;
(r) The Equipment is in the possession of Customer at the location(s)
specified in the applicable Equipment Schedule, and shall not be removed from
such location without the prior written consent of Lender, which consent shall
in any event be conditioned upon Customer having completed all notifications,
filings, recordings, and other actions in such new location as Lender may
require to protect and perfect Lender's interests in the Collateral;
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(s) Customer shall not, without the prior written consent of Lender, sell,
offer to sell, lease, rent, hire or in any other manner dispose, transfer or
surrender use and possession of any Equipment;
(t) customer will not, directly or indirectly, create, incur or permit to
exist any lien, encumbrance, mortgage, pledge, attachment or security interest
on or with respect to the Equipment other than in connection with the execution
and delivery of the Loan Agreement and a subordinate lien in favor of
TransAmerica Business Credit Corporation;
(u) Customer shall permit each item of Equipment to be used only within the
continental United States by qualified personnel solely for business purposes
and the purpose for which it was designed and, at its sole expense, shall
service, repair, overhaul and maintain each item of Equipment in the same
condition as when received, ordinary wear and tear excepted, in good operating
order, consistent with prudent industry practice (but, in no event less than the
same extent to which Customer maintains other similar equipment in the prudent
management of its assets and properties) and in compliance with all applicable
laws, ordinances, regulations, and conditions of all insurance policies required
to be maintained by Customer under the Loan Agreement and all manuals, orders,
recommendations, instructions and other written requirements as to the repair
and maintenance of such item of Equipment issued at any time by the vendor
and/or manufacturer thereof;
(v) if any item of Equipment does not comply with the requirements of the
Loan Agreement, Customer shall bring such Equipment into compliance with the
provisions hereof, and Customer shall not use any Equipment, nor allow the same
to be used, for any unlawful purpose;
(w) Customer acknowledges that Lender has not selected, manufactured or
supplied the Equipment to Customer and has acquired day Equipment subject hereto
solely in connection with this Loan Agreement and Customer has received and
approved the terms, of any purchase order or agreement with respect to the
Equipment, and
(x) Customer has all material permits, licenses and other authorizations
which are required with respect to its business under Environmental Laws (as
defined below) and is in material compliance with all terms and conditions of
such permits, licenses and other authorizations, including all limitations,
restrictions, standards, prohibitions, requirements, obligations, schedules and
timetables. The Customer is not presently in violation of any Environmental
Laws. "Environmental Laws" shall mean any Federal, state or local law relating
to releases or threatened releases of Hazardous Substances; the manufacture,
handling, transport, use, treatment, storage or disposal of Hazardous Substances
or materials containing Hazardous Substances; or otherwise relating to pollution
of the environment or the protection of human health. "Hazardous Substances"
shall mean substances or materials which contain substances defined in or
regulated as toxic or hazardous materials, chemicals, substances, waste or
pollutants under any present or future Federal statutes and their state
counterparts, as well as any implementing regulations as amended from time to
time and as interpreted by administering agencies.
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6. DISCLAIMER OF WARRANTIES; LIMITATION OF REMEDY; LIMITATION OF LIABILITY.
Customer selected both the Equipment and the supplier (identified in the
Equipment Schedule, herein ("Supplier") from whom Customer agrees to purchase
the Equipment. CUSTOMER ACKNOWLEDGES THAT LENDER HAS NO SPECIAL FAMILIARITY OR
EXPERTISE WITH RESPECT TO THE EQUIPMENT. CUSTOMER AGREES THAT THE EQUIPMENT IS
"AS IS" AND IS OF A SIZE, DESIGN AND CAPACITY SELECTED BY CUSTOMER AND THAT
CUSTOMER IS SATISFIED THAT THE SAME IS SUITABLE FOR CUSTOMER'S PURPOSES, AND
THAT EXCEPT AS MAY OTHERWISE BE SPECIFICALLY PROVIDED HEREIN OR IN THE EQUIPMENT
SCHEDULE, LENDER HAS MADE NO REPRESENTATION OR WARRANTY AS TO ANY MATTER
WHATSOEVER. LENDER DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY WAVES AS TO LENDER,
ALL WARRANTIES WITH RESPECT TO THE EQUIPMENT INCLUDING BUT NOT LIMITED TO ALL
EXPRESS OR IMPLIED WARRANTS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, QUALITY, CAPACITY, OR WORKMANSHIP, ALL EXPRESS OR IMPLIED WARRANTIES
AGAINST PATENT INFRINGEMENTS OR DEFECTS, WHETHER. HIDDEN OR APPARENT, AND ALL
EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO COMPLIANCE OF THE EQUIPMENT WITH
THE REQUIREMENTS OF ANY LAW, REGULATION, SPECIFICATION OR CONTRACT RELATIVE
THERETO. IN NO EVENT SMALL LENDER BE LIABLE (INCLUDING WITHOUT LIMITATION, UNDER
ANY THEORY IN TORTS) FOR ANY LOSS OF USE, REVENUE, ANTICIPATED PROFITS OR
SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE LOAN OR THE USE, PERFORMANCE OR MAINTENANCE OF THE
EQUIPMENT. If the Equipment is not properly installed, does not operate as
represented or warranted by the Supplier, manufacturer and/or service company or
is unsatisfactory for any reason, Customer shall make any claim on account
thereof solely against the Supplier, manufacturer and/or service company and
shall, nevertheless, pay Lender all amounts payable under the Loan Agreement and
any such claims shall not act as a defense, counterclaim, deduction, setoff or
otherwise limit Customer's Obligations under the Loan Agreement.
7. RISK OF LOSS AND DAMAGE; INSURANCE. Customer assumes all risk of loss,
damage or destruction to the Equipment from whatever cause and for whatever
reason. If all or a portion of an item of Equipment shall become lost, stolen,
destroyed, damaged beyond repair or rendered permanently unfit for use for any
reason, or in the event of any condemnation, confiscation, theft or seizure or
requisition of title to or use of such item of Equipment, Customer shall
immediately pay to Lender an amount equal to the outstanding principal balance
of and accrued and unpaid interest on any Note with respect to such Equipment,
less the net amount of the recovery, if any, received by Lender from insurance
on the Equipment. For so long as any Obligations shall remain outstanding,
Customer shall procure and maintain insurance in such amounts and with such
coverages, and upon such terms and with such companies, as Lender may approve,
at Customer's expense; provided, however, that in no event shall such insurance
be less than the following coverages and amounts: (a) Worker's Compensation and
Employer's Liability Insurance, in the full statutory amounts provided by law;
(b) Comprehensive General Liability Insurance including product/completed
operations and contractual liability coverage, with minimum limits on a per
occurrence basis, as reasonably required by Lender, and Combined Single Limit
Bodily Injury and Property Damage on an aggregate basis, as reasonably required
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by Lender or, in either case, as otherwise specified in any Equipment Schedule
hereto; and (c) All Risk Physical Damage Insurance, including earthquake and
flood, on each item of Equipment, is an amount not less than the greater of (i)
the outstanding principal balance owing under any Note with respect to such
Equipment; or (ii) its full replacement value. Customer shall cause Lender to be
included as an additional insured on each such Comprehensive General Liability
Insurance policy. On each such All Risk Physical Damage Insurance policy Lender
shall be named as loss payee. Such policies shall be endorsed to provide that
the coverage afforded to Lender shall not be rescinded, impaired or invalidated
by any act or neglect of Customer. Customer agrees to waive Customer's rights
and its insurance carrier's rights of subrogation against Leader for any and all
loss or damage. In addition to the foregoing minimum insurance coverage,
Customer shall procure and maintain such other insurance coverage as Lender may
reasonably require. All policies shall be endorsed or contain a clause requiring
the insurer to furnish Lender with at least 30 days prior written notice of any
material change, cancellation or non renewal of coverage. Upon execution of this
Agreement, and thereafter, 30 days prior to the expiration of each insurance
policy inquired hereunder, Customer shall furnish Lender with a certificate of
insurance or other evidence satisfactory to Lender that the insurance coverages
required under such policy are and will continue in effect, provided, however,
that Lender shall be under no duty either to ascertain the existence of or to
examine such insurance coverage or to advise Customer in the event such
insurance coverage should not comply with the requirements hereof if Customer
shall at any time or times hereafter fail to obtain and/or maintain any of the
policies of insurance required herein, or fail to pay any premiums in whole or
in part relating to any such policies, Lender may, but shall not be obligated
to, obtain and/or cause to be maintained insurance coverage with inspect to the
Collateral, including, at Lender's option, the coverage provided by all or any
of the policies of Customer and pay all or any part of the premium therefor,
without waiving any Event of Default by Customer, and any sums so disbursed by
Lender shall be additional Obligations of Customer to Lender payable on demand.
If there exists an Event of Default, Lender shall have the right to settle and
compromise any and all claims under any of the All Disk Physical Damage policies
required to be maintained by Customer hereunder and Customer hereby appoints
Lender as its attorney-in-fact, with power to demand, receive and receipt for
all monies payable thereunder, to execute in the name of Customer or Lender or
both any proof of loss, notice, draft or other instruments in connection with
such policies or any loss thereunder and generally to do and perform any and all
acts as Customer, but for this appointment, might or could perform.
8. EVENTS OF DEFAULT. An "Event of Default" under this Agreement shall be
deemed to have occurred upon the occurrence or existence of any one or more of
the following events or conditions (each a "Default') and after the giving of
any required notice or the passage of any required period of time (or both)
specified below with respect to such Default: (a) Customer shall fail to make
any payment due under any Note or as required under the Loan Agreement within S
days of its due date; or (b) Customer shall fail to obtain or maintain any of
the insurance required under the Loan Agreement; or (c) Customer shall remove,
sell, transfer, encumber, or part with possession of any Equipment; (d) Customer
shall fail to perform or observe any other covenant, condition or agreement
under the Loan Agreement, and such failure shall continue for 20 days after
notice thereof to Customer, or (e) Customer shall default in the payment or
performance of any Obligation owing to Lender, and such default shall continue
for 20 days after notice thereof to Customer, or (f) any representation or
warranty made by Customer herein or in any certificate, agreement, statement or
document heretofore or hereafter furnished
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Lender, including without limitation any financial information disclosed to
Lender, shall prove to be false or incorrect in any material respect; or (g)
death or judicial, declaration of incompetence of Customer, if an individual; or
(h) the commencement of any bankruptcy, insolvency, arrangement, reorganization,
receivership, liquidation or other similar proceeding by or against Customer or
any of its properties or businesses, or the appointment of a trustee, receiver,
liquidator or custodian for Customer or any of its properties or businesses, or
if Customer suffers the entry of an order for relief under Title 1.1 of the
United States Code; or (i) the making by Customer of a general assignment or
deed of trust for the benefit of creditors; or (j) Customer shall default in any
payment or other material obligation to any other lender and such lender has
accelerated the debt in accordance with its terms; or (k) Customer shall merge
with or consolidate into any other entity or sell all or substantially all of
its assets or, in any manner terminate its existence; or (l) if Customer is a
privately held corporation, more thane 50% of Customer's voting capital stock,
or effective control of Customer's voting capital stock, issued and outstanding
from time to time, is not retained by the holders of such stack on the date the
Loan Agreement is executed; or (m) if Customer is a publicly held corporation,
there shall be a change in the ownership of Customer's stock such that Customer
is no longer subject to the reporting requirements of the Securities Exchange
Act of 1934 or no longer has a class of equity securities registered under
Section 12 of the Securities Act of 1933; or (n) Lender shall determine that
there has been a material adverse change in the financial condition or business
operations of Customer since the date of the execution of the Loan Agreement, or
that Customer's ability to perform its obligations is materially impaired; or
(o) if Customer leases the premises where any Equipment is located a breach by
Customer of any such lease and the commencement of an action by the landlord to
evict Customer or to repossess the premises; or (p) any event or condition set
forth in subsections (e) through (o) of this Section 8 shall occur with respect
to any guarantor or other person liable or responsible, in whole or in part, for
payment or performance of any Obligations. Customer shall promptly notify Lender
of the occurrence of any Event of Default or the occurrence or existence of any
event or condition, which, upon the giving of notice or lapse of time, or both,
would constitute an Event of Default.
9. RIGHTS AND REMEDIES; ACCELERATION.
(a) Upon the occurrence of an Event of Default, Lender shall have all of
the rights and remedies enumerated herein (all of which are cumulative and not
exclusive of any other right or remedy available to Lender) and Lender may, at
its sole option and discretion, exercise one or more of the following remedies
with respect to any or all of the Collateral: (i) by written notice to Customer,
terminate any or all Loan Agreements as such notice shall specify, and, with
respect to such terminated Loan Agreements, declare immediately due and payable
and recover from Customer, as liquidated damages for loss of Lender's bargain
and not as a penalty, an amount equal to the aggregate of all unpaid periodic
installment payments and other sums due under Loan Agreements to the date of
default plus the charges set forth in Section 4 hereof, if any, plus an amount
equal to the outstanding principal balances of and accrued and unpaid interest
on any of the Notes with respect to the Loan Agreements, (ii) Lender may
declare, at its option, all or any part of the Obligations immediately due and
payable, without demand, notice of intention to accelerate, notice of
acceleration, notice of nonpayment, presentment, protest, notice of dishonor, or
any other notice whatsoever, all of which are hereby waived by Customer and any
endorser, guarantor, surety or other party liable it any capacity for any of the
Obligations; (iii) cause Customer to promptly ship, with insurance and freight
prepaid by
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Customer, any or all Equipment to such location as Lender may designate, or
Lender, at its option, may enter upon the premises where the Equipment is
located and take immediate possession of and remove the same by summary
proceedings or otherwise, all without liability to Lender for or by reason of
damage to property or such entry or taking possession except for Lender's gross
negligence or willful misconduct; (iv) sell any or all Collateral at public or
private sale or otherwise dispose of, hold, use, operate, lease to others or
keep idle the Equipment, all as Lender in its sole discretion may determine and
all free and clear of any rights of Customer; (v) remedy such default, including
making repairs or modifications to the Equipment, for the account and expense of
Customer, a Customer agrees to reimburse Lender for all of Leader's reasonable
costs and expenses; (vi) apply any Security Deposit or other cash collateral or
sale or remarketing proceeds of the Equipment at any time to reduce any amounts
due to Lender, or (vii) exercise any other right or remedy which may be
available to Lender under applicable law, or proceed by appropriate court action
to enforce the terms hereof or to recover damages for the breach hereof
including Attorneys' Fees and Expenses. Any notice required to be given by
Lender of a sale or other disposition or other intended action which is made in
accordance with the terms of the Loan Agreement at least seven (7) days prior to
such proposed action, shall constitute fair and reasonable notice to Customer of
any such action. Lender shall be liable to Customer only for its gross
negligence or willful misconduct in failing to comply with any applicable law
imposing duties upon Lender; Lender's liability for any such failure shall be
limited to the actual loss suffered by Customer directly resulting from such
failure; and in no event shall sender have any liability to Customer for
incidental, consequential, punitive or exemplary damages. No remedy referred to
in this Section 9 shall be exclusive, but each shall be cumulative and in
addition to any other remedy referred to above or otherwise available to Lender
at law or in equity.
(b) The exercise or pursuit by Lender of any one or more of such remedies
shall not preclude the simultaneous or later exercise or pursuit by Lender of
any or all such other remedies, and all remedies hereunder shall survive
termination of the Loan Agreement. In the event Louder takes possession and
disposes of the Collateral, the proceeds of any such disposition shall be
applied in the following order: (1) to all of Lender's costs, charges and
expenses incurred in taking, removing, holding, repairing and selling or leasing
the Equipment; (2) to pay the Lender the remaining amount of any Obligations
owed to Lender and (3) the balance, if any, to Customer. A termination shall
occur only upon written notice by Lender and only with respect to such
Equipment, as Lender shall specify in such notice termination under this Section
9 shall not affect Customer's duty to perform Customer's Obligations under the
Loan Agreement in full. Customer agrees to reimburse Lender on demand for any
and all costs and expenses incurred by Lender in enforcing its rights and
remedies hereunder following the occurrence of an Event of Default, including,
without limitation, Attorneys' Fees and Expenses, and the costs of repossession,
storage, insuring, reletting, selling and disposing of any and all Equipment.
10. INDEMNITY.
(a) Customer agrees to indemnify, reimburse and hold Lender and its
successors, Affiliates, assigns, officers, directors, employees, agents and
servants (hereinafter in this Section 10 referred to individually as
"Indemnitee", and collectively as "Indemmitees") harmless from any and all
liabilities, obligations, damages, injuries, penalties, claims, demands,
actions, suits,
10
judgments and any and all costs, expenses or disbursements, including Attorneys'
Fees and Expenses of whatsoever kind and nature imposed on, asserted against or
incurred by any of the Indemnitees in any way relating to or arising out of the
Loan Agreement or any other document executed in connection herewith or
therewith or in any other way connected with the administration of the
transactions contemplated hereby or thereby or the enforcement of any of the
terms of, or the preservation of any rights under any thereof, or in any way
relating to or arising out of the manufacture, ownership, ordering, purchase,
delivery, control, acceptance, lease, financing, possession, operation,
condition, sale, return or other disposition, or use of the Equipment
(including, without limitation, latent or other defects, whether or not
discoverable), the violation of the laws of any country, state or other
governmental, body or unit, any tort (including, without limitation, claims
arising or imposed under the doctrine of strict liability, or for or on account
of injury to or the death of any Person (including any Indemnitee), or property
damage), or contract claim, or any claim based on patent, trademark or copyright
infringement or any obligation or liability to the manufacturer or supplier of
the Equipment under any Supply Contracts (referenced in the Equipment Schedule),
including purchase orders issued by Customer or Lender or assigned to Lender,
provided, however, that no Indemnitee shall be indemnified pursuant to this
Section 10 for losses, damages or liabilities to the extent caused solely by the
gross negligence or willful misconduct of such Indemnitee. Customer agrees that
upon written notice by any Indemnitee of the assertion of such a liability,
obligation, damage, injury, penalty, claim, demand, action, suit or judgment,
Customer shall assume full responsibility for the defense thereof. Each
Indemnitee agrees to use its best efforts to promptly notify Customer of any
such assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 10(a) hereof, Customer
agrees to pay, or reimburse Lender for any and all reasonable fees, costs and
expenses (including Attorneys' fees and Expenses) of whatever kind or nature
incurred in connection with the creation, preservation or protection of Lender's
liens on, and security interest in, the Collateral, including, without
limitation, all fees and taxes in connection with the recording or filing of
instruments and documents in public offices, payment or discharge of any taxes
or liens upon or in respect of the Collateral, premiums for insurance with
respect to the Collateral and all other fees, costs and expenses in connection
with protecting, maintaining or preserving the Collateral and Leader's interest
therein, whether through judicial proceedings or otherwise, or in defending or
prosecuting any actions, suits or proceedings arising out of or relating to the
Collateral.
(c) Customer shall, at its sole cost and expense, protect, defend,
indemnify, release and hold harmless the Indemnitees from and against any and
all Losses imposed upon or incurred by or asserted against any Indemnitees, and
arising out of or in any ways relating to any one or more of the following,
unless caused solely by the gross negligence or willful misconduct of any
Indemnitee: (i) any presence of any Hazardous Substances in, on, above or under
Customer's leased or owned real property (the "Property"); (ii) any past,
present or threatened Release of Hazardous Substances in, on, above, under or
from the Property; or (iii) any past or present violation of any Environmental
Laws. The term "Release" of any Hazardous Substance includes, but is not limited
to, any release, deposit, discharge, emission, leaking, spilling, seeping,
migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing
or other movement of Hazardous Substances. The term "Losses" includes any and
all claims, suits, liabilities (including, without limitation, strict
liabilities), actions, proceedings, obligations, debts, damages, losses, costs,
expenses, diminutions in value, fines, penalties, charges, fees,
11
expenses, judgments, awards, amounts paid in settlement, costs of remediating a
Hazardous Substance (whether or not performed voluntarily), engineers' fees,
environmental consultants' fees, and costs of investigation (including, but not
limited to sampling, testing and analysis of soil, water, air, building
materials and other materials and substances whether solid, liquid or gas) or
punitive damages, of whatever kind or nature (including, but not limited to
Attorneys' Fees and Expenses).
(d) Without limiting the application of Section 10(a) or (b), or (c)
hereof, Customer agrees to pay, indemnify and hold each Indemnitee harmless from
and against any loss, costs, damages and expenses (including Attorneys' Fees and
Expenses) which such Indemnitee may suffer, expend or incur in consequence of or
growing out of any misrepresentation or omission of a material fact by Customer
in the Loan Agreement or in any writing contemplated by or made or delivered
pursuant to or in connection with the Loan Agreement.
(e) If and to the extent that the obligations of Customer under thus
Section 10 are unenforceable for any reason, Customer hereby agrees to make the
maximum contribution to the payment and satisfaction of such obligations which
is permissible under applicable law.
11. MAINTENANCE; INSPECTION. During the term of the Loan Agreement,
Customer shall, unless Lender shall otherwise consent in writing: (a) maintain
conspicuously on any Equipment such labels, plates, decals or other markings as
Lender may reasonably require, stating that Lender has a security interest in
such Equipment; (b) furnish to Lender such information concerning the condition,
location, use and operation of the Equipment as Lender may request; (c) permit
any person designated by Lender to visit and inspect any Equipment and any
records maintained in connection therewith, provided, however, that the failure
of Lender to inspect the Equipment or to inform Customer of any noncompliance
shall not relieve Customer of any of its obligations hereunder; and (d) make no
additions, alterations, modifications or improvements (collectively,
"Improvements") to any item of Equipment that are not readily removable without
causing material damage to such item of Equipment, or which will cause the
value, utility or useful life of such item of Equipment to materially decline.
If any such Improvement is made and cannot be removed without causing material
damage or decline in value, utility or useful life (a "Non Severable
Improvement"), then Customer warrants that such Non-Severable Improvement shall
immediately become subject to Lender's security interest upon being installed
and shall be free and clear of all liens and encumbrances and shall become
Equipment subject to all of the terms and conditions of the Loan Agreement.
12. FURTHER ASSURANCES. Customer shall promptly execute and deliver to
Lender such further documents and take such further action as Lender may require
in order to more effectively carry out the intent and purpose of the Loan
Agreement. Customer shall execute and deliver to Lender upon Lender's request
any and all schedules, forms and other reports and information as Lender may
deem necessary or appropriate to respond to requirements or regulations imposed
by any governmental authorities or to comply with the provisions of the law of
any jurisdiction in which Customer may then be conducting business or in which
any of the Equipment may be located. Customer shall execute and deliver to
Lender upon Lender's request such further and additional documents, instruments
and assurances as Lender deems necessary to acknowledge and confirm, for the
benefit of Lender or any assignee or transferee of any of Lender's rights, title
and interests hereunder in accordance with Section 13 hereof (an "Assignee'),
all of the terms and conditions of all or any part of the Loan Agreement and
12
Lender's or Assignee's rights with respect thereto, and Customer's compliance
with all of the terms and provisions thereof.
13. ASSIGNMENT. The provisions of the Loan Agreement shall be binding upon
and shall inure to the benefit of the heirs, administrators, successors and
assigns of Lender and Customer, provided, however, Customer may not assign any
of its rights, transfer any interest in the Equipment or delegate any of its
obligations under the Loan Agreement without the prior written consent of Lender
in its sole discretion. Lender may, from time to time, absolutely or as
security, without notice to Customer, sell, assign, transfer, participate,
pledge or otherwise dispose of all or any part of a Loan Agreement, the
Obligations and/or the Collateral therefor, subject to the rights of Customer
under the Loan Agreement for the use and possession of the Equipment. In such
event, each and every immediate and successive Assignee shall have the right to
enforce the Loan Agreement with respect to those Obligations and/or Collateral
transferred to the Assignee, by legal action or otherwise, for its own benefit
as fully as if such Assignee were herein by name specifically given such rights.
Customer agrees that the rights of any such Assignee hereunder or with respect
to the related Obligations, shall not be subject to any defense, set off or
counterclaim that Customer may assert or claim against Lender, and that any such
Assignee shall have all of Lender's rights hereunder but none of Lender's
obligations. Lender shall have an unimpaired right to enforce the Loan Agreement
for its benefit with respect to that portion of any Loan Agreement, Obligations
and/or Collateral that Lender has not sold, assigned, pledged or otherwise
transferred.
14. GOVERNING LAW; MEDIATION OF THE LOAN AGREEMENT. THE LOAN AGREEMENT AND
THE LEGAL RELATIONS OF THE PARTIES HERETO SHALL IN ALL RESPECTS BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CONNECTICUT, WITHOUT
REGARD TO PRINCIPLES REGARDING THE CHOICE OF LAW. CUSTOMER HEREBY CONSENTS AND
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
CONNECTICUT AND THE FEDERAL DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT FOR
THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF ITS
OBLIGATIONS UNDER THE LOAN AGREEMENT, AND EXPRESSLY WAIVES ANY OBJECTIONS THAT
IT MAY HAVE TO THE VENUE OF SUCH COURTS. CUSTOMER HEREBY EXPRESSLY "WAIVES ANY
RIGHT TO TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THE LOAN
AGREEMENT. Any action by Customer against Lender for any cause of action under
the Loan Agreement shall be brought within one year after any such cause of
action first arises. If requested by Leader, Customer agrees that prior to the
commencement of any litigation regarding the terms and conditions of the Loan
Agreement, the parties hereto shall subject themselves to non-binding mediation
with a qualified mediator mutually satisfactory to both parties:
15. NOTICES. Any demand or notice required or permitted to be given
hereunder shall be deemed effective (a) when deposited in the United States
mail, and sent by certified mail; return receipt requested, postage prepaid,
addressed to Lender or to Customer at the addresses set forth herein, or to such
other address as may be hereafter provided by the party to be notified by
written notice complying with the provisions hereof or (b) when transmitted to
Lender or Customer by facsimile at the respective numbers provided for such
purpose; provided,
13
that such facsimile notice is promptly followed by notice given in accordance
with the immediately preceding subsection (a).
16. SECURITY DEPOSIT. Lender may, at its option, apply the Security
Deposit, if any is indicated in an Equipment Schedule, to cure any Event of
Default of Customer, whereupon Customer shall promptly restore such Security
Deposit to its original amount. Lender shall return to Customer any unapplied
Security Deposit, without interest, upon full payment and performance of
Customer's Obligations under the Loan Agreement.
17. MISCELLANEOUS; GENERAL PROVISIONS. The Loan Agreement will not be
binding on Lender until accepted and executed by Lender at its executive office
in South Norwalk, Connecticut. All options, powers and rights granted to Lender
hereunder or under any promissory note, guaranty, letter of credit agreement,
depository agreement, instrument, document or other writing delivered to Lender
shall be cumulative and shall be in addition to guy other options, powers or
rights which Lender may now or hereafter have under any applicable law or
otherwise. Time is of the essence in the payment and performance of all of
Customer's obligations under the Loan Agreement. The captions in the Loan
Agreement are for convenience only and shall not define or limit any of the
terms thereof.
Any provisions of the Loan Agreement which are unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such unenforceability without invalidating the remaining provisions hereof; and
any such unenforceability in any jurisdiction shall not render unenforceable
such provisions in any other jurisdiction. To the extent permitted by applicable
law, Customer hereby waives any provisions of law, which render any provision of
the Loan Agreement unenforceable in any respect.
CUSTOMER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS LOAN AGREEMENT IS
A PART IS A COMMERCIAL TRANSACTION AND EXCEPT AS OTHERWISE PROVIDED IN THE LOAN
AGREEMENT CUSTOMER HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
NOTICE AND JUDICIAL HEARING IN CONNECTION WITH LENDER'S TAKING POSSESSION OR
LENDER'S DISPOSITION OF ANY OF THE COLLATERAL, INCLUDING, WITHOUT LIMITATION,
ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND
ANY SUCH RIGHT WHICH CUSTOMER WOULD OTHERWISE UNDER THE CONSTITUTION OR ANY
STATUTE OF THE UNITED STATES OR OF ANY STATE, INCLUDING, WITHOUT LIMITATION, ITS
RIGHTS TO NOTICE AND HEARING UNDER CHAPTER 903A OF THE CONNECTICUT GENERAL
STATUTES.
THE LOAN AGREEMENT AND ANY OTHER WRITTEN AGREEMENT(S) BETWEEN THE PARTIES
EXECUTED SIMULTANEOUSLY HEREWTTH, REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES CONCERNING THE SUBJECT MATTER HEREOF, AND SUPERSEDE AND MAY NOT BE
CONTRADICTED BY ANY PRIOR WRITTEN AGREEMENTS BETWEEN THE PARTIES, INCLUDING,
WITHOUT LIMITATION, PROPOSALS, LETTERS, COMMITMENT LETTERS OR BY ANY PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. CUSTOMER
ACKNOWLES AND CERTIFIES THAT NO SUCH ORAL AGREEMENTS EXIST. THE LOAN AGREEMENT
MAY NOT BE AMENDED, NOR MAY
14
ANY RIGHTS UNDER THE LOAN AGREEMENT BE WAIVED, EXCEPT BY AN INSTRUMENT IN
WRITING SIGNED BY THE PARTY AGAINST WHOM SUCH AGREEMENT OR WAIVER IS ASSERTED.
The failure of Lender at any time or times hereafter to require strict
performance by Customer of any of the provisions, warranties, terms and
conditions contained in the Loan Agreement or in any other agreement, guaranty,
note, depository agreement, letter of credit, instrument or document now or at
any time or times hereafter executed by Customer or an Affiliate of Customer and
delivered to Lender shall not waive, affect or diminish any right of Lender at
any time or times hereafter to demand strict performance thereof. The Loan
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute but one and
the same instrument. Each reference herein to "Lender" shall be deemed to
include its successors and assigns, and each reference to "Customer" and any
pronouns referring thereto as used herein shall be construed in the masculine,
feminine, neuter, singular or plural, as the context may require, and shall be
deemed to include the legal representatives, successors and assigns of Customer,
all of whom shall be bound by the provisions hereof. EACH REFERENCE HEREIN TO
"CUSTOMER" SHALL MEAN AND INCLUDE ANY AND ALL CUSTOMERS WHO SIGN BELOW, EACH OF
WHOM SHALL BE JOINTLY AND SEVERALLY LIABLE UNDER THIS LOAN AGREEMENT.
The Loan Agreement and all related documents, including (a) amendments,
addenda, consents, waivers and modifications which may be executed
contemporaneously or subsequently herewith, (b) documents received by Lender
from the Customer, and (c) financial statements, certificates and other
information previously or subsequently furnished to Leader, may be reproduced by
Lender by any photographic, photostatic, microfilm, micro-card, miniature
photographic, compact disk reproduction or other similar process and Lender may
destroy any original document so reproduced. Customer agrees, herein waives all
right to object to the admissibility of such reproduction and stipulates that
any such reproduction shall, to the extent permitted by law, be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original itself is in existence and whether or not the
reproduction was made by Lender in the regular course of business) and that any
enlargement, facsimile or further reproduction of the reproduction shall
likewise be admissible in evidence.
18. SURVIVAL. Sections 6, 7, 9, 14, 11, 13, 15, 16 and 17 shall survive and
continue in full farce and effect without regard to the payment in full of all
Obligations under the Loan Agreement.
Executed and delivered by duly authorized representatives of the parties hereto
as of the date set forth below.
LENDER: CUSTOMER:
OXFORD VENTURE FINANCE, LLC ALTUS BIOLOGICS, INC.
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------- ------------------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
15
Title: President Title: President & CEO
Date: December 17, 1999 Date: December 17, 1999
16
SCHEDULE 1
Trade Names
17
SCHEDULE 2
Name Changes; Changes in Chief Executive Office
Address Change of Chief Executive Office from: 40 Allston to ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇.
18
ASSISTANT CLERK'S CERTIFICATE
ALTUS BIOLOGICS, INC.
To: Oxford Venture Finance, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ the duly elected [Illegible]* of Altus
Biologics, Inc (the "Corporation") in order to induce Oxford Venture Finance,
LLC ("Oxford") to enter into one or more loans, leases or otherwise extend
financial accommodations to or for the benefit of the Corporation, hereby
certifies to Oxford that:
(i) The Corporation is duly organized, validly existing and in good standing
under the laws of the State of Massachusetts;
(ii) The Corporation has full corporate power and authority to enter into one or
more transactions, at any time and in any amount or form, with Oxford: (a) to
sell to and/or lease or purchase from Oxford any personal property or fixtures;
(b) to borrow and otherwise effect loans and advances or extensions of credit;
(c) to guaranty or otherwise provide financial accommodations or additional
security for the payment and performance of any obligations or indebtedness
owing to Oxford by the Corporation or any other party; and (d) to sell, assign,
transfer, mortgage, pledge, hypothecate, grant security interests in, endorse
and deliver to Oxford, any and all real or personal property of the Corporation;
tangible or intangible, of every name and description, as security for the
payment and performance of any obligations or indebtedness owing to Oxford by
the Corporation or any other party, or otherwise in connection with any of the
foregoing (the "Authorized Transactions");
(iii) Each of the officers designated below (an "Authorized Officer"), is a duly
elected (or appointed), qualified and acting officer of the Corporation, and the
signature appearing opposite his or her name below is his or her genuine
signature:
NAME OFFICE SIGNATURE
---- ------ ---------
1. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ President & CEO /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
2.
3.
(iv) Each Authorized Officer has full power and authority to act alone on behalf
of the Corporation with respect to the Authorized Transactions and to do and
perform all acts and things, and to execute and deliver all instruments and
documents of every kind and nature he or she may deem necessary, proper or
incidental to, or which is otherwise required by Oxford in connection with,
completion of the Authorized Transactions, including, but not limited to one or
more leases, loan agreements, promissory notes,
19
security agreements, schedules, riders, certificates, guaranties, pledge
agreements, subordination agreements, purchase orders or agreements,
disbursement authorizations, invoices, bills of sale, intercreditor agreements,
consents, disclaimers of interests, and UCC financing statements and any future
modification(s) or amendments thereof ("Authorized Documentation"), with such
execution and delivery to be conclusive evidence that such Authorized
Transactions have been duly and specifically authorized and approved by the
Board of Directors of the Corporation as being for the benefit of the
Corporation in consideration of reasonably equivalent value to the Corporation,
and that such Authorized Documentation is intended by the Board of Directors to
constitute the valid and legally binding obligations of the Corporation,
enforceable by Oxford in accordance with its terms;
(v) The Corporation shall furnish written notice to Oxford of any revocation,
modification or amendment of any corporate action affecting any of the foregoing
certifications, and Oxford shall be entitled to rely on these certifications
until such notice is received by Oxford.
* Assistant Clerk
20
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the
Corporation, this 17th day of December, 1999.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Assistant Clerk
ATTEST.
The undersigned (Officer other than Secretary) does hereby certify that he/she
is President of the above Corporation and does hereby certify that ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ was, at the time he/she executed the foregoing Certificate, a duly
elected, qualified and acting [Illegible]* of the Corporation, and he/she was
duly authorized and empowered to do so, and the signature thereon is genuine.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
* Assistant Clerk
21
▇▇▇▇ OF SALE
FOR TEN DOLLARS ($10.00) AND OTHER VALUABLE CONSIDERATION, the receipt and
sufficiency of which is hereby acknowledged, VERTEX PHARMACEUTICALS INC. (the
"Seller") does hereby sell, transfer and deliver to ALTUS BIOLOGICS, INC. (the
"Buyer"), its successors and assigns, all of Seller's right, title and interest
in and to the following equipment (the "Equipment'):
SEE SCHEDULE A ATTACHED HERETO AND MADE A PART HEREOF
TO HAVE AND TO HOLD, the same unto Buyer, its successors and assigns, forever.
The Seller warrants and represents that it owns (and has good and marketable
title to) the Equipment free and clear of all liens and encumbrances, and has
full power, right and authority to convey title thereto to the Buyer.
IN WITNESS WHEREOF, the Seller has caused this ▇▇▇▇, of Sale to be executed
by a duly authorized officer this ___________ day of ___________, 2000.
VERTEX'PHARMACEUTICALS, INC.
Affix Corporate Seal (Seller)
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
WITNESSED BY
-------------------------------------
Signature of Witness
-------------------------------------
Print name of Witness
CORPORATE ACKNOWLEDGEMENT
STATE OF )
---------------------------
COUNTY OF ) ss
--------------------------
On this ____ day of __________, 2000, before me personally came
_____________________________ to me known, who, being by me duly sworn, did
depose and say that he resides at ____________________________________________;
that he is the _____________________________ of VERTEX PHARMACEUTICALS, INC the
Corporation described in
22
and which executed the foregoing ▇▇▇▇ of Sale and that he signed his name
thereto with authorization of the board of directors.
Affix Corporate Seal
----------------------------------------
Notary Public
23
AMENDMENT AGREEMENT
THIS AMENDMENT AGREEMENT (the "Agreement") is made this 9th day of April
2002 by and between ALTUS BIOLOGICS, INC. (referred to as "Customer") and OXFORD
FINANCE CORPORATION ("Lender") with respect to the following facts:
RECITALS
A. Customer and Oxford Venture Finance, LLC, Lender's predecessor in
interest, have entered into that certain MASTER LOAN AND SECURITY AGREEMENT NO.
7700 dated DECEMBER 17, 1999 (together with all related schedules and other
agreements entered into in connection therewith, the ("MLSA").
B. Customer and Lender wish to enter into this Agreement for the purpose of
addressing certain issues arising as a result of the change in name and legal
status form Oxford Venture Finance, LLC to Oxford Finance Corporation, and other
matters as set forth herein.
NOW, THEEFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Customer and Lender agree that the
MLSA is hereby amended as follows:
1. Lender Defined. The term "lender" as used in the MLSA shall mean Oxford
Finance Corporation.
2. Cross Collateralization. Section 2(i) is hereby amended to read in its
entirety as follows:
(i) grants to Lender with respect to each Loan Agreement and for the
full amount of all Obligations, a security interest in all of the
Collateral and all collateral securing any other lease or security
agreement between Customer and Lender, whether now in existence or
hereafter entered into; provided, however, that the foregoing cross
collateralization provision shall not apply to any agreements between
Customer and Lender that have been assigned by Lender to a third
party, prior to April 9, 2002; and
3. Except as expressly amended as set forth above, all of the terms of the
MLSA remain in full force and affect and unmodified.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their respective duly authorized representatives the date first set forth
above.
CUSTOMER: ALTUS BIOLOGICS, INC. LENDER: OXFORD FINANCE CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ [Illegible]
--------------------------------- ------------------------------------
Title: President & CEO Title: Vice President
24
AMENDMENT AGREEMENT
THIS AMENDMENT AGREEMENT (the "Agreement") is made this 27th day of October
2003 by and between ALTUS BIOLOGICS, INC. (referred to as "Customer") and OXFORD
FINANCE CORPORATION ("Lender") with respect to the following facts:
RECITALS
A. Customer and Oxford Finance Corporation have entered into that certain
MASTER LOAN AND SECURITY AGREEMENT NO. 7700 dated DECEMBER 17, 1999 (together
with all agreements entered into in connection therewith, the ("MLSA").
B. Customer and Lender wish to amend the MLSA to address certain issues
relating thereto as set forth herein.
NOW, THEEFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Customer and Lender agree that the
MLSA is hereby amended as follows effective only after April 12, 2002 (the
"Effective Date") and only with respect to Equipment Schedules executed after
the Effective Date:
1. Governing Law. The MLSA and all agreements entered into after April 12,
2002 shall be construed in accordance with the laws of the Commonwealth of
Virginia.
2. Except as expressly amended as set forth above, and as expressly amended
in previously executed amendment agreement between Customer and Lender, all of
the terms of the MLSA remain in full force and effect and unmodified.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their respective duly authorized representatives the date first set forth
above.
CUSTOMER: ALTUS BIOLOGICS, INC. LENDER: OXFORD FINANCE CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By:
--------------------------------- ------------------------------------
Title: President & CEO Title:
---------------------------------
25
AMENDMENT AGREEMENT
THIS AMENDMENT AGREEMENT (the "Agreement") is made this 28th day of May
2004 by and between ALTUS BIOLOGICS, INC. (referred to as "Customer") and OXFORD
FINANCE CORPORATION ("Lender") with respect to the following facts:
RECITALS
A. Customer and Lender have entered into that certain MASTER LOAN AND
SECURITY AGREEMENT NO. 7700 dated DECEMBER 17, 1999 (together with all
agreements entered into in connection therewith, the ("MLSA").
B. Customer and Lender wish to amend the MLSA to address certain issues
relating thereto as set forth herein.
NOW, THEEFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Customer and Lender agree that the
MLSA is hereby amended as follows with immediate effect:
1. Name of Customer. The name of the customer is hereby amended to read in
its entirety as follows: ALTUS PHARMACEUTICALS INC.
2. Except as expressly amended as set forth above, all of the terms of the
MLSA remain in full force and effect and unmodified.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their respective duly authorized representatives the date first set forth
above.
CUSTOMER: ALTUS BIOLOGICS, INC. LENDER: OXFORD FINANCE CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------- ------------------------------------
Title: VP Finance Title: Chief Financial Officer
26
OXFORD VENTURE FINANCE
April 4, 2002
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Altus Biologics, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Charlie:
Oxford Finance Corporation is pleased to provide the following loan
proposal to Altus Biologics, Inc. for laboratory and other internal use assets,
subject to terms and conditions embodied in formal loan agreements, which shall
include but not limited to the following terms and conditions:
Borrower: Altus Biologics, Inc.
Lender: Oxford Finance Corporation, or its assigns.
Equipment: Laboratory, computers and other equipments for the
internal use of Borrower as summarized in Attachment A
("Equipment"). Equipment must be acceptable to Lender.
Total Loan Amount: $1,900,000
Funding Dates: April 2002 through March 2003
Terms: Each Schedule shall have a fixed term of 48 months.
Loan Payment Rates: 2.5365% of the Loan Amount per month for 48 months.
Current Interest Rates: 10.465%
Periodicity: Monthly, in advance. First and last payments up front.
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Index Basis: The four-year Treasury ▇▇▇▇ Weekly Average at a rate
of 4.465% as published in Federal Reserve statistical
release H.15 (519) on March 18, 2002.
Payment Commencements: First day of the month following a Schedule funding.
Stock Warrants: Borrower shall issue to Lender warrants for the
purchase of common stock equal to two percent (2.0%)
of the actual Loan Amount using a strike price equal
to the Series B equity round.
Documentation: Master Loan and Security Agreement #7700 dated
December 17, 1999 between Oxford Venture Finance and
Altus Biologics.
Commitment Fee: Borrower will provide a $20,000 Commitment Fee to
Lender upon execution of this proposal letter. The
Commitment Fee will be retained by Lender after loan
facility approval. Should the Lender not issue a
commitment to provide funding, the Commitment Fee,
less any transaction Costs, will be returned.
Option to Invest: Borrower, at its discretion, may allow Lender's
affiliate Cameron Street Ventures the option of
providing an equity capital contribution to the
Borrower of $750,000 in future private equity
investment rounds at the going price per share. The
election to accept an invitation to invest in Borrower
will be at the Cameron Street Ventures' sole
discretion.
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Rate Adjustment: The effective Loan Rate will remain fixed for the
duration of each Term. Prior to Schedule funding,
Lender may adjust the Loan Rate in order to maintain
its originally anticipated rate of return if there is
a change in the yield on the U.S. Treasury Bills, as
quoted in the Federal Reserve statistical release H.15
(519), from the Index basis specified in this proposal
letter.
Costs: Borrower shall be responsible for all costs and
expenses relating to the transaction, including,
without limitation, extraordinary attorneys' and
appraisal fees, lien search, inspection and filing
fees relating to the preparation, execution and
recording of all documents.
Expiration: This loan proposal will expire if a signed copy of
this proposal letter is not received by Oxford on or
before April 10, 2002.
This proposal letter, the collateral described, and any terms and
conditions of the loan or warrants agreements, are subject to final review and
approval by Oxford Finance Corporation and its Executive Credit Committee, and
is not a commitment to provide financing. Any material adverse change in
Borrower's financial condition may render this proposal or established loan line
null and void, at the sole discretion of Lender. Neither party shall have any
obligation or liability to the other with respect to funding against collateral
under this proposal in the above-described transaction until a binding Loan
Agreement satisfactory to all parties has been executed.
Oxford Finance Corporation welcomes the opportunity to be of serve to Altus
Biologics, Inc. we look forward to working with you again.
Sincerely,
OXFORD FINANCE CORPORATION
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
----------------------------------------
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
President
ACKNOWLEDGED AND AGREED:
Altus Biologics, Inc.
29
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: President and CEO
Date: April 15, 2002
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ATTACHMENT A
ESTIMATED CATEGORIES OF EQUIPMENT:
Category Amount Percentage
-------- --------- ----------
Laboratory Equipment 1,130,000 59.5%
Computer Hardware 300,000 15.8%
Furniture and Misc. Soft Costs 470,000 24.7%
--------- ----
Total 1,900,000 100%
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CONSENT AND WAIVER
(OWNER, LANDLORD OR MORTGAGEE OF REAL ESTATE)
Gentlemen/Ladies:
OXFORD VENTURE FINANCE, LLC, together with its successor and assigns, if any,
(Second Party) has entered into or is about to enter into, a security agreement,
chattel mortgage or similar agreement ("Security Agreement") with ALTUS
BIOLOGICS, INC. ("Debtor"), pursuant to which the Debtor has granted, or will
grant, to Secured Party a security interest in certain Personal Property.
Some or all of the Personal Property is, or will be, located at certain premises
known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ("Premises"). This letter
is being sent to you because of your interest in the Premises.
For the purposes of this Waiver, "Personal Property" will include all
laboratory, scientific, and production equipment; computer equipment; lab and
office furniture; office and warehouse equipment; molds and tooling; and other
similar tangible assets and their replacements now or hereafter financed under
the Security Agreement, and will exclude all leasehold and tenant improvements.
Financings under the Security Agreement will occur from time to time, now and in
the future. At any time, at your request Secured Party will provide you with a
list of equipment financed as of the date of the request.
We appreciate your co-operation in this matter of mutual interest.
OXFORD VENURE FINANCE, LLC
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
Title: President
AGREED AND ACCEPTED BY:
Company: Ft. Washington Ass. LLC
(Landlord/Property Manager)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
Date: January 8, 2002
Indicate Interest in Premises:
Owner: X
Mortgagee:
-----
Landlord: X
Realty Manager:
-----
32
CONSENT AND WAIVER
(OWNER, LANDLORD OR MORTGAGEE OF REAL ESTATE)
Gentlemen/Ladies:
OXFORD VENTURE FINANCE, LLC, together with its successor and assigns, if any,
(Second Party) has entered into or is about to enter into, a security agreement,
chattel mortgage or similar agreement ("Security Agreement") with ALTUS
BIOLOGICS, INC. ("Debtor"), pursuant to which the Debtor has granted, or will
grant, to Secured Party a security interest in certain Personal Property.
Some or all of the Personal Property is, or will be, located at certain premises
known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Premises").
For the purposes of this Waiver, "Personal Property" will include all
laboratory, scientific, and production equipment; computer equipment; lab and
office furniture; office and warehouse equipment; molds and tooling; and other
similar tangible assets and their replacements now or hereafter financed under
the Security Agreement, and will exclude all leasehold and tenant improvements.
Financings under the Security Agreement will occur from time to time, now and in
the future. At any time, at your request Secured Party will provide you with a
list of equipment financed as of the date of the request.
We appreciate your co-operation in this matter of mutual interest.
OXFORD FINANCE CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
AGREED AND ACCEPTED BY:
Company: Vertex Pharmaceuticals
(Landlord/Property Manager)
By: /s/ ▇▇▇▇▇▇ ▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇, ▇▇.
Title: VP Facilities & Operations
Date: April 22, 2002
Indicate Interest in Premises:
Owner:
-----
Mortgagee:
-----
Landlord: X
Realty Manager:
-----
33