Exhibit 10.22
LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT (this "Agreement") dated as of June 15,
2000, between SILICON VALLEY BANK, a California-chartered bank, with its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and with a loan production office located at Wellesley Office Park, ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, doing business under the name
"Silicon Valley East" ("Bank") and VIACELL, INC., a Delaware corporation, with
offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Borrower"),
provides the terms on which Bank shall lend to Borrower and Borrower shall repay
Bank. The parties agree as follows:
1. ACCOUNTING AND OTHER TERMS
Accounting terms not defined in this Agreement shall be construed following
GAAP. Calculations and determinations must be made following GAAP. The term
"financial statements" includes the notes and schedules. The terms "including"
and "includes" always mean "including (or includes) without limitation" in this
or any Loan Document. Capitalized terms in this Agreement shall have the
meanings set forth in Section 13. This Agreement shall be construed to impart
upon Bank a duty to act reasonably at all times.
2. LOAN AND TERMS OF PAYMENT
2.1 CREDIT EXTENSIONS. Borrower shall pay Bank the unpaid principal amount
of all Credit Extensions and interest on the unpaid principal amount of the
Credit Extensions as and when due in accordance with this Agreement.
2.1.1 EQUIPMENT ADVANCES.
(a) Subject to the terms and conditions of this Agreement, Bank
agrees to lend to Borrower, from time to time prior to the Commitment
Termination Date, equipment advances (each an "Equipment Advance" and
collectively the "Equipment Advances") in an aggregate amount not to exceed the
Committed Equipment Line. Notwithstanding the foregoing, no Equipment Advances
shall be made until Viacord, Inc. executes a Guaranty in favor of the Bank and
provides authority documents to the Bank in connection therewith, each in form
and substance acceptable to the Bank. When repaid, the Equipment Advances may
not be re-borrowed. The proceeds of the Equipment Advances shall be used solely
to reimburse Borrower for the purchase of Eligible Equipment purchased within
sixty (60) days (determined based upon the applicable invoice date of such
Eligible Equipment) of the Equipment Advance. Notwithstanding the foregoing, an
Equipment Advance made on the Closing Date may be used to reimburse Borrower for
the purchase of Eligible Equipment purchased on or after July 1, 1999. Bank's
obligation to lend hereunder shall terminate on the earlier of (i) the
occurrence and continuance of an Event of Default, or (ii) the Commitment
Termination Date. For purposes of this Section, the minimum amount of each
Equipment Advance is Fifty Thousand Dollars ($50,000.00). The Borrower may
request no more than six (6) Equipment Advances for the refinance of Equipment.
(b) To obtain an Equipment Advance, Borrower shall deliver to Bank a
completed supplement in substantially the form attached as EXHIBIT B ("Loan
Supplement"), together with a UCC Financing Statement covering the Financed
Equipment described on Annex A to the applicable Loan Supplement and such
additional information as Bank may reasonably request at least five (5) Business
Days before the proposed funding date (the "Funding Date"). On each Funding
Date, Bank shall specify in the Loan Supplement for each Equipment Advance, the
Basic Rate, and the Payment Dates. If Borrower satisfies the conditions of each
Equipment Advance, Bank shall disburse such Equipment Advance by internal
transfer to Borrower's deposit account with Bank. Each Equipment Advance may not
exceed 100% of the Original Stated Cost of the Financed Equipment.
(c) Bank's obligation to lend the undisbursed portion of the
Committed Equipment Line shall terminate if there has been a material adverse
change in the general affairs, management, results of operation, condition
(financial or otherwise) or the prospects of Borrower, whether or not arising
from transactions in the ordinary course of business,
or there has been any material adverse deviation by Borrower from the most
recent business plan of Borrower presented to and accepted by Bank prior to the
execution of this Agreement.
2.2 INTEREST RATE; PAYMENTS.
(a) PRINCIPAL AND INTEREST PAYMENTS ON PAYMENT DATES. Borrower shall
repay each Equipment Advance pursuant to the terms set forth in the
corresponding Loan Supplement. For each Equipment Advance, Borrower shall make
equal monthly payments of principal and interest, in advance, calculated by the
Bank based upon: (1) the amount of the Equipment Advance, (2) the Basic Rate,
and (3)an amortization schedule equal to the Repayment Period (individually, the
"Scheduled Payment", and collectively, "Scheduled Payments"), on the first
Business Day of the month following the month in which the Funding Date occurs
(or commencing on the Funding Date if the Funding Date is the first Business Day
of the month) with respect to such Equipment Advance and continuing thereafter
during the Repayment Period on the first Business Day of each successive
calendar month (each a "Payment Date"). All unpaid principal and accrued
interest, is due and payable in full on the last Payment Date with respect to
such Equipment Advance. Payments received after 12:00 noon Eastern time are
considered received at the opening of business on the next Business Day. An
Equipment Advance may only be prepaid in accordance with Sections 2.2(d) and
2.2(f).
(b) INTEREST RATE. Borrower shall pay interest on the unpaid
principal amount of each Equipment Advance until the Equipment Advance has been
paid in full, at the per annum rate of interest equal to the Basic Rate
determined by Bank as of the Funding Date for each Equipment Advance in
accordance with the definition of the Basic Rate. Any amounts outstanding during
the continuance of an Event of Default shall bear interest at a per annum rate
equal to the Basic Rate plus five percent (5%)(the "Default Rate"). If any
change in the law increases Bank's expenses or decreases its return from the
Equipment Advances, Borrower shall pay Bank upon request the amount of such
increase or decrease.
(c) PREPAID INTEREST. In the event that the Funding Date is not the
first Business Day of a month, on the Funding Date for each Equipment Advance,
Borrower shall pay to Bank, on behalf of Bank, an amount ("Prepaid Interest")
equal to the interest which shall accrue at the Basic Rate respect to such
Equipment Advance through the last day of the subject month.
(d) PREPAYMENT UPON AN EVENT OF LOSS. If any Financed Equipment is
subject to an Event of Loss and Borrower is required to or elects to prepay the
Equipment Advance with respect to such Financed Equipment pursuant to Section
6.8, then such Equipment Advance shall be prepaid to the extent and in the
manner provided in such section.
(e) MANDATORY PREPAYMENT UPON AN ACCELERATION. If the Equipment
Advances are accelerated following the occurrence of an Event of Default or
otherwise, Borrower shall immediately pay to Bank an amount equal to the sum of:
(i) all outstanding principal plus accrued interest, plus (ii) all other sums,
if any, that shall have become due and payable, including interest at the
Default Rate with respect to any past due amounts.
(f) PERMITTED PREPAYMENT OF LOANS. With Bank's prior written consent,
which shall not be unreasonably withheld, Borrower shall have the option to
prepay all, but not less than all, of the Equipment Advances advanced by Bank
under this Agreement, PROVIDED Borrower(i) provides written notice to Bank of
its election to prepay the Equipment Advances at least ten (10) days prior to
such prepayment, and (ii) pays, on the date of such prepayment (A) all
outstanding principal plus accrued interest, plus (B) all other sums, if any,
that shall have become due and payable, including interest at the Default Rate
with respect to any past due amounts.
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2.3 FEES. Borrower shall pay to Bank:
(a) FACILITY FEE. A fully earned, non-refundable facility fee of Two
Thousand Five Hundred ($2,500.00) Dollars due on the Closing Date; and
(b) BANK EXPENSES. All Bank Expenses (including reasonable attorneys'
fees and expenses incurred through and after the Closing Date) when due.
3. CONDITIONS OF LOANS
3.1 CONDITIONS PRECEDENT TO INITIAL CREDIT EXTENSION. The obligation
of Bank to make the initial Credit Extension is subject to the condition
precedent that Bank shall have received, in form and substance satisfactory to
Bank, the following:
(a) this Agreement;
(b) a certificate of the Secretary of Borrower with respect to
articles, bylaws, incumbency and resolutions authorizing the execution and
delivery of this Agreement;
(c) negative pledge agreement covering intellectual property;
(d) guaranty by the Guarantor;
(e) an opinion of Borrower's counsel;
(f) financing statements (Forms UCC-1);
(g) insurance certificate;
(h) payment of the fees and Bank Expenses then due specified in
Section 2.3 hereof;
(i) Certificate of Foreign Qualification (if applicable);
(j) Certificate of Good Standing/Legal Existence; and
(k) such other documents, and completion of such other matters, as
Bank may reasonably deem necessary or appropriate.
3.2 CONDITIONS PRECEDENT TO ALL CREDIT EXTENSIONS. Bank's obligations
to make each Credit Extension, including the initial Credit Extension, is
subject to the following:
(a) timely receipt of a completed Loan Supplement and UCC financing
statement covering the Financed Equipment described on Annex A to the Loan
Supplement; and
(b) the representations and warranties in Article 5 must be
materially true on the date of the Loan Supplement and on the effective date of
each Credit Extension and no Event of Default shall have occurred and be
continuing as of such effective date, or result from the Credit Extension. Each
Credit Extension is Borrower's representation and warranty on that date that the
representations and warranties in Article 5 remain true.
(c) the Bank shall have the opportunity to confirm that upon filing
the UCC-l financing statement covering the Equipment described on the Loan
Supplement, that the Bank shall have a first perfected security interest in such
Equipment.
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4. CREATION OF SECURITY INTEREST
4.1 GRANT OF SECURITY INTEREST. Borrower grants Bank a continuing
security interest in all presently existing and later acquired Collateral to
secure all Obligations and performance of each of Borrower's duties under the
Loan Documents. Any security interest shall be a first priority security
interest in the Collateral. If the Agreement is terminated, Bank's lien and
security interest in the Collateral shall continue until Borrower fully
satisfies its Obligations.
5. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
5.1 DUE ORGANIZATION AND AUTHORIZATION. Borrower and each Subsidiary is
duly existing and in good standing in its state of formation and qualified and
licensed to do business in, and in good standing in, any state in which the
conduct of its business or its ownership of property requires that it be
qualified.
The execution, delivery and performance of the Loan Documents have been
duly authorized, and do not conflict with Borrower's organizational documents,
nor constitute an event of default under any material agreement by which
Borrower is bound. Borrower is not in default under any agreement to which or by
which it is bound in which the default could cause a Material Adverse Change.
5.2 COLLATERAL. Borrower has good title to the Collateral, free of Liens.
5.3 LITIGATION. Except as shown in the Schedule, there are no actions or
proceedings pending or, to Borrower's knowledge, threatened by or against
Borrower or any Subsidiary in which an adverse decision could cause a Material
Adverse Change.
5.4 NO MATERIAL ADVERSE CHANGE IN FINANCIAL STATEMENTS. All consolidated
financial statements for Borrower and any Subsidiary delivered to Bank fairly
present in all material respects Borrower's consolidated financial condition and
Borrower's consolidated results of operations. There has not been any material
deterioration in Borrower's consolidated financial condition since the date of
the most recent financial statements submitted to Bank.
5.5 SOLVENCY. Borrower is able to pay its debts (including trade debts) as
they mature.
5.6 REGULATORY COMPLIANCE. Borrower is not an "investment company" or a
company "controlled" by an "investment company" under the Investment Company
Act. Borrower is not engaged as one of its important activities in extending
credit for margin stock (under Regulations T and U of the Federal Reserve
Board of Governors). Borrower has complied with the Federal Fair Labor
Standards Act. Borrower has not violated any laws, ordinances or rules, the
violation of which could reasonably be expected to cause a Material Adverse
Change. None of Borrower's or any Subsidiary's properties or assets has been
used by Borrower or any Subsidiary or, to the best of Borrower's knowledge,
by previous Persons, in disposing, producing, storing, treating, or
transporting any hazardous substance other than legally. Borrower and each
Subsidiary has timely filed all required tax returns and paid, or made
adequate provision to pay, all material taxes. Borrower and each Subsidiary
has obtained all consents, approvals and authorizations of, made all
declarations or filings with, and, given all notices to, all government
authorities that are necessary to continue its business as currently
conducted.
5.7 SUBSIDIARIES. Borrower does not own any stock, partnership interest or
other equity securities, except for its ownership interest of one hundred
percent (100%) of the outstanding capital stock of Viacord, Inc., a Delaware
corporation.
5.8 FULL DISCLOSURE. No representation, warranty or other statement of
Borrower in any certificate or written statement given to Bank contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements contained in the certificates or statements not
misleading.
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6. AFFIRMATIVE COVENANTS
Borrower shall do all of the following:
6.1 GOVERNMENT COMPLIANCE. Borrower shall maintain its and all
Subsidiaries' corporate existence and good standing in its jurisdiction of
incorporation and maintain qualification in each jurisdiction in which the
failure to so qualify could have a material adverse effect on Borrower's
business or operations. Borrower shall comply, and have each Subsidiary comply,
with all laws, ordinances and regulations to which it is subject, noncompliance
with which could have a material adverse effect on Borrower's business or
operations or cause a Material Adverse Change.
6.2 FINANCIAL STATEMENTS, REPORTS, CERTIFICATES.
(a) Borrower shall deliver to Bank: (i) as soon as available, but no
later than thirty (30) days after the last day of each month, a company prepared
consolidated balance sheet and income statement covering Borrower's consolidated
operations during the period, in a form acceptable to Bank and certified by a
Responsible Officer; (ii) as soon as available, but no later than one hundred
twenty (120) days after the end of Borrower's fiscal year, audited, consolidated
financial statements prepared under GAAP, consistently applied, together with an
unqualified opinion on the financial statements from an independent certified
public accounting firm acceptable to Bank; (iii)within five (5) days of filing,
copies of all statements, reports and notices made available to Borrower's
security holders or to any holders of Subordinated Debt and all reports on Form
10-K, l0-Q and 8-K filed with the Securities and Exchange Commission; (iv) a
prompt report of any legal actions pending or threatened against Borrower or any
Subsidiary that could result in damages or costs to Borrower or any Subsidiary
of One Hundred Thousand Dollars ($100,000.00) or more; and (v) budgets, sales
projections, operating plans or other financial information Bank requests.
(b) Within thirty (30) days after the last day of each month,
Borrower shall deliver to Bank with the monthly financial statements a
Compliance Certificate signed by a Responsible Officer in the form of Exhibit C.
6.3 TAXES. Borrower shall make, and cause each Subsidiary to make, timely
payment of all material federal, state, and local taxes or assessments owing by
Borrower and shall deliver to Bank, on demand, appropriate certificates
attesting to such payments.
6.4 INSURANCE. Borrower shall keep its business and the Collateral insured
for risks and in amounts, as Bank requests. Insurance policies shall be in a
form, with companies, and in amounts that are reasonably satisfactory to Bank.
All property policies shall have a lender's loss payable endorsement showing
Bank as an additional loss payee and all liability policies shall show the Bank
as an additional insured and all policies shall provide that the insurer must
give Bank at least twenty (20) days notice before canceling its policy. At
Bank's request, Borrower shall deliver certified copies of policies and evidence
of all premium payments. Proceeds payable under any policy shall, at Bank's
option, be payable to Bank on account of the Obligations. Notwithstanding the
foregoing, so long as no Event of Default has occurred and is continuing,
Borrower shall have the option of applying the proceeds of any casualty policy
up to Fifty Thousand Dollars ($50,000.00) toward the replacement or repair of
destroyed or damaged property; provided that (i) any such replaced or repaired
property (a) shall be of equal or like value as the replaced or repaired
Collateral and (b) shall be deemed Collateral in which Bank has been granted a
first priority security interest and (ii) after the occurrence and during the
continuation of an Event of Default all proceeds payable under such casualty
policy shall, at the option of the Bank, be payable to Bank on account of the
Obligations. To the extent that Bank receives proceeds of an insurance policy
relating to losses unrelated to the Collateral, Bank shall pay over such
proceeds to Borrower.
6.5 PRIMARY ACCOUNTS. Borrower shall maintain its primary depository and
operating accounts with Bank.
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6.6 FINANCIAL COVENANTS.
Borrower shall maintain as of the last day of each month, unless otherwise
noted:
(a) QUICK RATIO. A ratio of Quick Assets to Current Liabilities of at
least 1.5 to 1.0.
(b) CASH BURN. Four (4) months of Cash Burn.
6.7 FURTHER ASSURANCES. Borrower shall execute any further instruments and
take further action as Bank requests to perfect or continue Bank's security
interest in the Collateral or to effect the purposes of this Agreement.
6.8 LOSS; DESTRUCTION; OR DAMAGE. Borrower shall bear the risk of the
Financed Equipment being lost, stolen, destroyed, or damaged. If during the term
of this Agreement any item of Financed Equipment becomes obsolete or is lost,
stolen, destroyed, damaged beyond repair, rendered permanently unfit for use, or
seized by a governmental authority for any reason for a period equal to at least
the remainder of the term of this Agreement (an "Event of Loss"), then in each
case, Borrower:
(a) prior to the occurrence of an Event of Default, at Borrower's
option, shall (i) pay to Bank on account of the Obligations all accrued interest
to the date of the prepayment, plus all outstanding principal; or (ii) repair or
replace any Financed Equipment subject to an Event of Loss provided the repaired
or replaced Financed Equipment is of equal or like value to the Financed
Equipment subject to an Event of Loss and provided further that Bank has a first
priority perfected security interest in such repaired or replaced Financed
Equipment.
(b) during the continuance of an Event of Default, on or before the
next Payment Date following such Event of Loss, for each such item of Financed
Equipment subject to such Event of Loss, Borrower shall, at Bank's option, pay
to Bank an amount equal to the sum of: (i) all outstanding principal plus
accrued interest, plus (ii) all other sums, if any, that shall have become due
and payable, including interest at the Default Rate with respect to any past due
amounts.
7. NEGATIVE COVENANTS
Borrower shall not do any of the following without the Bank's written
consent:
7.1 CHANGES IN BUSINESS OR BUSINESS LOCATIONS, COMPLIANCE. Change its name
or the chief executive office or principal place of business, move or dispose of
any interest in the Collateral, permit any lien or security interest to attach
to the Collateral, or enter into any transaction outside the ordinary course of
Borrower's business.
Become an "investment company" or a company controlled by an "investment
company", under the Investment Company Act of 1940 or undertake as one of its
important activities extending credit to purchase or carry margin stock, or use
the proceeds of any Equipment Advance for that purpose; fail to meet the minimum
funding requirements of ERISA, permit a Reportable Event or Prohibited
Transaction, as defined in ERISA, to occur; fail to comply with the Federal Fair
Labor Standards Act or violate any other law or regulation, if the violation
could have a material adverse effect on Borrower's business or operations or
cause a Material Adverse Change, or permit any of its Subsidiaries to do so.
7.2 ENCUMBRANCES. Permit any Collateral not to be subject to Bank's first
priority security interest in the Collateral granted herein.
8. EVENTS OF DEFAULT
Any one of the following is an Event of Default:
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8.1 PAYMENT DEFAULT. Borrower fails to pay any of the Obligations within
three (3) days after their due date. During the additional period the failure to
cure the default is not an Event of Default (but no Credit Extensions shall be
made during the cure period);
8.2 COVENANT DEFAULT. Borrower does not perform any obligation in Section 6
or violates any covenant in Section 7 or does not perform or observe any other
material term, condition or covenant in this Agreement, any Loan Documents, or
in any agreement between Borrower and Bank and as to any default under a term,
condition or covenant that can be cured, has not cured the default within ten
(10) days after it occurs, or if the default cannot be cured within ten (10)
days or cannot be cured after Borrower's attempts in the ten (10) day period,
and the default may be cured within a reasonable time, then Borrower shall have
additional time, (of not more than thirty (30) days) to attempt to cure the
default. During the additional period the failure to cure the default is not an
Event of Default (but no Credit Extensions shall be made during the cure
period);
8.3 MATERIAL ADVERSE CHANGE. A Material Adverse Change occurs;
8.4 ATTACHMENT. (i) Any material portion of Borrower's assets is attached,
seized, levied on, or comes into possession of a trustee or receiver and the
attachment, seizure or levy is not removed in thirty (30) days; (ii) Borrower is
enjoined, restrained, or prevented by court order from conducting a material
part of its business; (iii) a judgment or other claim becomes a Lien on a
material portion of Borrower's assets; or (iv) a notice of lien, levy, or
assessment is filed against any of Borrower's assets by any government agency
and not paid within ten (10) days after Borrower receives notice. These are not
Events of Default if stayed or if a bond is posted pending contest by Borrower
(but no Credit Extensions shall be made during the cure period);
8.5 INSOLVENCY. (i) Borrower becomes insolvent; (ii) Borrower begins an
Insolvency Proceeding; or (iii) an Insolvency Proceeding is begun against
Borrower and not dismissed or stayed within forty-five (45) days (but no Credit
Extensions shall be made before any Insolvency Proceeding is dismissed);
8.6 OTHER AGREEMENTS. If there is a default in any agreement to which
Borrower is a party with a third party or parties resulting in a right by such
third party or parties, whether or not exercised, to accelerate the maturity of
any Indebtedness in an amount in excess of One Hundred Thousand Dollars
($100,000.00) or that could result in a Material Adverse Change;
8.7 JUDGMENTS. If a judgment or judgments for the payment of money in an
amount, individually or in the aggregate, of at least Two Hundred Thousand
Dollars ($200,000.00) shall be rendered against Borrower and shall remain
unsatisfied and unstayed for a period of thirty (30) days (provided that no
Credit Extensions will be made prior to the satisfaction or stay of such
judgment);
8.8 MISREPRESENTATIONS. If Borrower or any Person acting for Borrower makes
any material misrepresentation or material misstatement now or later in any
warranty or representation in this Agreement or in any communication delivered
to Bank or to induce Bank to enter this Agreement or any Loan Document.
8.9 GUARANTY. Any guaranty of any Obligations ceases for any reason to be
in full force or any Guarantor does not perform any obligation under any
guaranty of the Obligations, or any material misrepresentation or material
misstatement exists now or later in any warranty or representation in any
guaranty of the Obligations or in any certificate delivered to Bank in
connection with the guaranty, or any circumstance described in Sections 8.4, 8.5
or 8.7 occurs to any Guarantor.
9. BANK'S RIGHTS AND REMEDIES
9.1 RIGHTS AND REMEDIES. When an Event of Default occurs and continues Bank
may, without notice or demand, do any or all of the following:
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(a) Declare all Obligations immediately due and payable (but if an
Event of Default described in Section 8.5 occurs all Obligations are
immediately due and payable without any action by Bank);
(b) Stop advancing money or extending credit for Borrower's benefit
under this Agreement or under any other agreement between Borrower and
Bank;
(c) Make any payments and do any acts it considers necessary or
reasonable to protect its security interest in the Collateral. Borrower
shall assemble the Collateral if Bank requests and make it available as
Bank designates. Bank may enter premises where the Collateral is located,
take and maintain possession of any part of the Collateral, and pay,
purchase, contest or compromise any Lien which appears to be prior or
superior to its security interest and pay all expenses incurred. Borrower
grants Bank a license to enter and occupy any of its premises, without
charge, to exercise any of Bank's rights or remedies;
(d) Ship, reclaim, recover, store, finish, maintain, repair, prepare
for sale, advertise for sale, and sell the Collateral; and
(e) Dispose of the Collateral according to the Code.
9.2 POWER OF ATTORNEY. Borrower hereby irrevocably appoints Bank as its
lawful attorney-in-fact, to be effective upon the occurrence and during the
continuance of an Event of Default, to: (i) endorse Borrower's name on any
checks or other forms of payment or security; (ii) make, settle, and adjust all
claims under Borrower's insurance policies; and (iii) transfer the Collateral
into the name of Bank or a third party as the Code permits. Borrower hereby
appoints Bank its power of attorney to sign Borrower's name on any documents
necessary to perfect or continue the perfection of any security interest
regardless of whether an Event of Default has occurred until all Obligations
have been satisfied in full and Bank is under no further obligation to make
Credit Extensions hereunder. Bank's foregoing appointment as Borrower's attorney
in fact, and all of Bank's rights and powers, coupled with an interest, are
irrevocable until all Obligations have been fully repaid and performed and
Bank's obligation to provide Credit Extensions terminates.
9.3 BANK EXPENSES. If Borrower fails to obtain insurance as required under
Section 6.4 or to pay any amount or furnish any required proof of payment to
third persons and the Bank, Bank may make all or part of the payment or obtain
such insurance policies required in Section 6.4, and take any action under the
policies Bank deems prudent. Any amounts paid by Bank as provided herein are
Bank Expenses and are immediately due and payable, bearing interest at the then
applicable rate and secured by the Collateral. No payments by Bank are deemed an
agreement to make similar payments in the future or Bank's waiver of any Event
of Default.
9.4 BANK'S LIABILITY FOR COLLATERAL. So long as the Bank complies with
reasonable banking practices regarding the safekeeping of collateral, the Bank
shall not be liable or responsible for: (a) the safekeeping of the Collateral;
(b) any loss or damage to the Collateral; (c) any diminution in the value of the
Collateral; or (d) any act or default of any carrier, warehouseman, bailee, or
other person. Borrower bears all risk of loss, damage or destruction of the
Collateral.
9.5 REMEDIES CUMULATIVE. Bank's rights and remedies under this Agreement,
the Loan Documents, and all other agreements are cumulative. Bank has all rights
and remedies provided under the Code, by law, or in equity. Bank's exercise of
one right or remedy is not an election, and Bank's waiver of any Event of
Default is not a continuing waiver. Bank's delay is not a waiver, election, or
acquiescence. No waiver is effective unless signed by Bank and then is only
effective for the specific instance and purpose for which it was given.
9.6 DEMAND WAIVER. Borrower waives demand, notice of default or dishonor,
notice of payment and nonpayment, notice of any default, nonpayment at maturity,
release, compromise, settlement, extension, or renewal of accounts, documents,
instruments, chattel paper, and guaranties held by Bank on which Borrower is
liable.
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10. NOTICES
All notices or demands by any party to this Agreement or any other related
agreement must be in writing and be personally delivered or sent by an overnight
delivery service, by certified mail, postage prepaid, return receipt requested,
or by telefacsimile at the addresses listed at the beginning of this Agreement.
Either Bank or Borrower may change its notice address by giving the other
written notice.
If to Borrower: ViaCell, Inc.
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Attn: ▇▇▇▇ ▇▇▇▇, CEO
FAX: (508) 83l-352l/(▇▇▇) ▇▇▇-▇▇▇▇
If to Bank: Silicon Valley Bank
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
FAX: (▇▇▇)▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
11. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
Massachusetts law governs the Loan Documents without regard to principles
of conflicts of law. Borrower and Bank each submit to the exclusive jurisdiction
of the State and Federal courts in Massachusetts; provided, however, that if for
any reason Bank cannot avail itself of such courts in the Commonwealth of
Massachusetts, Borrower accepts jurisdiction of the courts and venue in Santa
▇▇▇▇▇ County, California.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY
CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER
CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS
AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
12. GENERAL PROVISIONS
12.1 SUCCESSORS AND ASSIGNS. This Agreement binds and is for the benefit of
the successors and permitted assigns of each party. Borrower may not assign this
Agreement or any rights or Obligations under it without Bank's prior written
consent which may be granted or withheld in Bank's discretion. Bank has the
right, without the consent of or notice to Borrower to sell, transfer,
negotiate, or grant participation in all or any part of, or any interest in,
Bank's obligations, rights and benefits under this Agreement, the Loan Documents
or any related agreement.
12.2 INDEMNIFICATION. Borrower hereby indemnifies, defends and holds the
Bank and its officers, employees and agents harmless against: (a) all
obligations, demands, claims, and liabilities asserted by any other party in
connection with the transactions contemplated by the Loan Documents; and (b)
all losses or Bank Expenses incurred, or paid by Bank from, following, or
consequential to transactions between Bank and Borrower (including reasonable
attorneys' fees and expenses), except for losses caused by Bank's gross
negligence or willful misconduct.
9
12.3 TIME OF ESSENCE. Time is of the essence for the performance of all
Obligations in this Agreement.
12.4 SEVERABILITY OF PROVISION. Each provision of this Agreement is
severable from every other provision in determining the enforceability of any
provision.
12.5 AMENDMENTS IN WRITING, INTEGRATION. All amendments to this Agreement
must be in writing signed by both Bank and Borrower. This Agreement and the Loan
Documents represent the entire agreement about this subject matter, and
supersedes prior or contemporaneous negotiations or agreements. All prior or
contemporaneous agreements, understandings, representations, warranties, and
negotiations between the parties about the subject matter of this Agreement and
the Loan Documents merge into this Agreement and the Loan Documents.
12.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, are an original, and all taken together, are one
Agreement.
12.7 SURVIVAL. All covenants, representations and warranties made in this
Agreement continue in full force while any Obligations remain outstanding. The
obligations of Borrower in Section 12.2 to indemnify Bank shall survive until
all statutes of limitations for actions that may be brought against Bank have
run.
12.8 CONFIDENTIALITY. In handling any confidential information, Bank shall
exercise the same degree of care that it exercises for its own proprietary
information, but disclosure of information may be made: (i) to Bank's
subsidiaries or affiliates in connection with their present or prospective
business relations with Borrower; (ii) to prospective transferees or purchasers
of any interest in the Loans; (iii) as required by law, regulation, subpoena, or
other order, (iv) as required in connection with Bank's examination or audit;
and (v) as Bank considers appropriate in exercising remedies under this
Agreement. Confidential information does not include information that either:
(a) is in the public domain or in Bank's possession when disclosed to Bank, or
becomes part of the public domain after disclosure to Bank; or (b) is disclosed
to Bank by a third party, if Bank does not know that the third party is
prohibited from disclosing the information.
12.9 ATTORNEYS' FEES, COSTS AND EXPENSES. In any action or proceeding
between Borrower and Bank arising out of the Loan Documents, the prevailing
party shall be entitled to recover its reasonable attorneys' fees and other
costs and expenses incurred, in addition to any other relief to which it may be
entitled, whether or not a lawsuit is filed.
13. DEFINITIONS
13.1 DEFINITIONS.
"AFFILIATE" of a Person is a Person that owns or controls directly or
indirectly the Person, any Person that controls or is controlled by or is under
common control with the Person, and each of that Person's senior executive
officers, directors, partners and, for any Person that is a limited liability
company, that Person's managers and members.
"BANK EXPENSES" are all audit fees and expenses and reasonable costs or
expenses (including reasonable attorneys' fees and expenses) for preparing,
negotiating, administering, defending and enforcing the Loan Documents
(including appeals or Insolvency Proceedings).
"BASIC RATE" is, as of the Funding Date, the per annum rate of interest
(based on a year of 360 days) equal to one and one half of one percentage points
(1.50%) above the Prime Rate.
10
"BORROWER'S BOOKS" are all Borrower's books and records including ledgers,
records regarding Borrower's assets or liabilities, the Collateral, business
operations or financial condition and all computer programs or discs or any
equipment containing the information.
"CASH BURN" is the amount that is equal to the greater of (i) the net
decrease in cash for the previous, consecutive four (4) month period or (ii) the
net decrease in cash for the next previous month, multiplied by four (4).
"CLOSING DATE" is the date of this Agreement.
"CODE" is the Massachusetts Uniform Commercial Code.
"COLLATERAL" is the property described on EXHIBIT A.
"COMMITTED EQUIPMENT LINE" is an Equipment Advance or Equipment Advances of
up to Five Hundred Thousand Dollars ($500,000.00).
"COMMITMENT TERMINATION DATE" is the date which is nine (9) months from the
Closing Date.
"CONTINGENT OBLIGATION" is, for any Person, any direct or indirect
liability, contingent or not, of that Person for (i) any indebtedness, lease,
dividend, letter of credit or other obligation of another such as an obligation
directly or indirectly guaranteed, endorsed, co-made, discounted or sold with
recourse by that Person, or for which that Person is directly or indirectly
liable; (ii) any obligations for undrawn letters of credit for the account of
that Person; and (iii) all obligations from any interest rate, currency or
commodity swap agreement, interest rate cap or collar agreement, or other
agreement or arrangement designated to protect a Person against fluctuation in
interest rates, currency exchange rates or commodity prices; but "Contingent
Obligation" does not include endorsements in the ordinary course of business.
The amount of a Contingent Obligation is the stated or determined amount of the
primary obligation for which the Contingent Obligation is made or, if not
determinable, the maximum reasonably anticipated liability for it determined by
the Person in good faith; but the amount may not exceed the maximum of the
obligations under the guarantee or other support arrangement.
"CREDIT EXTENSION" is each Equipment Advance, or any other extension of
credit by Bank for Borrower's benefit.
"CURRENT LIABILITIES" are the aggregate amount of Borrower's Total
Liabilities which mature within one (1) year, which shall include, without
limitation, all obligations and liabilities of Borrower to Bank.
"ELIGIBLE EQUIPMENT" is (a) general purpose computer equipment, office
equipment, test and laboratory equipment, furnishings, and, subject to the
limitations set forth below, and (b) Other Equipment that complies with all of
Borrower's representations and warranties to Bank and which is reasonably
acceptable to Bank in all respects.
"EQUIPMENT ADVANCE" is defined in Section 2.1.1.
"EQUIPMENT" is all present and future machinery, equipment, tenant
improvements, furniture, fixtures, vehicles, tools, parts and attachments in
which Borrower has any interest.
"ERISA" is the Employment Retirement Income Security Act of 1974, and its
regulations.
"EVENT OF LOSS" is defined in Section 6.8.
"FINANCED EQUIPMENT" is all present and future Eligible Equipment in which
Borrower has any interest, the purchase of which is financed by an Equipment
Advance.
11
"FUNDING DATE" is any date on which an Equipment Advance is made to or on
account of Borrower.
"GAAP" is generally accepted accounting principles.
"GUARANTOR" is any present or future guarantor of the Obligations,
including Viacord, Inc, a Delaware corporation.
"INDEBTEDNESS" is (a) indebtedness for borrowed money or the deferred price
of property or services, such as reimbursement and other obligations for surety
bonds and letters of credit, (b) obligations evidenced by notes, bonds,
debentures or similar instruments, (c) capital lease obligations and (d)
Contingent Obligations.
"INSOLVENCY PROCEEDING" is any proceeding by or against any Person under
the United States Bankruptcy Code, or any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, compositions, extensions
generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.
"INVESTMENT" is any beneficial ownership of (including stock,
partnership interest or other securities) any Person, or any loan, advance or
capital contribution to any Person.
"LIEN" is a mortgage, lien, deed of trust, charge, pledge, security
interest or other encumbrance.
"LOAN AMOUNT" in respect of each Equipment Advance is the original
principal amount of such Equipment Advance.
"LOAN DOCUMENTS" are, collectively, this Agreement, any note, or notes
executed by Borrower, and any other present or future agreement between Borrower
and/or for the benefit of Bank in connection with this Agreement, all as
amended, extended or restated.
"LOAN SUPPLEMENT" is defined in Section 2.1.1(b) and attached as EXHIBIT B.
"MATERIAL ADVERSE CHANGE" is: (i) A material impairment in the perfection
or priority of Bank's security interest in the Collateral or in the value of
such Collateral which is not covered by adequate insurance occurs; or (ii) Bank
determines, based upon information available to it and in its reasonable
judgment, that there is a reasonable likelihood that Borrower shall fail to
comply with one or more of the financial covenants in Section 6 during the next
succeeding financial reporting period;
"MATURITY DATE" is with respect to each Equipment Advance, the last day of
the Repayment Period for such Equipment Advance, or if earlier, (i) the date of
prepayment and/or (ii) the date of acceleration of such Equipment Advance by
Bank following an Event of Default.
"OBLIGATIONS" are debts, principal, interest, Bank Expenses and other
amounts Borrower owes Bank now or later, including letters of credit and foreign
exchange contracts, if any, and including interest accruing after Insolvency
Proceedings begin and debts, liabilities, or obligations of Borrower assigned to
Bank.
"ORIGINAL STATED COST" is (i), the original cost to the Borrower of the
item of new Equipment net of any and all freight, installation, tax, or (ii) the
fair market value assigned to such item of used Equipment by mutual agreement of
Borrower and Bank at the time of making of the Equipment Advance.
"OTHER EQUIPMENT" is leasehold improvements, intangible property such as
computer software and software licenses, equipment specifically designed or
manufactured for Borrower, other intangible property, limited use property and
other similar property and soft costs approved by the Bank, including sales tax,
freight and installation expenses. Unless otherwise agreed to by Bank, not more
than 25% of the proceeds of the Committed Equipment Line shall be used to
finance Other Equipment.
12
"PAYMENT DATE" is defined in Section 2.2(a).
"PERSON" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint
stock company, estate, entity or government agency.
"PREPAID INTEREST" is defined in Section 2.2(c).
"PRIME RATE" is Bank's most recently announced "prime rate," even if it is
not Bank's lowest rate.
"QUICK ASSETS" is, on any date, the Borrower's consolidated, unrestricted
cash, cash equivalents, net billed accounts receivable and investments with
maturities of less than 12 months determined according to GAAP.
"REPAYMENT PERIOD," as to each Equipment Advance, is a period of time equal
to thirty six (36) consecutive months commencing on the Funding Date of such
Equipment Advance.
"RESPONSIBLE OFFICER" is each of the Chief Executive Officer, President,
Chief Financial Officer and Controller of Borrower.
"SCHEDULE" is any attached schedule of exceptions.
"SCHEDULED PAYMENT" is defined in Section 2.2(a).
"SUBORDINATED DEBT" is debt incurred by Borrower subordinated to Borrower's
debt to Bank (pursuant to a subordination agreement entered into between the
Bank, the Borrower and the subordinated creditor).
"SUBSIDIARY" is for any Person, joint venture, or any other business entity
of which more than 50% of the voting stock or other equity interests is owned or
controlled, directly or indirectly, by the Person or one or more Affiliates of
the Person.
"TOTAL LIABILITIES" is on any day, obligations that should, under GAAP, be
classified as Liabilities on Borrower's consolidated balance sheet, including
all Indebtedness.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as a sealed instrument under the laws of the Commonwealth of
Massachusetts as of the date first above written.
BORROWER:
VIACELL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
------------------------------------------------
Title: Chief Executive Officer
-----------------------------------------------
BANK:
SILICON VALLEY BANK, D/B/A
SILICON VALLEY EAST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------------
Title: Vice President
-----------------------------------------------
SILICON VALLEY BANK
By: /s/ Signature on File
--------------------------------------------------
Name: [illegible]
------------------------------------------------
Title: AVP
-----------------------------------------------
(Signed in Santa ▇▇▇▇▇ County, California)
14
EXHIBIT A
The Collateral consists of all of Borrower's right, title and interest
in and to the following:
Each item of equipment, or personal property financed with a "Equipment
Advance" pursuant to that certain Loan and Security Agreement, dated as of June
15, 2000 (the "Loan Agreement"), by and between Borrower and Bank, including,
without limitation, the property described in Annex A hereto, whether now owned
or hereafter acquired, together with all substitutions, renewals or replacements
of and additions, improvements, and accessions to any and all of the foregoing,
and all proceeds from sales, renewals, releases or other dispositions thereof.
15
ANNEX A TO EXHIBIT A
The Financed Equipment being financed with the Equipment Advance is
listed below. Upon the funding of such Equipment Advance, this schedule
automatically shall be deemed to be a part of the Collateral.
Description of Equipment Make Model Serial # Invoice#
16
EXHIBIT B
FORM OF LOAN AGREEMENT SUPPLEMENT
LOAN AGREEMENT SUPPLEMENT No. [1]
LOAN AGREEMENT SUPPLEMENT No. [1], dated June 15, 2000 ("Supplement"),
to the Loan and Security Agreement dated as of June 15, 2000 (the "Loan
Agreement") by and between the undersigned ViaCell, Inc, ("Borrower"), and
Silicon Valley Bank ("Bank").
Capitalized terms used herein but not otherwise defined herein are used
with the respective meanings given to such terms in the Loan Agreement.
To secure the prompt payment by Borrower of all amounts from time to time
outstanding under the Loan Agreement, and the performance by Borrower of all the
terms contained in the Loan Agreement, Borrower grants Bank, a first priority
security interest in each item of equipment and other property described in
Annex A hereto, which equipment and other property shall be deemed to be
additional Financed Equipment and Collateral. The Loan Agreement is hereby
incorporated by reference herein and is hereby ratified, approved and confirmed.
Annex A (Equipment Schedule) and Annex B (Loan Terms Schedule) are attached
hereto. The proceeds of the Loan should be transferred to Borrower's account
with Bank set forth below:
Bank Name: Silicon Valley Bank
Account No.: 3300210718
Borrower hereby certifies that (a) the foregoing information is true and correct
and authorizes Bank to endorse in its respective books and records, the Basic
Rate applicable to the Funding Date of the Loan contemplated in this Loan
Agreement Supplement and the principal amount set forth in the Loan Terms
Schedule; (b) the representations and warranties made by Borrower in the Loan
Agreement are true and correct on the date hereof and shall be true and correct
on such Funding Date. No Event of Default has occurred and is continuing under
the Loan Agreement. This Supplement may be executed by Borrower and Bank in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
This Supplement is delivered as of this day and year first above
written.
SILICON VALLEY BANK ViaCell, Inc.
By: By: /s/ ▇▇▇▇ ▇▇▇▇
--------------------------------- ----------------------------------
Name: Name: ▇▇▇▇ ▇▇▇▇
-------------------------- -----------------------------
Title: Title: Chief Executive Officer
------------------------- ----------------------------
Annex A - Description of Financed Equipment
Annex B - Loan Terms Schedule
17
SILICON VALLEY BANK
INVOICE FOR LOAN CHARGES
BORROWER: VIACELL, INC.
LOAN OFFICER: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ASSISTANT VICE PRESIDENT
DATE: 8/22/2000
Committed Equipment Line Fee $ 2,500.00
Other Bank Expenses -
(a) UCC Filing Fees 4 @ $20.00 $ 80.00
(b) Post Filing Searches 2 @ $40.00 $ 80.00
Less Payments Received ($ 2,500.00)
TOTAL FEES DUE $ 160.00
--------------
Please indicate the method of payment:
{ } A check for the total amount is attached.
{X} Debit DDA ___________ for the total amount.
{ ) Loan proceeds
IN ADDITION TO THE FOREGOING, THE BORROWER HEREBY AGREES TO REIMBURSE THE BANK
FOR ALL COSTS AND EXPENSES INCURRED IN CONNECTION WITH THE LOAN, INCLUDING,
WITHOUT LIMITATION, AUDITS, LEGAL FEES, EXPENSES AND DISBURSEMENTS. THE BANK
WILL PROVIDE BORROWER WITH PRIOR NOTICE OF ALL SUCH DEBITS. ALL DEBITS SHALL BE
CHARGED TO THE FOLLOWING ACCOUNT:
( } Debit DDA __________ for the total amount.
{ } Loan proceeds
BORROWER:
VIACELL, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (per company)
---------------------------------------------
Authorized Signer
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
Silicon Valley Bank (Date)
Account Officer's Signature
18
NEGATIVE PLEDGE AGREEMENT
This Negative Pledge Agreement is made as of June 15, 2000, by and
between VIACELL, INC. ("Borrower") and SILICON VALLEY BANK, a
California-chartered bank, with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and with a loan production office located
at Wellesley Office Park, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, doing business under the name "Silicon Valley East" ("Bank").
In connection with, among other documents, the Loan and Security Agreement (the
"Loan Documents") being concurrently executed herewith between Borrower and
Bank, Borrower agrees as follows:
1. Except for the granting of licenses or sublicenses by Borrower
in the ordinary course of business, Borrower has not, and
shall not, sell, transfer, assign, mortgage, pledge, lease,
grant a security interest in, or encumber any of Borrower's
Intellectual Property (as defined below):
2. Borrower has not, and shall not, enter into a negative pledge
agreement, or similar agreement, affecting the rights of the
Intellectual Property of Borrower with any other party.
3. It shall be an event of default under the Loan Documents
between Borrower and Bank if there is a breach of any term of
this Negative Pledge Agreement.
4. As used herein,
(a) "Intellectual Property" means:
(i) Any and all Copyrights;
(ii) Any and all trade secrets, and any and all
intellectual property rights in computer
software and computer software products now
or hereafter existing, created, acquired or
held by Borrower;
(iii) Any and all design rights which may be
available to Borrower now or hereafter
existing, created, acquired or held by
Borrower;
(iv) All Mask Works or similar rights available
for the protection of semiconductor chips;
(v) All Patents;
(vi) Any Trademarks;
(vii) Any and all claims of Borrower for damages
by way of past, present and future
infringements of any of the rights included
above, with the right, but not the
obligation, to ▇▇▇ for and collect such
damages for said use or infringement of the
intellectual property rights identified
above;
(viii) All licenses or other rights to use any of
the Copyrights, Patents, Trademarks, or Mask
Works and all license fees and royalties
arising from such use to the extent
permitted by such license or rights; and
(ix) All amendments, extensions, renewals and
extensions of any of the Copyrights,
Trademarks, Patents, or Mask Works; and
(x) All proceeds and products of the foregoing,
including without limitation all payments
under insurance or any indemnity or warranty
payable in respect of any of the foregoing.
(b) "Copyrights" means any and all copyright rights,
copyright applications, copyright registrations and
like protections in each work or authorship and
derivative work thereof, whether published or
unpublished and whether or not the same also
constitutes a trade secret, now or hereafter
existing, created, acquired or held by Borrower.
(c) "Mask Works" means all mask work or similar rights
available for the protection of semiconductor chips,
now owned or hereafter acquired by Borrower;
(d) "Patents" means all patents, patent applications and
like protections including without limitation
improvements, divisions, continuations, renewals,
reissues, extensions and continuations-in-part of the
same of Borrower.
(e) "Trademarks" means any trademark and servicemark
rights, whether registered or not, of Borrower,
applications to register and registrations of the
same and like protections, and the entire goodwill of
the business of Borrower connected with and
symbolized by such trademarks.
5. Capitalized terms used but not otherwise defined herein shall
have the same meaning as in the Loan Documents.
6. The laws of the Commonwealth of Massachusetts shall apply to
this Agreement. BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, UNCONDITIONALLY, THE NON-EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS IN ANY
ACTION, SUIT, OR PROCEEDING OF ANY KIND, AGAINST IT WHICH
ARISES OUT OF OR BY REASON OF THIS AGREEMENT; PROVIDED,
HOWEVER, THAT IF FOR ANY REASON BANK CANNOT AVAIL ITSELF OF
THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS, BORROWER
ACCEPTS JURISDICTION OF THE COURTS AND VENUE IN SANTA ▇▇▇▇▇
COUNTY, CALIFORNIA.
7. This Agreement shall become effective only when it shall have
been executed by Borrower and Bank (provided, however, in no
event shall this Agreement become effective until signed by an
officer of Bank in California).
2
EXECUTED as a sealed instrument this 15th day of June, 2000 under the
laws of the Commonwealth of Massachusetts.
BORROWER:
VIACELL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
-----------------------------------
Title: Chief Executive Officer
-----------------------------------
BANK:
SILICON VALLEY BANK D/B/A
SILICON VALLEY EAST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
-----------------------------------
SILICON VALLEY BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Documentation Officer
-----------------------------------
(Signed in Santa Clara, California)
3
UNCONDITIONAL GUARANTY
For and in consideration of the loan by SILICON VALLEY BANK, a
California-chartered bank, with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and with a loan production office located
at Wellesley Office Park, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, doing business under the name "Silicon Valley East" ("Bank") to VIACELL,
INC., a Delaware corporation ("Borrower"), which loan is made pursuant to a Loan
and Security Agreement between Borrower and Bank over even date herewith (as may
be further amended from time to time, the "Agreement"), the undersigned
guarantor VIACORD, INC., a Delaware corporation with its principal office at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ("Guarantor"), hereby unconditionally and
irrevocably guarantees the prompt and complete payment of all amounts that
Borrower owes to Bank and performance by Borrower of the Agreement and any other
agreements between Borrower and Bank, as amended from time to time (collectively
referred to as the "Agreements"), in strict accordance with their respective
terms.
1. If Borrower does not perform its obligations under the Agreements,
Guarantor will immediately pay all amounts due (including, without limitation,
all principal, interest, and fees) and satisfy all Borrower's obligations under
the Agreements.
2. These obligations are independent of Borrower's obligations and
separate actions may be brought against Guarantor (whether action is brought
against Borrower or whether Borrower is joined in the action). Guarantor waives
benefit of any statute of limitations affecting its liability. Guarantor's
liability is not contingent on the genuineness or enforceability of the
Agreements.
3. Bank may, without notice to Guarantor and without affecting
Guarantor's obligations under this Guaranty: (a) renew, extend, or otherwise
change the terms of the Agreements; (b) take security for the payment of this
Guaranty or the Agreements; (c) exchange, enforce, waive and release any
security; and (d) apply the security and direct its sale as Bank, in its
discretion, chooses.
4. Guarantor waives:
(a) Any right to require Bank to: (i) proceed against Borrower
or any other person; (ii) proceed against or exhaust any security; or
(iii) pursue any other remedy. Bank may exercise or not exercise any
right or remedy it has against Borrower or any security it holds
(including the right to foreclose by judicial or non-judicial sale)
without affecting Guarantor's liability.
(b) Any defenses from disability or other defense of Borrower
or from the cessation of Borrowers liabilities.
(c) Any setoff, defense or counterclaim against Bank.
(d) Any defense from the absence, impairment or loss of any
right of reimbursement or subrogation or any other rights against
Borrower. Until Borrower's obligations to Bank have been paid,
Guarantor has no right of subrogation or reimbursement or subrogation
or other rights against Borrower.
(e) Any right to enforce any remedy that Bank has against
Borrower.
(f) Any rights to participate in any security held by Bank.
(g) Any demands for performance, notices of nonperformance or
of new or additional indebtedness. Guarantor is responsible for being
and keeping itself informed of
Borrower's financial condition. Unless Guarantor requests particular
information, Bank has no duty to provide information to Guarantor.
5. Guarantor acknowledges that, to the extent Guarantor has or may have
rights of subrogation or reimbursement against Borrower for claims arising out
of this Guaranty, those rights may be impaired or destroyed if Bank elects to
proceed against any real property security of Borrower by nonjudicial
foreclosure. That impairment or destruction could, under certain judicial cases
and based on equitable principles of estoppel, give rise to a defense by
Guarantor against its obligations under this Guaranty. Guarantor waives that
defense and any others arising from Bank's election to pursue nonjudicial
foreclosure.
6. If Borrower becomes insolvent or is adjudicated bankrupt or files a
petition for reorganization or similar relief under the United States Bankruptcy
Code, or if a petition is filed against Borrower and/or any obligation under the
Agreements is terminated or rejected, or any obligation of Borrower is modified
or if Borrower's obligations are avoided Guarantor's liability will not be
affected and its liability will continue. If Bank must return any payment
because of the insolvency, bankruptcy or reorganization of Borrower, Guarantor
or any other guarantor, this Guaranty will remain effective or be reinstated.
7. Guarantor subordinates any indebtedness of Borrower it holds to
Bank; and Guarantor will collect, enforce and receive payments as Bank's trustee
and will pay Bank those payments without reducing or affecting its liability
under this Guaranty.
8. Guarantor will pay Bank's reasonable attorneys' fees and other costs
and expenses incurred enforcing this Guaranty. This Guaranty may not be waived,
revoked or amended without Lender's prior written consent. If any provision of
this Guaranty is unenforceable, all other provisions remain effective. This
Guaranty represents the entire agreement among the parties about this guaranty.
No prior dealings, no usage of trade, and no parol or extrinsic evidence may
supplement or vary this Guaranty. Bank may assign this Guaranty. This Guaranty
benefits Bank, its successors and assigns. This Guaranty is in addition to any
other guaranties Bank obtains.
9. Guarantor represents and warrants that (i) it has taken all action
necessary to authorize execute, deliver and perform this Guaranty; (ii)
execution, delivery and performance of this Guaranty do not conflict with any
organizational documents or agreements to which it is a party; and (iii) this
Guaranty is a valid and binding obligation, enforceable against Guarantor
according to its terms.
10. Guarantor will do all of the following:
(a) Maintain its corporate existence, remain in good standing
in Delaware, and continue to qualify in each jurisdiction in which the
failure to qualify could have a material adverse effect on the
financial condition, operations or business. Maintain all licenses,
approvals, and agreements, the loss of which could have a material
adverse effect on its financial condition, operations or business.
(b) Comply with all statutes and regulations if non-compliance
could adversely affect its financial condition, operations or business.
(c) Execute other instruments and take action Bank reasonably
requests to effect the purposes of this Agreement.
11. This Guaranty is governed by Massachusetts law, without regard to
conflicts of laws. GUARANTOR WAIVES ITS RIGHT TO A JURY TRIAL OF ANY ACTION
ARISING OUT OF THIS
2
GUARANTY, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, AND ALL OTHER CLAIMS.
Guarantor submits to the exclusive jurisdiction of the State and Federal courts
in Massachusetts.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this
Guaranty as an instrument under seal under the laws of the Commonwealth of
Massachusetts, as of this 15th day of June, 2000.
("Guarantor")
VIACORD, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: President
---------------------------------
ViaCell, Inc.
President
ViaCord, Inc.
3
LOAN MODIFICATION AGREEMENT
This Loan Modification Agreement is entered into as of November 2, 2000,
by and between VIACELL, INC. (the "Borrower") and Silicon Valley Bank, a
California-chartered bank doing business in Massachusetts as "Silicon Valley
East" ("Bank").
1. DESCRIPTION OF EXISTING INDEBTEDNESS. Among other indebtedness which may be
owing by Borrower to Bank, Borrower is indebted to Bank pursuant to, among other
documents, a Loan and Security Agreement, dated June 15, 2000, as may be amended
from time to time, (the "Loan Agreement"). The Loan Agreement provided for,
among other things, a Committed Equipment Line in the original principal amount
of Five Hundred Thousand Dollars ($500,000). Defined terms used but not
otherwise defined herein shall have the same meanings as set forth in the Loan
Agreement.
Hereinafter all indebtedness owing by Borrower to Bank shall be referred to as
the "Indebtedness."
2. DESCRIPTION OF COLLATERAL. Repayment of the Indebtedness is secured by the
Collateral as described in the Loan Agreement. Additionally, the Committed
Equipment Line is guaranteed by VIACORD, INC. (the "Guarantor") pursuant to a
Unconditional Guaranty agreement (the "Guaranty").
Hereinafter, the above-described security documents and guaranties, together
with all other documents securing repayment of the Indebtedness shall be
referred to as the "Security Documents". Hereinafter, the Security Documents,
together with all other documents evidencing or securing the Indebtedness shall
be referred to as the "Existing Loan Documents".
3. DESCRIPTION OF CHANGE IN TERMS.
A. MODIFICATION(S) TO LOAN AGREEMENT.
1. Section 2.1.2 entitled "Term Loan" is hereby incorporated to read as
follows:
(a) Bank shall make a Term Loan available to Borrower,
(b) Through January 31, 2001, (the "Term Loan Availability End
Date"), Bank will make 3 advances (the "Term Loan Advance" and
collectively, "Term Loan Advances") not exceeding the Term Loan.
Term Loan Advances outstanding on the Term Loan Availability End
Date will be payable 12 equal quarterly installments of principal
plus accrued interest (the "Term Loan Payment"). Each Term Loan
Payment is payable on the last day of each quarter during the
term of the loan. Borrower's final Term Loan Payment due on
January 31, 2004 (the "Term Loan Maturity Date") includes all
outstanding Term Loan principal and accrued interest.
(c) The Term Loan accrues interest at a per annum rate equal to the
Prime Rate. After an Event of Default, Obligations accrue
interest at 5 percent above the rate effective immediately before
the Event of Default. The interest rate increases and decreases
when the Prime Rate changes. Interest is computed on a 360 day
year for the actual number of days elapsed.
2. Section 4.1 entitled "Grant of Security Interest" is hereby amended in
part to provide that Borrower shall allow Bank to perfect its security
interest in Borrower's Certificate of Deposit #8800054341.
3. Section 6.6 entitled "Financial Covenants" is hereby amended in part
to provide that the Financial Covenants under this Section shall apply
only to the Committed Equipment Line.
4. Exhibit "A" is hereby amended in part to include the following:
Certificate of Deposit No. 8800054341 in an amount not less than One
Million Dollars ($1,000,000), together with all renewals and proceeds
of the foregoing; and
Borrower and Bank are parties to that certain Negative Pledge
Agreement, whereby Borrower, in connection with Bank's loan or loans
to Borrower, has agreed, among other things, not to sell, transfer,
assign, mortgage, pledge, lease grant a security interest in, or
encumber any of its Intellectual Property, without Bank's prior
written consent.
5. The following defined terms set forth in Section 13.1 entitled
"Definitions" are hereby incorporated to read as follows:
"Credit Extension" is each Equipment Advance, Term Loan, or any other
extension of credit by Bank for Borrower's benefit.
"Term Loan Availability End Date" is defined in Section 2.1.2.
"Term Loan" is a loan of $1,000,000.
"Term Loan Maturity Date" is defined in Section 2.1.2.
4. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
necessary to reflect the changes described above.
5. NO DEFENSES OF BORROWER. Borrower agrees that, as of this date, it has no
defenses against the obligations to pay any amounts under the Indebtedness.
6. CONTINUING VALIDITY. Borrower understands and agrees that in modifying the
existing Indebtedness, Bank is relying upon Borrower's representations,
warranties, and agreements, as set forth in the Existing Loan Documents.
Except as expressly modified pursuant to this Loan Modification Agreement,
the terms of the Existing Loan Documents remain unchanged and in full force
and effect. Bank's agreement to modifications to the existing Indebtedness
pursuant to this Loan Modification Agreement in no way shall obligate Bank to
make any future modifications to the Indebtedness. Nothing in this Loan
Modification Agreement shall constitute a satisfaction of the Indebtedness.
It is the intention of Bank and Borrower to retain as liable parties all
makers and endorsers of Existing Loan Documents, unless the party is
expressly released by Bank in writing. Unless expressly released herein, no
maker, endorser, or guarantor will be released by virtue of this Loan
Modification Agreement. The terms of this Paragraph apply not only to this
Loan Modification Agreement, but also to all subsequent loan modification
agreements.
7. JURISDICTION/VENUE. Borrower accepts for itself and in connection with its
properties, unconditionally, the non-exclusive jurisdiction of any state or
federal court of competent jurisdiction in the Commonwealth of Massachusetts
in any action, suit, or proceeding of any kind against it which arises out of
or by reason of this Loan Modification Agreement; provided, however, that if
for any reason Bank cannot avail itself of the courts of the Commonwealth of
Massachusetts, then venue shall lie in Santa ▇▇▇▇▇ County, California.
8. COUNTERSIGNTURE. This Loan Modification Agreement shall become effective
only when it shall have been executed by Borrower and Bank (provided,
however, in no event shall this Loan Modification Agreement become effective
until signed by an officer of Bank in California).
2
This Loan Modification Agreement is executed as of the date first
written above.
BORROWER: BANK:
VIACELL, INC. SILICON VALLEY BANK, doing
business as SILICON VALLEY EAST
By: /s/ ▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - VP
------------------------------- ------------------------------
Name: ▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------- ----------------------------
Title: CEO Title: Vice President
---------------------------- ---------------------------
SILICON VALLEY BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: Loan Administrative Team
Leader
---------------------------
(Signed at Santa ▇▇▇▇▇ County, CA)
The undersigned hereby consent to the modifications to the Indebtedness pursuant
to this Loan Modification Agreement, hereby ratifies all the provisions of the
Guaranty and confirms that all provisions of that document are in full force and
effect.
GUARANTOR
VIACORD, INC. Date: 12/4/00
----------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: CTO
-------------------------------
3
LOAN MODIFICATION AGREEMENT
This Loan Modification Agreement is entered into as of March 9, 2001,
however, effective as of January 31, 2001, by and between VIACELL, INC. (the
"Borrower") and Silicon Valley Bank, a California-chartered bank doing business
in Massachusetts as "Silicon Valley East" ("Bank").
1. DESCRIPTION OF EXISTING INDEBTEDNESS. Among other indebtedness which may be
owing by Borrower to Bank, Borrower is indebted to Bank pursuant to, among other
documents, a Loan and Security Agreement, dated June 15, 2000, as may be amended
from time to time, (the "Loan Agreement"). The Loan Agreement provided for,
among other things, a Committed Equipment Line in the original principal amount
of Five Hundred Thousand Dollars ($500,000). The Loan Agreement was modified,
pursuant to, among other documents, a Loan Modification Agreement dated November
2, 2000, pursuant to which, among other things, a Term Loan in the original
principal amount of One Million Dollars ($1,000,000) was incorporated. Defined
terms used but not otherwise defined herein shall have the same meanings as set
forth in the Loan Agreement.
Hereinafter, all indebtedness owing by Borrower to Bank shall be referred to as
the "Indebtedness."
2. DESCRIPTION OF COLLATERAL. Repayment of the Indebtedness is secured by the
Collateral as described in the Loan Agreement. Additionally, the Committed
Equipment Line is guaranteed by VIACORD, INC. (the "Guarantor") pursuant to a
Unconditional Guaranty agreement (the "Guaranty").
Hereinafter, the above-described security documents and guaranties, together
with all other documents securing repayment of the Indebtedness shall be
referred to as the "Security Documents". Hereinafter, the Security Documents,
together with all other documents evidencing or securing the Indebtedness shall
be referred to as the "Existing Loan Documents".
3. DESCRIPTION OF CHANGE IN TERMS.
A. MODIFICATION(S) TO LOAN AGREEMENT.
1. Section 2.1.2 entitled "Term Loan" is hereby amended
to read as follows:
Through March 15, 2001, (the "Term Loan
Availability End Date"), Bank will make 3 advances
(the "Term Loan Advance" and collectively, "Term
Loan Advances") not exceeding the Term Loan. Term
Loan Advances outstanding on the Term Loan
Availability End Date will be payable 12 equal
quarterly installments of principal plus accrued
interest (the "Term Loan Payment"). Each Term Loan
Payment is payable on the last day of each quarter
during the term of the loan. Borrower's final Term
Loan Payment due on March 31, 2004 (the "Term Loan
Maturity Date") includes all outstanding Term Loan
principal and accrued interest.
4. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
necessary to reflect the changes described above.
5. NO DEFENSES OF BORROWER. Borrower agrees that, as of this date, it has no
defenses against the obligations to pay any amounts under the Indebtedness.
6. CONTINUING VALIDITY. Borrower understands and agrees that in modifying the
existing Indebtedness, Bank is relying upon Borrower's representations,
warranties, and agreements, as set forth in the Existing Loan Documents. Except
as expressly modified pursuant to this Loan Modification Agreement, the terms of
the Existing Loan Documents remain unchanged and in full force and effect.
Bank's agreement to modifications to the existing Indebtedness pursuant to this
Loan Modification Agreement in no way shall obligate Bank to make any future
modifications to the Indebtedness. Nothing in this Loan Modification Agreement
shall constitute a satisfaction of the Indebtedness. It is the intention of Bank
and Borrower to retain as liable parties all makers and endorsers of Existing
Loan Documents, unless the party is expressly released by Bank in writing.
Unless expressly released herein, no maker, endorser, or guarantor will be
released by virtue of this Loan Modification Agreement. The terms of this
Paragraph apply not only to this Loan Modification Agreement, but also to all
subsequent loan modification agreements.
7. JURISDICTION/VENUE. Borrower accepts for itself and in connection with its
properties, unconditionally, the non-exclusive jurisdiction of any state or
federal court of competent jurisdiction in the Commonwealth of Massachusetts
in any action, suit, or proceeding of any kind against it which arises out of
or by reason of this Loan Modification Agreement; provided, however, that if
for any reason Bank cannot avail itself of the courts of the Commonwealth of
Massachusetts, then venue shall lie in Santa ▇▇▇▇▇ County, California.
8. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective
only when it shall have been executed by Borrower and Bank (provided, however,
in no event shall this Loan Modification Agreement become effective until signed
by an officer of Bank in California).
This Loan Modification Agreement is executed as of the date first
written above.
BORROWER: BANK:
VIACELL, INC. SILICON VALLEY BANK, doing
business as SILICON VALLEY EAST
By: /s/ ▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- -----------------------------------
Name: ▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------- ---------------------------------
Title: CEO Title: Associate
------------------------- --------------------------------
SILICON VALLEY BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Loan ▇▇▇▇▇.▇▇▇▇ Leader
---------------------------------
(Signed at Santa ▇▇▇▇▇ County, CA)
The undersigned hereby consent to the modifications to the Indebtedness pursuant
to this Loan Modification Agreement, hereby ratifies all the provisions of the
Guaranty and confirms that all provisions of that document are in full force and
effect.
GUARANTOR:
VIACORD, INC. Date: 3/14/01
--------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
-------------------------
Title:
-------------------------
2
[LOGO] SILICON VALLEY BANK LETTERHEAD
RECEIPT FOR TERM DEPOSIT
Class Code 780 Account Number 8800054341 Interest Rate 4.40% Annual Percentage
Yield 4.40%
Issue Date 12/26/00 Maturity Date 12/21/01 Term 360 days
Amount Deposited *****$1,000,000.00***** Dollars
--------------------------------------------------------------
IN THE NAME(S) OF
******Viacell Inc.*******
66A 043244816
INTEREST PAYMENT FREQUENCY
{ } Monthly { } Quarter { } Semi-Annually { } Annually
{X} At Maturity Of The Certificate
METHOD OF INTEREST DISTRIBUTION
{ } Credit To Certificate At Maturity Only {X} Credit To Acct. No. 3300210718
-----------
TCD HELD FOR COLLATERAL
X TRADE NOTE CASH Signature on File
_ FINANCE _ DEPT. _ MGT -------------------------
BANK AUTHORIZED SIGNATURE
This Term Deposit is Subject To The Terms And Conditions Hereon And As Specified
On The Signature Card And Agreement On File With Silicon Valley Bank.
TERMS AND CONDITIONS
INTEREST RATE AND PAYMENT - The interest rate for your account will be paid
until the maturity date of your certificate. Interest begins to accrue on the
business day you deposit non-cash items (for example, checks). Interest will
not be compounded. Interest will be credited according to your instructions
at the time your account is opened. The interest payment may be credited to
your certificate at maturity, credited to another account at the Bank, or
paid by cashier's check on either a monthly, quarterly, semi-annual or annual
basis or at maturity of the certificate. However, if the certificate is less
than 31 days, interest will only be credited at maturity. We use the daily
balance method to calculate the interest on your account. This method applies
a daily periodic rate to the principal in the account each day.
ADDITIONAL DEPOSITS - After the account is opened, deposits will only be
accepted on the maturity date or any date within the grace period.
RENEWAL - This account will automatically renew at maturity for a like period at
Silicon Valley Bank's prevailing interest rate for that particular term. You
have a grace period after the maturity date to withdraw the funds without being
charged a penalty. You have a grace period of two (2) business days on a
maturity of a 7-31 day term account. You have a grace period of ten (10)
business days on a maturity of a 32 or more day term account. The Bank reserves
the right to terminate this term deposit during any renewal period upon 10 days
written notice to depositor. If you withdraw your funds during the grace period,
the term deposit will cease earning interest as of the maturity date.
PENALTY FOR EARLY WITHDRAWAL - Partial withdrawals will not be permitted. If we
permit a withdrawal before the maturity date, a penalty as shown below will be
imposed.
a. Deposits with an original maturity of 31 days or less will forfeit all
interest earned from the date of deposit. There is a minimum penalty of
seven (7) days simple interest.
b. Deposits with an original maturity of 32 days to one year will forfeit
an amount equal to 31 days simple interest at the interest rate paid on
the time deposit at the time of withdrawal on the full amount of the
deposit.
c. Deposits with an original maturity of more than one year will forfeit
an amount equal to 90 days simple interest at the interest rate being
paid on the time deposit at the time of withdrawal on the full amount
of the deposit.
d. There is no penalty if early withdrawal is made due to the death of a
depositor or if the depositor has been declared legally incompetent.
In complying with the terms of this account, it may be necessary to deduct a
portion of the principal deposit to satisfy an early withdrawal penalty.
PRESENTATION OF THIS RECEIPT IS NECESSARY FOR WITHDRAWAL
OF FUNDS FROM THIS ACCOUNT
NOT NEGOTIABLE * NOT TRANSFERABLE
LOAN MODIFICATION AGREEMENT
This Loan Modification Agreement is entered into as of October 24,
2001, by and between VIACELL, INC., (the "Borrower") and Silicon Valley Bank, a
California-chartered bank doing business in Massachusetts as "Silicon Valley
East" ("Bank").
1. DESCRIPTION OF EXISTING INDEBTEDNESS. Among other indebtedness which may be
owing by Borrower to Bank, Borrower is indebted to Bank pursuant to, among other
documents, a Loan and Security Agreement, dated June 15, 2000, as may be amended
from time to time, (the "Loan Agreement"). The Loan Agreement provided for,
among other things, a Committed Equipment Line in the original principal amount
of Five Hundred Thousand Dollars ($500,000). The Loan Agreement was modified,
pursuant to, among other documents, a Loan Modification Agreement dated November
2, 2000, pursuant to which, among other things, a Term Loan in the original
principal amount of One Million Dollars ($1,000,000) was incorporated. Defined
terms used but not otherwise defined herein shall have the same meanings as set
forth in the Loan Agreement.
Hereinafter, all indebtedness owing by Borrower to Bank shall be referred to as
the "Indebtedness."
2. DESCRIPTION OF COLLATERAL. Repayment of the Indebtedness is secured by the
Collateral as described in the Loan Agreement. Additionally, repayment of the
Indebtedness is secured by certificate of deposit number 8800054341. The
Committed Equipment line is guaranteed by VIACORD, INC. (the "Guarantor")
pursuant to a Unconditional Guaranty agreement (the "Guaranty").
Hereinafter, the above-described security documents and guaranties, together
with all other documents securing repayment of the Indebtedness shall be
referred to as the "Security Documents". Hereinafter, the Security Documents,
together with all other documents evidencing or securing the indebtedness
shall be referred to as the "Existing Loan Documents":
3. DESCRIPTION OF CHANGE IN TERMS.
A. MODIFICATION(S) TO LOAN AGREEMENT.
1. Section 2.1.3 entitled "Term Loan 2" is hereby
incorporated to read as follows:
2.1.3 Term Loan 2.
(a) Bank shall make Term Loan available to Borrower
as follows.
(b) Through April 24, 2002, (the "Term Loan 2
Availability End Date"), Bank will make up to 2
advances (the "Term Loan 2 Advance" and collectively,
"Term Loan 2 Advances") not exceeding the Term Loan
2. Each Term Loan 2 Advance shall immediately
amortize and be payable at Borrower's election (I)
in 36 equal monthly installments of principal plus
accrued Interest or (II) in 12 equal quarterly
installments of principal plus accrued interest
beginning 30 days after each Term Loan 2 Advance and
continue on the same day of each month thereafter
(the "Amortization Period"). The final payment for
each Amortization Period will be for all outstanding
principal and accrued interest not yet paid and will
be due on the applicable Term Loan 2 Maturity Date.
Borrower must notify Bank of its decision to request
quarterly payment of the payments at the time of the
Advance request or such payments shall be due and
payable on a monthly basis. Term Loan 2 Advances when
repaid may not be reborrowed.
(c) The Term Loan 2 accrues interest at a per annum
fixed rate equal to the Prime Rate on the date of
each Term Loan Advance. After an Event of Default,
Obligations accrue interest at 5 percent above the
rate effective immediately before the Event of
Default. The interest rate increases and decreases
when the Prime Rate changes. Interest is computed on
a 360 day year for the actual number of days elapsed.
2. Borrower grants Bank a first protected security
interest in Certificates of Deposit Number 8800054341
and ____________ to secure the Obligations under the
Loan Agreement, together with all renewals and
proceeds thereof. The foregoing Certificates of
Deposit shall provide for maturities equal to the
maturities of the Credit Extensions, but not less
than three years.
3. Exhibit "A" is hereby amended in part to include the
following as Collateral:
Certificates of Deposit Nos. 8800054341 and
______________, together with all renewals and
proceeds of the foregoing.
4. The following defined terms as set forth in Section
13.1 entitled "Definitions" are hereby incorporated
to read as follows:
"Amortization Period" is defined in Section 2.1.3.
"Credit Extension" is each Equipment Advance, Term
Loan, Term Loan 2, or any other extension of credit
by Bank for Borrower's benefit.
"Term Loan 2 Availability End Date" is defined in
Section 2.1.3.
"Term Loan 2" is a loan of $350,000.
"Term Loan 2 Maturity Date" is a date which is 36
months from the beginning of each Amortization Period
but not longer than April 24, 2005.
4. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
necessary to reflect the changes described above.
5. NO DEFENSES OF BORROWER. Borrower agrees that, as of this date, it has no
defenses against the obligations to pay any amounts under the Indebtedness.
6. CONTINUING VALIDITY. Borrower understands and agrees that in modifying the
existing Indebtedness, Bank is relying upon Borrowers representations,
warranties, and agreements, as set forth in the Existing Loan Documents.
Except as expressly modified pursuant to this Loan Modification Agreement,
the terms of the Existing Loan Documents remain unchanged and in full force
and effect. Bank's agreement to modifications to the existing Indebtedness
pursuant to the Loan Modification Agreement in no way shall obligate Bank to
make any future modifications to the Indebtedness. Nothing in this Loan
Modification Agreement shall constitute a satisfaction of the Indebtedness.
It is the intention of Bank and Borrower to retain as liable parties all
makers and endorsers of Existing Loan Documents, unless the party is expressly
released by Bank in writing. Unless expressly released herein, no maker,
endorser, or guarantor will be released by virtue of this Loan Modification
Agreement. The terms of this Paragraph apply not only to this Loan
Modification Agreement, but also to all subsequent loan modification
agreements.
7. CONCERNING REVISED ARTICLES OF THE UNIFORM COMMERCIAL CODE. The Borrower
affirms and reaffirms that notwithstanding the terms of the Security
Documents to the contrary, (i) that the definition of "Code", "UCC" or
"Uniform Commercial Code" as set forth in the Security Documents shall be
deemed to mean and refer to "the Uniform Commercial Code as adopted by THE
COMMONWEALTH OF MASSACHUSETTS (PRESENTLY MASS. GEN. LAWS CH. 106), may be
amended and in effect from time to time and (ii) the Collateral shall
include, without limitation, the following categories of assets as defined in
the Code: equipment and any accessions thereto), supporting obligations and
any and all proceeds of any thereof, wherever located, whether now owned or
hereafter acquired.
8. JURISDICTION/VENUE. Borrower accepts for itself and in connection with its
properties, unconditionally, the non-exclusive jurisdiction of any state or
federal court of competent jurisdiction in the
2
Commonwealth of Massachusetts in any action, suit, or proceeding of any kind
against it which arises out of or by reason of this Loan Modification Agreement;
provided, however, that if for any reason Bank cannot avail itself of the courts
of the Commonwealth of Massachusetts then venue shall lie in Santa ▇▇▇▇▇ County,
California.
9. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective
only when it shall have been executed by Borrower and Bank (provided, however,
in no event shall this Loan Modification Agreement become effective until signed
by an officer of Bank in California).
This Loan Modification Agreement is executed as of the date first
written above.
BORROWER: BANK:
VIACELL, INC. SILICON VALLEY BANK, doing
business as SILICON VALLEY EAST
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------- -----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: VP Finance Title: Assistant VP
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SILICON VALLEY BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Loan ▇▇▇▇▇.▇▇▇▇ Leader
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(Signed at Santa ▇▇▇▇▇ County, CA)
The undersigned hereby consent to the modifications to the Indebtedness pursuant
to this Loan Modification Agreement, hereby ratifies all the provisions of the
Guaranty and confirms that all provisions of that document are in full force and
effect.
GUARANTOR:
VIACORD, INC. Date:_____________________
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
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Title: VP
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