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Document Preview Venture Loan and Security Agreement |
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Title: |
Venture Loan and Security Agreement |
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Entities: |
Acusphere, Inc.; Comdisco Holding Co. Inc.; Union Bank of California, NA; Testa, Hurwitz & Thibeault |
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Date: |
2001 |
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Size: |
Preview shows 14KB of 142KB total |
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Price: |
$57 |
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ID: |
#409414 |
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VENTURE LOAN AND SECURITY AGREEMENT
Dated as of September 27, 2001
by and among
GATX VENTURES, INC.
and
VENTURE LENDING & LEASING III, INC.
as Lenders
and
ACUSPHERE, INC.
a Delaware corporation
38 Sidney Street
Cambridge, Massachusetts 02139
as Borrower
and
ACUSPHERE SECURITIES CORPORATION
a Massachusetts corporation
38 Sidney Street
Cambridge, Massachusetts 02139
as Guarantor
CREDIT AMOUNT: $5,000,000
{TABLE}
{CAPTION}
Commitment Amounts: Commitment Percentage:
------------------ ---------------------
{S} {C} {C}
GATX Ventures, Inc.: $2,500,000 50%
Venture Lending & Leasing III, Inc. $2,500,000 50%
{/TABLE}
{TABLE}
{CAPTION}
{S} {C}
Repayment Period: 30 months
Loan Rate: 15%
Commitment Termination Date: September 30, 2001
{/TABLE}
The defined terms and information set forth on this cover page are a
part of the Venture Loan and Security Agreement, dated as of the date first
written above (this "Agreement"), entered into by and among GATX VENTURES, INC.,
and VENTURE LENDING & LEASING III, INC. (each individually a "Lender" and
collectively, "Lenders"), and the borrower ("Borrower") set forth above. The
terms and conditions of this Agreement agreed to between Lenders and Borrower
are as follows:
{PAGE}
ARTICLE I
INTERPRETATION
1.01. Certain Definitions. Unless otherwise indicated in this Agreement
or any other Operative Document, the following terms, when used in this
Agreement or any other Operative Document, shall have the following respective
meanings:
"Affiliate" means any Person that owns or controls directly or
indirectly ten percent or more of the stock of another entity, any Person that
controls or is controlled by or is under common control with such Persons or any
Affiliate of such Persons or each of such Person's officers, directors, joint
venturers or partners.
"Agreement" shall mean this Venture Loan and Security Agreement, as the
same may from time to time be amended or supplemented.
"Borrower" shall have the meaning set forth on the cover page hereof.
"Business Day" means any day that is not a Saturday, Sunday, or other
day on which banking institutions are authorized or required to close in
California or Massachusetts.
"Claim" has the meaning given to that term in Section 10.03.
"Code" means the Uniform Commercial Code as adopted and in effect in
the State of California, as amended from time to time.
"Collateral" has the meaning given to that term in Section 5.01.
"Comdisco Indebtedness" shall mean the Indebtedness of Borrower to
Comdisco, Inc. pursuant to a certain Subordinated Loan and Security Agreement,
dated as of October 16, 1998, as amended by Amendment Number One to Subordinated
Loan and Security Agreement, dated as of August 9, 1999.
"Commitment" means, with respect to each Lender, the amount set forth
on the cover page of this Agreement under the column titled "Commitment Amount"
and "Commitments" means all such amounts collectively.
"Commitment Percentage" means with respect to each Lender, the
percentage set forth on the cover page of this Agreement under the column titled
"Commitment Percentage."
"Commitment Termination Date" shall mean the date specified on the
cover page of this Agreement.
"Credit Amount" shall mean the maximum aggregate amount of the Loans
under this Agreement (if the conditions specified in Schedule 3 are satisfied),
which amount is set forth following such term on the cover page of this
Agreement.
-2-
{PAGE}
"Default" shall mean any event which with the passing of time or the
giving of notice or both would become an Event of Default hereunder.
"Default Rate" means the per annum rate of interest equal to 5% over
the Loan Rate, but such rate shall in no event be more than the highest rate
permitted by applicable law to be charged on commercial loans.
"Disclosure Schedule" shall mean Schedule 2 of this Agreement.
"Elan Indebtedness" shall mean any and all Indebtedness now existing or
hereafter incurred pursuant to that certain 6% Convertible Subordinated
Promissory Note due June 30, 2006 in the aggregate principal amount of
$8,010,000 originally issued to Elan International Services Ltd, as amended and
in effect from time to time.
"Elan Joint Venture" shall mean Acusphere Newco Ltd., an exempted
liability company incorporated under the laws of Bermuda, including any
successor or assign.
"Elan Joint Venture Agreements" shall mean and include (i) the
Securities Purchase Agreement by and between Borrower and Elan International
Services Ltd. ("Elan") dated as of June 30, 2001 (the "Elan Securities
Agreement"), (ii) the 6% Convertible Subordinated Promissory Note due June 30,
2006 in the aggregate principal amount of $8,010,000 (the "Elan Note"), (iii)
the Exchange Agreement by and between Borrower and Elan dated as of June 30,
2001, (iv) the Subscription, Joint Development and Operating Agreement by and
among Elan, Elan Corporation, plc, Elan Pharma International Limited, Borrower
and Acusphere Newco Ltd. dated as of June 30, 2001 (the "JDOA"), (v) the License
Agreement by and between Borrower and Acusphere Newco Ltd. dated as of June 30,
2001, and (vi) any amendments, extensions, renewals or extensions to any of the
foregoing, other than amendments, extensions, renewals or extensions which could
reasonably be expected to have a Material Adverse Effect.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief, resulting from
or based upon (a) the presence, placement, discharge, emission or release
(including intentional and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in, or from Property,
whether or not owned by Borrower, or (b) any other circumstances forming the
basis of any violation, or alleged violation, of any Environmental Law.
"Environmental Laws" means all foreign, federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes, together
with all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental
Authorities, in each case relating to environmental, health, safety and land use
matters, including the
-3-
{PAGE}
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
the Clean Air Act, the Federal Water Pollution Control Act of 1972, the Solid
Waste Disposal Act, the Federal Resource Conservation and Recovery Act, the
Toxic Substances Control Act and the Emergency Planning and Community
Right-to-Know Act.
"Equity Securities" of any Person shall mean (a) all common stock,
preferred stock, participations, shares, partnership interests or other equity
interests in and of such Person (regardless of how designated and whether or not
voting or non-voting) and (b) all warrants, options and other rights to acquire
any of the foregoing.
"Existing Equipment Indebtedness" shall mean Indebtedness now or
hereafter owed by Borrower with respect to the lease obligations outstanding on
the date hereof and arising under the Master Lease Agreement by and between
Borrower and Comdisco, Inc., dated as of May 1, 1995.
"Event of Default" has the meaning given to that term in Section 9.01.
"Funding Date" shall mean a date on which a Loan is made to or on
account of Borrower under this Agreement, provided, however, the Funding Date
shall in all cases be a Business Day.
"GAAP" shall mean generally accepted accounting principles and
practices as in effect in the United States of America from time to time and
recognized as such by the American Institute of Certified Public Accountants,
consistently applied. Each accounting term used but not otherwise expressly
defined herein shall have the meaning given to it by GAAP.
"Guarantor" means Acusphere Securities Corporation.
"Guarantor Collateral" means the personal property of Guarantor in
which Guarantor granted or pledged Lenders a security interest.
"Guarantor Security Agreement" means that certain Security Agreement
executed on or about the date hereof executed in favor of Lenders whereby
Guarantor granted a security interest in all of its personal property in favor
of Lenders to secure its obligations under the Guaranty.
"Guaranty" means that certain Guaranty executed by Guarantor in favor
of Lenders on or about the date hereof whereby the Guarantor guaranteed the
payment and performance of all obligations of Borrower to Lenders.
"GV" means GATX Ventures, Inc., and its successors and/or assigns.
"Hazardous Materials" means all those substances which are regulated
by, or which may form the basis of liability under, any Environmental Law,
including all substances identified under any Environmental Law as a pollutant,
contaminant, hazardous waste, hazardous constituent, special waste, hazardous
substance, hazardous material, or toxic substance, or petroleum or petroleum
derived substance or waste.
"Indebtedness" shall mean, with respect to Borrower or any Subsidiary,
the aggregate amount of, without duplication,
-4-
{PAGE}
(a) all obligations of such Person for borrowed money,
(b) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments,
(c) all obligations of such Person to pay the deferred purchase price
of property or services (excluding trade payables aged less than 180 days),
(d) all capital lease obligations of such Person,
(e) all obligations or liabilities of others secured by a lien on any
asset of such Person, whether or not such obligation or liability is assumed,
(f) all obligations or liabilities of others guaranteed by such Person;
and
(g) any other obligations or liabilities which are required by GAAP to
be shown as debt on the balance sheet of such Person or to which reference is
made by footnotes thereto.
Unless otherwise indicated, the term "Indebtedness" shall include all
Indebtedness of Borrower and the Subsidiaries.
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