LOAN AND SECURITY AGREEMENT
Exhibit 10.16
LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT (this “Agreement”) is entered into as of November 21, 2013, by and between TRIPLEPOINT CAPITAL LLC (“Lender”) and ROKA BIOSCIENCE, INC. (“Borrower”).
RECITALS
A. Borrower wishes to obtain credit from time to time from Lender, and Lender desires to extend credit to Borrower. This Agreement sets forth the terms on which Lender will advance credit to Borrower, and Borrower will repay the amounts owing to Lender.
AGREEMENT
The parties agree as follows:
| 1. | DEFINITIONS AND CONSTRUCTION. |
1.1 Definitions. As used in this Agreement, all capitalized terms shall have the definitions set forth on Exhibit A. Any term used in the Code and not defined herein shall have the meaning given to the term in the Code.
1.2 Accounting Terms. Any accounting term not specifically defined on Exhibit A shall be construed in accordance with GAAP and all calculations shall be made in accordance with GAAP. The term “financial statements” shall include the accompanying notes and schedules.
| 2. | LOAN AND TERMS OF PAYMENT. |
2.1 Credit Extensions.
(a) Promise to Pay. Borrower promises to pay to Lender, in lawful money of the United States of America, the aggregate unpaid principal amount of all Credit Extensions made by Lender to Borrower, together with interest on the unpaid principal amount of such Credit Extensions at rates in accordance with the terms hereof.
(b) [Reserved].
(c) Term Loans.
(i) Subject to and upon the terms and conditions of this Agreement, Lender agrees to make Term Loan Advances to Borrower. Borrower may request Term Loan Advances under Tranche A at any time from the date hereof through the Tranche A Availability End Date. The aggregate outstanding amount of Tranche A Term Loan Advances shall not exceed the Tranche A Term Loan Maximum Amount. Borrower may request Term Loan Advances under Tranche B at any time after the date in which Borrower has provided evidence satisfactory to Lender in its sole discretion, that the Tranche B Milestone has been met, through the Tranche B Availability End Date. The aggregate outstanding amount of Tranche B Term Loan Advances shall not exceed the Tranche B Term Loan Maximum Amount. The principal amount of each Term Loan Advance shall be at least One Hundred Thousand Dollars ($100,000).
(ii) Interest on Term Loan Advances shall accrue from the date each such Term Loan Advance (“Advance Date”) is made at the rate specified in Section 2.3(a), and shall be payable in accordance with Section 2.3(c). Each Tranche A Term Loan Advance shall be payable in twenty-seven (27) equal monthly installments of principal and interest, beginning on the date that is nine (9) months after first interest only payment date of such Term Loan Advance, other than an Interim Interest Payment, and continuing on the first of each month thereafter until paid in full. Each Tranche B Term Loan Advance shall be payable in thirty (30) equal
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monthly installments of principal and interest, beginning on the date that is six (6) months after first interest only payment date of such Term Loan Advance other than an Interim Interest Payment, and continuing on the first of each month thereafter until paid in full. Notwithstanding the foregoing, in the event Borrower has met the Equity Milestone, Borrower shall have the option to elect (prior to the date any Term Loan Advance is made) to make payments under any Tranche A or Tranche B Term Loan Advance in twenty-four (24) equal monthly installments of principal and interest, beginning on the date that is twelve (12) months after first interest only payment date of such Term Loan Advance other than an Interim Interest Payment, and continuing on the first of each month thereafter until paid in full (“Extended Interest Term”). Borrower may prepay any portion of any Term Loan Advance in accordance with Section 2.1(c)(iv). Any prepayments shall be subject to the terms of the Subordination Agreement.
(iii) When Borrower desires to obtain a Term Loan Advance, Borrower shall notify Lender (which notice shall be irrevocable) by facsimile transmission to be received no later than 3:00 p.m. Pacific time ten (10) Business Days before the day on which the Term Loan Advance is to be made (other than a Term Loan Advance to be made as of the Closing Date). Such notice shall be substantially in the form of Exhibit C. The notice shall be signed by a Responsible Officer or its designee. Lender shall be entitled to rely on any facsimile or telephonic notice given by a person who Lender reasonably believes to be a Responsible Officer or a designee thereof, and Borrower shall indemnify and hold Lender harmless for any damages or loss suffered by Lender as a result of such reliance. In addition, Borrower shall execute a promissory note for any Term Loan Advances in substantially the form as the promissory note set forth in Exhibit D.
(iv) Voluntary Prepayments. Borrower shall have the option to prepay all, or any portion of the Term Loan Advances, provided Borrower (a) provides written notice to Lender of its election to prepay the Term Loans at least five (5) days prior to such prepayment, and (b) pays to Lender, on the date of such prepayment, an amount equal to the sum of (1) all outstanding principal being prepaid, (2) all accrued and unpaid interest (through the end of the month in which such prepayment is made) in respect of the Term Loan Advances and all other unpaid fees and expenses, including Lender Expenses, owing hereunder, plus (B) the Prepayment Fee, plus (3) the End of Term Payment, plus (4) all other sums, if any, that shall have become due and payable under the Loan Documents, including interest at the Default Rate with respect to any past due amounts. Partial prepayments hereunder shall be applied first to accrued and unpaid interest, fees and expenses and then to the installments of principal due hereunder in the inverse order of their maturities.
2.2 [Intentionally Omitted]
2.3 Interest Rates, Payments, and Calculations.
(a) Advances. Except as set forth in Section 2.3(b), the Term Loan Advances shall bear interest, on the outstanding daily balance thereof, at the Interest Rate and the interest shall accrue in advance from the Advance Date.
(b) Late Fee; Default Rate. If any payment is not made within five (5) days after the date such payment is due, Borrower shall pay Lender a late fee equal to the lesser of (i) five percent (5%) of the amount of such unpaid amount or (ii) the maximum amount permitted to be charged under applicable law. All Obligations shall bear interest, from and after the occurrence and during the continuance of an Event of Default, at a rate equal to five (5) percentage points above the interest rate applicable immediately prior to the occurrence of the Event of Default.
(c) Payments. Interest on each Term Loan Advance shall be due and payable the first day of each month after the Advance Date for each such Term Loan Advance, and continuing on the first day of each month thereafter during the term of each such Term Loan Advance (unless such payment date falls on a weekend or national holiday in which event such payment shall be due on the previous Business Day). In the event a Term Loan Advance is made on any day other than the first day of the month, Borrower shall be deemed to make an Interim Interest Payment on the date of such Term Loan Advance such that the amount of the proceeds of such Term Loan Advance shall be reduced by the Interim Interest Payment for such Term Loan Advance. Any interest not paid when due shall be compounded by becoming a part of the Obligations, and such interest shall thereafter accrue interest at the rate then applicable hereunder. Any and all payments shall be made free and clear of and without deduction or withholding for any taxes except (i) as required by applicable law, (ii) taxes imposed on or
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measured by net income (however denominated) and franchise taxes and (iii) in the case of a lender that is organized under the laws of a jurisdiction other than the United States (a “Foreign Lender”), any U.S. federal withholding taxes imposed under Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not more onerous to comply with), any regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
2.4 [Reserved].
2.5 Fees. Borrower shall pay to Lender the following:
(a) Facility Fee. On or before the Closing Date, a nonrefundable fee equal to (i) $50,000 for the Tranche A and (ii) $50,000 for the Tranche B.
(b) Lender Expenses. (i) On the Closing Date, all Lender Expenses incurred through the Closing Date and, (ii) after the Closing Date, all Lender Expenses, as and when they become due;
(c) End of Term Payment. On the Maturity Date of each then outstanding Term Loan Advance, Borrower shall pay to Lender an end of term payment in an amount equal to seven percent (7.00%) of such Term Loan Advance; and
(d) Prepayment Fee. On the prepayment of any outstanding principal amounts due and owing under any Term Loan Advance, in addition to any other payments and fees due, Borrower shall pay to Lender an amount equal to the Prepayment Fee, if applicable.
2.6 Term. This Agreement shall become effective on the Closing Date and, subject to Section 13.8, shall continue in full force and effect for so long as any Obligations remain outstanding or Lender has any obligation to make Credit Extensions under this Agreement. Notwithstanding the foregoing, Lender shall have the right to terminate its obligation to make Credit Extensions under this Agreement immediately and without notice upon the occurrence and during the continuance of an Event of Default.
| 3. | CONDITIONS OF LOANS. |
3.1 Conditions Precedent to Initial Credit Extension. The obligation of Lender to make the initial Credit Extension is subject to the condition precedent that Lender shall have received, in form and substance satisfactory to Lender, the following (except as otherwise provided):
(a) this Agreement;
(b) an officer’s certificate of Borrower with respect to incumbency and resolutions authorizing the execution and delivery of this Agreement and the Loan Documents;
(c) a financing statement (Form UCC-1);
(d) agreement to furnish insurance;
(e) payment of the fees and Lender Expenses then due specified in Section 2.5;
(f) current SOS Reports indicating that except for Permitted Liens, there are no other security interests or Liens of record in the Collateral;
(g) current financial statements, including audited statements for Borrower’s most recently ended fiscal year, company prepared consolidated and consolidating balance sheets and income statements for the most recently ended month in accordance with Section 6.2, and such other updated financial information as Lender may reasonably request;
(h) current Compliance and Collateral Certificate in accordance with Section 6.2;
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(i) a Warrant in form and substance satisfactory to Lender;
(j) an ACH Debit Authorization Form;
(k) an inventory holder’s acknowledgment agreement or a notice of security interest, as applicable covering Borrower’s Tennessee locations duly executed by each third party in possession of Borrower’s assets;
(l) a landlord waiver duly executed by the landlord of each location at which Borrower leases real property including Borrower’s San Diego, California and Warren, New Jersey locations, provided that such fully executed landlord waivers may be delivered to Lender within thirty (30) days after the Closing Date;
(m) evidence satisfactory to Lender that Borrower received, prior to June 30, 2013, net cash proceeds in an amount equal to at least Twenty Five Million Dollars ($25,000,000);
(n) a Subordination Agreement, duly executed by Comerica Bank; and
(o) such other documents or certificates, and completion of such other matters, as Lender may reasonably deem necessary or appropriate.
3.2 Conditions Precedent to all Credit Extensions. The obligation of Lender to make each Credit Extension, including the initial Credit Extension, is further subject to the following conditions:
(a) timely receipt by Lender of the Payment/Advance Form as provided in Section 2.1;
(b) the representations and warranties contained in Article 5 shall be true and correct in all material respects on and as of the date of such Payment/Advance Form and on the effective date of each Credit Extension as though made at and as of each such date, and no Event of Default shall have occurred and be continuing, or would exist after giving effect to such Credit Extension (provided, however, that those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of such date). The making of each Credit Extension shall be deemed to be a representation and warranty by Borrower on the date of such Credit Extension as to the accuracy of the facts referred to in this Section 3.2 and
(c) no event or circumstance shall exist or have occurred that has had or could reasonably be expected to have a Material Adverse Effect.
| 4. | CREATION OF SECURITY INTEREST. |
4.1 Grant of Security Interest. Borrower grants and pledges to Lender a continuing security interest in the Collateral to secure prompt repayment of any and all Obligations and to secure prompt performance by Borrower of each of its covenants and duties under the Loan Documents. Except as set forth in the Schedule, such security interest constitutes a valid, first priority security interest in the presently existing Collateral, and will constitute a valid, first priority security interest in later-acquired Collateral. Except as expressly permitted by Section 7.1, Borrower also hereby agrees not to sell, transfer, assign, mortgage, pledge, lease, grant a security interest in, or encumber any of its Intellectual Property; provided that other than non-exclusive licenses given in the ordinary course of Borrower’s business and Permitted Transfers, in the event Borrower transfers, sells, assigns, grants a security interest in, hypothecates, permits or suffer to exist any Lien, or otherwise transfers any interest in or encumbers any material portion of the Intellectual Property (including through the grant of a negative pledge on the Intellectual Property to any Person other than Lender or Comerica), either voluntarily or involuntarily, without Lender’s prior written consent, Lender’s security interest shall include (and shall be deemed to have a Lien in such assets included from November 21, 2013) all Intellectual Property. Notwithstanding any termination of this Agreement, Lender’s Lien on the Collateral shall remain in effect for so long as any Obligations are outstanding.
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4.2 Perfection of Security Interest. Borrower authorizes Lender to file at any time financing statements, continuation statements, and amendments thereto that (i) either specifically describe the Collateral or describe the Collateral as all assets of Borrower of the kind pledged hereunder, and (ii) contain any other information required by the Code for the sufficiency of filing office acceptance of any financing statement, continuation statement, or amendment, including whether Borrower is an organization, the type of organization and any organizational identification number issued to Borrower, if applicable. Any such financing statements may be filed by Lender at any time in any jurisdiction whether or not Division 9 of the Code is then in effect in that jurisdiction. Borrower shall from time to time endorse and deliver to Lender, at the request of Lender, all Negotiable Collateral and other documents that Lender may reasonably request, in form satisfactory to Lender, to perfect and continue perfection of Lender’s security interests in the Collateral and in order to fully consummate all of the transactions contemplated under the Loan Documents. Borrower shall have possession of the Collateral, except where expressly otherwise provided in this Agreement or where Lender chooses to perfect its security interest by possession in addition to the filing of a financing statement. Where Collateral is in possession of a third party bailee, Borrower shall take such steps as Lender reasonably requests for Lender to (i) obtain an acknowledgment, in form and substance satisfactory to Lender, of the bailee that the bailee holds such Collateral for the benefit of Lender, (ii) obtain “control” of any Collateral consisting of investment property, deposit accounts, letter-of-credit rights or electronic chattel paper (as such items and the term “control” are defined in Revised Article 9 of the Code) by causing the securities intermediary or depositary institution or issuing Lender to execute a control agreement in form and substance satisfactory to Lender. Borrower will not create any chattel paper without placing a legend on the chattel paper acceptable to Lender indicating that Lender has a security interest in the chattel paper.
4.3 Right to Inspect. Lender (through any of its officers, employees, or agents) shall have the right, upon ten (10) business days’ prior notice, from time to time during Borrower’s usual business hours but no more than twice a year (unless an Event of Default has occurred and is continuing), to inspect Borrower’s Books and to make copies thereof and to check, test, and appraise the Collateral in order to verify Borrower’s financial condition or the amount, condition of, or any other matter relating to, the Collateral.
| 5. | REPRESENTATIONS AND WARRANTIES. |
Borrower represents and warrants as follows:
5.1 Due Organization and Qualification. Borrower and each Subsidiary is an entity duly existing under the laws of the jurisdiction in which it is organized and qualified and licensed to do business in any state in which the conduct of its business or its ownership of property requires that it be so qualified, except where the failure to do so could not reasonably be expected to cause a Material Adverse Effect.
5.2 Due Authorization; No Conflict. The execution, delivery, and performance of the Loan Documents are within Borrower’s powers, have been duly authorized, and are not in conflict with nor constitute a breach of any provision contained in Borrower’s organizational documents, nor will they constitute an event of default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement by which it is bound, except to the extent such default would not reasonably be expected to cause a Material Adverse Effect.
5.3 Collateral. Borrower has rights in or the power to transfer the Collateral, and its title to the Collateral is free and clear of Liens, adverse claims, and restrictions on transfer or pledge except for Permitted Liens. All Collateral is located solely in the Collateral States. All Inventory is in all material respects of good and merchantable quality, free from all material defects, except for Inventory for which adequate reserves have been made.
5.4 Intellectual Property. Borrower is the sole owner or licensee of the Intellectual Property, except for licenses granted by Borrower to its customers in the ordinary course of business. To the best of Borrower’s knowledge, each of the Copyrights, Trademarks and Patents is valid and enforceable, and no part of the Intellectual Property has been judged invalid or unenforceable, in whole or in part, and no claim has been made to Borrower that any part of the Intellectual Property violates the rights of any third party except to the extent such claim could not reasonably be expected to cause a Material Adverse Effect.
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5.5 Name; Location of Chief Executive Office; Location of Inventory and Equipment. Except as disclosed in the Schedule, Borrower has not done business under any name other than that specified on the signature page hereof, and its exact legal name is as set forth in the first paragraph of this Agreement. The chief executive office of Borrower is located in the Chief Executive Office State at the address indicated in Section 10 hereof. Except as disclosed in the Schedule, all inventory and equipment of Borrower is located at the address indicated in Section 10 hereof and in the Collateral States at the addresses set forth in the Schedule.
5.6 Actions, Suits, Litigation, or Proceedings. Except as set forth in the Schedule, there are no actions, suits, litigation or proceedings, at law or in equity, pending by or against Borrower or any Subsidiary before any court, administrative agency, or arbitrator in which a likely adverse decision could reasonably be expected to have a Material Adverse Effect.
5.7 No Material Adverse Change in Financial Statements. All consolidated and consolidating financial statements related to Borrower and any Subsidiary that are delivered by Borrower to Lender fairly present in all material respects Borrower’s consolidated and consolidating financial condition as of the date thereof and Borrower’s consolidated and consolidating results of operations for the period then ended. There has not been a material adverse change in the consolidated or in the consolidating financial condition of Borrower since the date of the most recent of such financial statements submitted to Lender.
5.8 Solvency, Payment of Debts. Borrower is able to pay its debts (including trade debts) as they mature; the net book value of Borrower’s assets (including goodwill minus disposition costs) exceeds the fair value of its liabilities; and Borrower is not left with unreasonably small capital after the transactions contemplated by this Agreement.
5.9 Compliance with Laws and Regulations. Borrower and each Subsidiary have met the minimum funding requirements of ERISA with respect to any employee benefit plans subject to ERISA. No event has occurred resulting from Borrower’s failure to comply with ERISA that is reasonably likely to result in Borrower’s incurring any liability that could reasonably be expected to have a Material Adverse Effect. Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940. Borrower is not engaged principally, or as one of the important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulations T, U, and X of the Board of Governors of the Federal Reserve System). Borrower has complied in all material respects with all the provisions of the Federal Fair Labor Standards Act. Borrower is in compliance with all environmental laws, regulations and ordinances except where the failure to comply is not reasonably likely to have a Material Adverse Effect. Borrower has not violated any statutes, laws, ordinances or rules applicable to it, the violation of which could reasonably be expected to have a Material Adverse Effect. Borrower and each Subsidiary have filed or caused to be filed all tax returns required to be filed, and have paid, or have made adequate provision for the payment of, all taxes reflected therein except those being contested in good faith with adequate reserves under GAAP or where the failure to file such returns or pay such taxes could not reasonably be expected to have a Material Adverse Effect.
5.10 Subsidiaries. Borrower does not own any stock, partnership interest or other equity securities of any Person, except for Permitted Investments.
5.11 Government Consents. Borrower and each Subsidiary have obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all governmental authorities that are necessary for the continued operation of Borrower’s business as currently conducted, except where the failure to do so would not reasonably be expected to cause a Material Adverse Effect.
5.12 Inbound Licenses. Except as disclosed on the Schedule, Borrower is not a party to, nor is bound by, any inbound license or other agreement, the failure, breach, or termination of which could reasonably be expected to cause a Material Adverse Effect, or that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property.
5.13 Full Disclosure. No representation, warranty or other statement made by Borrower in any certificate or written statement furnished to Lender taken together with all such certificates and written
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statements furnished to Lender contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained in such certificates or statements not misleading, it being recognized by Lender that the projections and forecasts provided by Borrower in good faith and based upon reasonable assumptions are not to be viewed as facts and that actual results during the period or periods covered by any such projections and forecasts may differ from the projected or forecasted results.
| 6. | AFFIRMATIVE COVENANTS. |
Borrower covenants that, until payment in full of all outstanding Obligations, and for so long as Lender may have any commitment to make a Credit Extension hereunder, Borrower shall do all of the following:
6.1 Good Standing and Government Compliance. Borrower shall maintain its and each of its Subsidiaries’ organizational existence and good standing in the Borrower State, shall maintain qualification and good standing in each other jurisdiction in which the failure to so qualify could reasonably be expected to have a Material Adverse Effect, and shall furnish to Lender the organizational identification number issued to Borrower by the authorities of the jurisdiction in which Borrower is organized, if applicable. Borrower shall meet, and shall cause each Subsidiary to meet, the minimum funding requirements of ERISA with respect to any employee benefit plans subject to ERISA. Borrower shall comply in all material respects with all applicable Environmental Laws, and maintain all material permits, licenses and approvals required thereunder where the failure to do so could reasonably be expected to have a Material Adverse Effect. Borrower shall comply, and shall cause each Subsidiary to comply, with all statutes, laws, ordinances and government rules and regulations to which it is subject, and shall maintain, and shall cause each of its Subsidiaries to maintain, in force all licenses, approvals and agreements, the loss of which or failure to comply with which would reasonably be expected to have a Material Adverse Effect.
6.2 Financial Statements, Reports, Certificates. Borrower shall deliver to Lender: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet and income statement covering Borrower’s operations during such period, in a form reasonably acceptable to Lender and certified by a Responsible Officer; (ii) as soon as available, but in any event within forty-five (45) days after the end of each calendar quarter, a company prepared consolidated and consolidating balance sheet and income statement covering Borrower’s operations during such period, in a form reasonably acceptable to Lender and certified by a Responsible Officer; (iii) as soon as available, but in any event within one hundred eighty (180) days after the end of Borrower’s fiscal year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (other than for a going concern comment or qualification related solely to Borrower not having sufficient cash or financial resources to support 12 months of operation) or otherwise consented to in writing by Lender on such financial statements of an independent certified public accounting firm reasonably acceptable to Lender; (iv) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 10-K and 10-Q filed with the Securities and Exchange Commission; (v) promptly upon receipt of notice thereof, a 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) or more; (vi) promptly upon receipt, each management letter prepared by Borrower’s independent certified public accounting firm regarding Borrower’s management control systems; and (vii) as soon as available, but in any event not later than thirty (30) days from Borrower’s fiscal year end, Borrower’s financial and business projections and budget for the immediately following year, with evidence of approval thereof by Borrower’s board of directors; and (viii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Lender may reasonably request from time to time.
(a) Within thirty (30) days after the last day of each month, Borrower shall deliver to Lender with the monthly financial statements a Compliance and Collateral Certificate certified as of the last day of the applicable month and signed by a Responsible Officer in substantially the form of Exhibit E hereto.
(b) Immediately upon becoming aware of the occurrence or existence of an Event of Default hereunder, a written statement of a Responsible Officer setting forth details of the Event of Default, and the action which Borrower has taken or proposes to take with respect thereto.
(c) Lender shall have a right from time to time hereafter to audit Borrower’s Accounts and appraise Collateral at Borrower’s expense, provided that such audits will be conducted no more often than every six (6) months unless an Event of Default has occurred and is continuing. The audit cost per annum (absent an Event of Default) shall not exceed $10,000.
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Borrower may deliver to Lender on an electronic basis any certificates, reports or information required pursuant to this Section 6.2, and Lender shall be entitled to rely on the information contained in the electronic files, provided that Lender in good faith believes that the files were delivered by a Responsible Officer. If Borrower delivers this information electronically, it shall also deliver to Lender by U.S. Mail, reputable overnight courier service, hand delivery, facsimile or .pdf file within five (5) Business Days of submission of the unsigned electronic copy the certification of monthly financial statements, and the Compliance and Collateral Certificate, each bearing the physical signature of the Responsible Officer.
6.3 Inventory; Returns. Borrower shall keep all Inventory in good and merchantable condition, free from all material defects except for Inventory for which adequate reserves have been made. Returns and allowances, if any, as between Borrower and its account debtors shall be on the same basis and in accordance with the usual customary practices of Borrower, as they exist on the Closing Date. Borrower shall promptly notify Lender of all returns and recoveries and of all disputes and claims involving more than Two Hundred Thousand Dollars ($200,000).
6.4 Taxes. Borrower shall make, and cause each Subsidiary to make, due and timely payment or deposit of all material federal, state, and local taxes, assessments, or contributions required of it by law, including, but not limited to, those laws concerning income taxes, F.I.C.A., F.U.T.A. and state disability, and will execute and deliver to Lender, on demand, proof satisfactory to Lender indicating that Borrower or a Subsidiary has made such payments or deposits and any appropriate certificates attesting to the payment or deposit thereof; provided that Borrower or a Subsidiary need not make any payment if the amount or validity of such payment is contested in good faith by appropriate proceedings and is reserved against (to the extent required by GAAP) by Borrower.
6.5 Insurance.
(a) Borrower, at its expense, shall keep the Collateral insured against loss or damage by fire, theft, explosion, sprinklers, and all other hazards and risks, and in such amounts, as ordinarily insured against by other owners in similar businesses conducted in the locations where Borrower’s business is conducted on the date hereof. Borrower shall also maintain liability and other insurance in amounts and of a type that are customary to businesses similar to Borrower’s.
(b) All such policies of insurance shall be in such form, with such companies, and in such amounts as reasonably satisfactory to Lender. All policies of property insurance shall contain a lender’s loss payable endorsement, in a form satisfactory to Lender, showing Lender as an additional loss payee, and all liability insurance policies shall show Lender as an additional insured and specify that the insurer must give at least twenty (20) days notice to Lender before canceling its policy for any reason. Upon Lender’s request, Borrower shall deliver to Lender certified copies of the policies of insurance and evidence of all premium payments. If no Event of Default has occurred and is continuing, proceeds payable under any casualty policy will, at Borrower’s option, be payable to Borrower to replace the property subject to the claim, provided that any such replacement property shall be deemed Collateral in which Lender has been granted a first priority security interest. If an Event of Default has occurred and is continuing, all proceeds payable under any such policy shall, at Lender’s option, be payable to Lender to be applied on account of the Obligations.
6.6 Accounts. Borrower shall, and shall cause all of its Subsidiaries to, maintain all of its and their depository, operating accounts and cash management accounts, and its and their primary investment accounts, with banks as identified on the Compliance and Collateral Certificate (subject at all times to control agreements satisfactory to Lender); provided, however, that Borrower shall have until thirty (30) days after the Closing Date to complete the transfer of all account balances maintained at the banks and financial institutions other than Comerica Bank and to close all such accounts, and, so long as no such account is subject to a control agreement in favor of Comerica Bank during such thirty (30) day period, no control agreements will be required by Lender.
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6.7 Financial Covenants. None.
6.8 Registration of Intellectual Property Rights.
(a) Borrower shall register or cause to be registered on an expedited basis (to the extent not already registered) with the United States Patent and Trademark Office or the United States Copyright Office, as the case may be, those registrable intellectual property rights now owned or hereafter developed or acquired by Borrower, to the extent that Borrower, in its reasonable business judgment, deems it appropriate to so protect such intellectual property rights.
(b) Borrower shall promptly give Lender written notice of any applications or registrations of intellectual property rights filed with the United States Patent and Trademark Office and United States Copyright Office, including the date of such filing and the registration or application numbers, if any.
(c) Borrower shall give Lender prompt written notice of the filing of any applications or registrations with the United States Copyright Office, including the title of such intellectual property rights to be registered, as such title will appear on such applications or registrations, and the date such applications or registrations will be filed.
(d) Borrower shall (i) protect, defend and maintain the validity and enforceability of the Trademarks, Patents, Copyrights, and trade secrets, (ii) use commercially reasonable efforts to detect infringements of the Trademarks, Patents and Copyrights and promptly advise Lender in writing of material infringements detected and (iii) not allow any material Trademarks, Patents or Copyrights to be abandoned, forfeited or dedicated to the public without the written consent of Lender, which shall not be unreasonably withheld.
6.9 Consent of Inbound Licensors. Prior to entering into or becoming bound by any material license or other similar agreement (other than commercial off-the-shelf license agreements), Borrower shall provide written notice to Lender.
6.10 Reagent Agreements. From the date hereof and going forward, Reagent Agreements entered into between Borrower and its customers and new deployments of Equipment to existing customers shall require such customer to (i) acknowledge that it has no security interest in the Equipment located at the location at which it has been installed for such customer and (ii) acknowledge that such Equipment shall remain subject to the lien of any lender of Borrower from time to time having a perfected security interest with respect to such Equipment
6.11 Creation/Acquisition of Subsidiaries. Without limiting the generality of any other provision hereof, in the event Borrower or any Subsidiary creates or acquires any Subsidiary, Borrower and such Subsidiary shall promptly notify Lender of the creation or acquisition of such new Subsidiary and take all such action as may be reasonably required by Lender to cause each such Subsidiary to become a co-borrower under this Agreement, or in Lender’s sole discretion, guarantee the Obligations and, in each case, grant a continuing pledge and security interest in and to all of the property and assets of such Subsidiary (substantially as described on Exhibit B hereto), and Borrower (or any intermediate Subsidiary holding the equity interests in such Subsidiary) shall grant and pledge to Lender a perfected security interest in the equity interests of each Subsidiary (whether foreign or domestic).
6.12 Further Assurances. At any time and from time to time Borrower shall execute and deliver such further instruments and take such further action as may reasonably be requested by Lender to effect the purposes of this Agreement.
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| 7. | NEGATIVE COVENANTS. |
Borrower covenants and agrees that, so long as any credit hereunder shall be available and until the outstanding Obligations are paid in full or for so long as Lender may have any commitment to make any Credit Extensions, Borrower will not do any of the following without Lender’s prior written consent:
7.1 Dispositions. Convey, sell, lease, license, transfer or otherwise dispose of (collectively, to “Transfer”), or permit any of its Subsidiaries to Transfer, all or any part of its business or property (other than Permitted Transfers and other than for the sale of equipment by Borrower to its customers in the ordinary course of business), or subject to Section 6.6 of the Agreement, move cash balances, other than Permitted Transfers and except that Borrower may (without consent of Lender unless an Event of Default shall have occurred and be then continuing) license or sublicense Intellectual Property outside of the United States or for uses within the United States not currently served by Borrower, provided in each case that such license or sublicense does not result in a breach by Borrower of Section 7.2 of this Agreement.
7.2 Change in Name, Location, Executive Office, or Executive Management; Change in Business; Change in Fiscal Year; Change in Control. Change its name or the Borrower State or relocate its chief executive office without thirty (30) days prior written notification to Lender; replace its chief executive officer or chief financial officer without written notification to Lender within thirty (30) days of such replacement; engage in any business, or permit any of its Subsidiaries to engage in any business, other than or reasonably related or incidental to the businesses currently engaged in by Borrower; change its fiscal year end; have a Change in Control.
7.3 Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary or into Borrower), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person, or enter into any agreement to do any of the same, except where (i) such transactions do not in the aggregate exceed Two Hundred and Fifty Thousand Dollars ($250,000) during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity.
7.4 Indebtedness. Create, incur, assume, guarantee or be or remain liable with respect to any Indebtedness, or permit any Subsidiary so to do, other than Permitted Indebtedness, or prepay any Indebtedness or take any actions which impose on Borrower an obligation to prepay any Indebtedness, except Indebtedness to Lender.
7.5 Encumbrances. Create, incur, assume or allow any Lien with respect to any of its property, or assign or otherwise convey any right to receive income, including the sale of any Accounts, or permit any of its Subsidiaries so to do, except for Permitted Liens, or covenant to any other Person that Borrower in the future will refrain from creating, incurring, assuming or allowing any Lien with respect to any of Borrower’s property.
7.6 Distributions. Pay any dividends or make any other distribution or payment on account of or in redemption, retirement or purchase of any capital stock, except that Borrower may (i) repurchase the stock of former employees pursuant to stock repurchase agreements as long as an Event of Default does not exist prior to such repurchase or would not exist after giving effect to such repurchase, and (ii) repurchase the stock of former employees pursuant to stock repurchase agreements by the cancellation of indebtedness owed by such former employees to Borrower regardless of whether an Event of Default exists.
7.7 Investments. Directly or indirectly acquire or own, or make any Investment in or to any Person, or permit any of its Subsidiaries so to do, other than Permitted Investments, or suffer or permit any Subsidiary to be a party to, or be bound by, an agreement that restricts such Subsidiary from paying dividends or otherwise distributing property to Borrower. Further, Borrower shall not enter into any license or agreement with any Prohibited Territory or with any Person organized under or doing business in a Prohibited Territory.
7.8 Transactions with Affiliates. Directly or indirectly enter into or permit to exist any material transaction with any Affiliate of Borrower (including the senior executive officers, directors, and partners of such affiliated Person) except for transactions that are in the ordinary course of Borrower’s business, upon fair and reasonable terms that are no less favorable to Borrower than would be obtained in an arm’s length transaction with a non-affiliated Person.
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7.9 Subordinated Debt. Make any payment in respect of any Subordinated Debt, or permit any of its Subsidiaries to make any such payment, except in compliance with the terms of such Subordinated Debt and the terms of the subordination agreement relating to such Subordinated Debt, or amend any provision of any document evidencing such Subordinated Debt, except in compliance with the terms of the subordination agreement relating to such Subordinated Debt, or amend any provision affecting Lender’s rights contained in any documentation relating to the Subordinated Debt without Lender’s prior written consent.
7.10 Inventory and Equipment. Store the Inventory or the Equipment with a bailee, warehouseman, or similar third party unless the third party has been notified of Lender’s security interest and Lender (a) has received an acknowledgment in the form acceptable to Lender from the third party that it is holding or will hold the Inventory or Equipment for Lender’s benefit; or (b) is in possession of the warehouse receipt, where negotiable, covering such Inventory or Equipment. Except for Inventory sold in the ordinary course of business and except for such other locations as Lender may approve in writing, Borrower shall keep the Inventory and Equipment only at the location set forth in Section 10, the current Schedule, and such other locations of which Borrower gives Lender prior written notice.
7.11 No Investment Company; Margin Regulation. Become or be controlled by an “investment company,” within the meaning of the Investment Company Act of 1940, or become principally engaged in, or undertake as one of its important activities, the business of extending credit for the purpose of purchasing or carrying margin stock, or use the proceeds of any Credit Extension for such purpose.
7.12 Gen Probe Prepayment. Make any prepayment consisting of more than ten percent (10%) of Borrower’s current cash on hand in respect of any of the obligations owing pursuant to the Supply Agreement between Gen-Probe Incorporated and Roka Bioscience, Inc. dated May 27, 2011 (the “Gen-Probe Supply Agreement”), at any time when (i) principal and interest payments on Term Loan Advances are outstanding under this Agreement and (ii) each of Paul Thomas and Steven Sobieski are no longer Chief Executive Officer and Chief Financial Officer of Borrower, respectively (“Target Officers”). For the avoidance of doubt, the foregoing restriction shall not be applicable if (i) one of the Target Officers maintains his position as Chief Executive Officer or Chief Financial Officer of Borrower, as applicable, (ii) Borrower has consummated its initial public offering or (iii) no principal and interest payments on Term Loan Advances are outstanding under this Agreement.
| 8. | EVENTS OF DEFAULT. |
Any one or more of the following events shall constitute an Event of Default by Borrower under this Agreement:
8.1 Payment Default. If Borrower fails to pay any of the Obligations when due;
8.2 Covenant Default.
(a) If Borrower fails to perform any obligation under Article 6 or violates any of the covenants contained in Article 7 of this Agreement; or
(b) If Borrower fails or neglects to perform or observe any other material term, provision, condition, covenant contained in this Agreement, in any of the Loan Documents, or in any other present or future agreement between Borrower and Lender and as to any default under such other term, provision, condition or covenant that can be cured, has failed to cure such default within twenty (20) days after Borrower receives notice thereof or any officer of Borrower becomes aware thereof; provided, however, that if the default cannot by its nature be cured within the twenty (20) day period or cannot after diligent attempts by Borrower be cured within such twenty (20) day period, and such default is likely to be cured within a reasonable time, then Borrower shall have an additional reasonable period (which shall not in any case exceed thirty (30) days) to attempt to cure such default, so long as Borrower continues to diligently attempt to cure such default, and within such reasonable time period the failure to have cured such default shall not be deemed an Event of Default but no Credit Extensions will be made;
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8.3 Material Adverse Change. If there occurs any circumstance or circumstances that could reasonably be expected to have a Material Adverse Effect.
8.4 Attachment. If any material portion of Borrower’s and/or its Subsidiaries assets is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes into the possession of any trustee, receiver or person acting in a similar capacity and such attachment, seizure, writ or distress warrant or levy has not been removed, discharged or rescinded within fifteen (15) days, or if Borrower and/or its Subsidiaries is enjoined, restrained, or in any way prevented by court order from continuing to conduct all or any material part of its business affairs, or if a judgment or other claim becomes a lien or encumbrance upon any material portion of Borrower’s and/or its Subsidiaries assets, or if a notice of lien, levy, or assessment is filed of record with respect to any of Borrower’s and/or its Subsidiaries assets by the United States Government, or any department, agency, or instrumentality thereof, or by any state, county, municipal, or governmental agency, and the same is not paid within fifteen (15) days after Borrower and/or its Subsidiaries receives notice thereof, provided that none of the foregoing shall constitute an Event of Default where such action or event is stayed or an adequate bond has been posted pending a good faith contest by Borrower and/or its Subsidiaries (provided that no Credit Extensions will be made during such cure period);
8.5 Insolvency. If Borrower and/or its Subsidiaries becomes insolvent, or if an Insolvency Proceeding is commenced by Borrower and/or its Subsidiaries, or if an Insolvency Proceeding is commenced against Borrower and/or its Subsidiaries and is not dismissed or stayed within thirty (30) days (provided that no Credit Extensions will be made prior to the dismissal of such Insolvency Proceeding);
8.6 Other Agreements. If there is a default or other failure to perform in any agreement to which Borrower and/or its Subsidiaries 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 Two Hundred Thousand Dollars ($200,000) or that would reasonably be expected to have a Material Adverse Effect;
8.7 Subordinated Debt. If Borrower and/or its Subsidiaries makes any payment on account of Subordinated Debt, except to the extent the payment is allowed under any subordination agreement entered into with Lender;
8.8 Judgments; Settlements. If one or more (a) judgments, orders, decrees or arbitration awards requiring the Borrower and/or its Subsidiaries to pay an aggregate amount of Two Hundred Thousand Dollars ($200,000) or greater shall be rendered against Borrower and/or its Subsidiaries other than those covered by insurance (less a reasonable deductible) for which the insurer has acknowledged coverage and the same shall not have been vacated or stayed within thirty (30) days thereafter (provided that no Credit Extensions will be made prior to such matter being vacated or stayed); or (b) settlements is agreed upon by Borrower and/or its Subsidiaries for the payment by Borrower and/or its Subsidiaries of an aggregate amount of Two Hundred Thousand Dollars ($200,000) or greater or that could reasonably be expected to have a Material Adverse Effect.
8.9 Misrepresentations. If any material misrepresentation or material misstatement exists now or hereafter in any warranty or representation set forth herein or in any certificate delivered to Lender by any Responsible Officer pursuant to this Agreement or to induce Lender to enter into this Agreement or any other Loan Document.
| 9. | LENDER’S RIGHTS AND REMEDIES. |
9.1 Rights and Remedies. Upon the occurrence and during the continuance of an Event of Default, Lender may, at its election, without notice of its election and without demand, do any one or more of the following, all of which are authorized by Borrower:
(a) Declare all Obligations, whether evidenced by this Agreement, by any of the other Loan Documents, or otherwise, immediately due and payable (provided that upon the occurrence of an Event of Default described in Section 8.5 (insolvency), all Obligations shall become immediately due and payable without any action by Lender);
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(b) [reserved];
(c) Cease advancing money or extending credit to or for the benefit of Borrower under this Agreement or under any other agreement between Borrower and Lender;
(d) Settle or adjust disputes and claims directly with account debtors for amounts, upon terms and in whatever order that Lender reasonably considers advisable;
(e) Make such payments and do such acts as Lender considers necessary or reasonable to protect its security interest in the Collateral. Borrower agrees to assemble the Collateral if Lender so requires, and to make the Collateral available to Lender as Lender may designate. Borrower authorizes Lender to enter the premises where the Collateral is located, to take and maintain possession of the Collateral, or any part of it, and to pay, purchase, contest, or compromise any encumbrance, charge, or lien which in Lender’s determination appears to be prior or superior to its security interest and to pay all expenses incurred in connection therewith. With respect to any of Borrower’s owned premises, Borrower hereby grants Lender a license to enter into possession of such premises and to occupy the same, without charge, in order to exercise any of Lender’s rights or remedies provided herein, at law, in equity, or otherwise;
(f) [reserved];
(g) Ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale, and sell (in the manner provided for herein) the Collateral. Lender is hereby granted a license or other right, solely pursuant to the provisions of this Section 9.1, to use, without charge, Borrower’s labels, patents, copyrights, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any property of a similar nature, as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Lender’s exercise of its rights under this Section 9.1, Borrower’s rights under all licenses and all franchise agreements shall inure to Lender’s benefit;
(h) Sell the Collateral at either a public or private sale, or both, by way of one or more contracts or transactions, for cash or on terms, in such manner and at such places (including Borrower’s premises) as Lender determines is commercially reasonable, and apply any proceeds to the Obligations in whatever manner or order Lender deems appropriate. Lender may sell the Collateral without giving any warranties as to the Collateral. Lender may specifically disclaim any warranties of title or the like. This procedure will not be considered adversely to affect the commercial reasonableness of any sale of the Collateral. If Lender sells any of the Collateral upon credit, Borrower will be credited only with payments actually made by the purchaser, received by Lender, and applied to the indebtedness of the purchaser. If the purchaser fails to pay for the Collateral, Lender may resell the Collateral and Borrower shall be credited with the proceeds of the sale;
(i) Lender may credit bid and purchase at any public sale;
(j) Apply for the appointment of a receiver, trustee, liquidator or conservator of the Collateral, without notice and without regard to the adequacy of the security for the Obligations and without regard to the solvency of Borrower, any guarantor or any other Person liable for any of the Obligations; and
(k) Any deficiency that exists after disposition of the Collateral as provided above will be paid immediately by Borrower.
Lender may comply with any applicable state or federal law requirements in connection with a disposition of the Collateral and compliance will not be considered adversely to affect the commercial reasonableness of any sale of the Collateral.
9.2 Power of Attorney. Effective only upon the occurrence and during the continuance of an Event of Default, Borrower hereby irrevocably appoints Lender (and any of Lender’s designated officers, or employees) as Borrower’s true and lawful attorney to: (a) send requests for verification of Accounts or notify account debtors of Lender’s security interest in the Accounts; (b) endorse Borrower’s name on any checks or other
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forms of payment or security that may come into Lender’s possession; (c) sign Borrower’s name on any invoice or bill of lading relating to any Account, drafts against account debtors, schedules and assignments of Accounts, verifications of Accounts, and notices to account debtors; (d) dispose of any Collateral; (e) make, settle, and adjust all claims under and decisions with respect to Borrower’s policies of insurance; (f) settle and adjust disputes and claims respecting the accounts directly with account debtors, for amounts and upon terms which Lender determines to be reasonable; and (g) file, in its sole discretion, one or more financing or continuation statements and amendments thereto, relative to any of the Collateral without the signature of Borrower where permitted by law; provided Lender may exercise such power of attorney to sign the name of Borrower on any of the documents described in clause (g) above, regardless of whether an Event of Default has occurred. The appointment of Lender as Borrower’s attorney in fact, and each and every one of Lender’s rights and powers, being coupled with an interest, is irrevocable until all of the Obligations have been fully repaid and performed and Lender’s obligation to provide advances hereunder is terminated.
9.3 Accounts Collection. At any time after the occurrence and during the continuation of an Event of Default, Lender may notify any Person owing funds to Borrower of Lender’s security interest in such funds and verify the amount of such Account. Borrower shall collect all amounts owing to Borrower for Lender, receive in trust all payments as Lender’s trustee, and immediately deliver such payments to Lender in their original form as received from the account debtor, with proper endorsements for deposit.
9.4 Lender Expenses. If Borrower fails to pay any amounts or furnish any required proof of payment due to third persons or entities, as required under the terms of this Agreement, then Lender may do any or all of the following after reasonable notice to Borrower: (a) make payment of the same or any part thereof; or (b) obtain and maintain insurance policies of the type discussed in Section 6.5 of this Agreement, and take any action with respect to such policies as Lender deems prudent. Any amounts so paid or deposited by Lender shall constitute Lender Expenses, shall be immediately due and payable, and shall bear interest at the then applicable rate hereinabove provided, and shall be secured by the Collateral. Any payments made by Lender shall not constitute an agreement by Lender to make similar payments in the future or a waiver by Lender of any Event of Default under this Agreement.
9.5 Lender’s Liability for Collateral Lender has no obligation to clean up or otherwise prepare the Collateral for sale. All risk of loss, damage or destruction of the Collateral shall be borne by Borrower.
9.6 No Obligation to Pursue Others Lender has no obligation to attempt to satisfy the Obligations by collecting them from any other person liable for them and Lender may release, modify or waive any collateral provided by any other Person to secure any of the Obligations, all without affecting Lender’s rights against Borrower. Borrower waives any right it may have to require Lender to pursue any other Person for any of the Obligations.
9.7 Remedies Cumulative. Lender’s rights and remedies under this Agreement, the Loan Documents, and all other agreements shall be cumulative. Lender shall have all other rights and remedies not inconsistent herewith as provided under the Code, by law, or in equity. No exercise by Lender of one right or remedy shall be deemed an election, and no waiver by Lender of any Event of Default on Borrower’s part shall be deemed a continuing waiver. No delay by Lender shall constitute a waiver, election, or acquiescence by it. No waiver by Lender shall be effective unless made in a written document signed on behalf of Lender and then shall be effective only in the specific instance and for the specific purpose for which it was given. Borrower expressly agrees that this Section 9.7 may not be waived or modified by Lender by course of performance, conduct, estoppel or otherwise.
9.8 Demand; Protest. Except as otherwise provided in this Agreement, Borrower waives demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment and any other notices relating to the Obligations.
| 10. | NOTICES. |
Unless otherwise provided in this Agreement, all notices or demands by any party relating to this Agreement or any other agreement entered into in connection herewith shall be in writing and (except for financial
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statements and other informational documents which may be sent by first-class mail, postage prepaid) shall be personally delivered or sent by a recognized overnight delivery service, certified mail, postage prepaid, return receipt requested, or by telefacsimile to Borrower or to Lender, as the case may be, at its addresses set forth below:
| If to Borrower: | ROKA BIOSCIENCE, INC. | |
| 20 Independence Blvd., 4th Floor | ||
| Warren, New Jersey 07059 | ||
| Attn: Steven Sobieski, S.V.P. and C.F.O. | ||
| FAX: (908) 604-2008 | ||
| If to Lender: | TriplePoint Capital LLC | |
| 2755 Sand Hill Road, Suite 150 | ||
| Menlo Park, CA 94025 | ||
| Attn: Legal Department | ||
| Attn: Sajal Srivastava, COO | ||
| Fax: (650) 854-1850 | ||
The parties hereto may change the address at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the other.
| 11. | CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER. |
This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of California, without regard to principles of conflicts of law. Each of Borrower and Lender hereby submits to the exclusive jurisdiction of the State and Federal courts located in the State of California. THE UNDERSIGNED ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED UNDER CERTAIN CIRCUMSTANCES. TO THE EXTENT PERMITTED BY LAW, EACH PARTY, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER DOCUMENT, INSTRUMENT OR AGREEMENT BETWEEN THE UNDERSIGNED PARTIES.
| 12. | REFERENCE PROVISION. |
12.1 In the event the Jury Trial Waiver set forth above is not enforceable, the parties elect to proceed under this Judicial Reference Provision.
12.2 With the exception of the items specified in Section 12.3, below, any controversy, dispute or claim (each, a “Claim”) between the parties arising out of or relating to this Agreement or any other document, instrument or agreement between the undersigned parties (collectively in this Section, the “Loan Documents”), will be resolved by a reference proceeding in California in accordance with the provisions of Sections 638 et seq. of the California Code of Civil Procedure (“CCP”), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except as otherwise provided in the Loan Documents, venue for the reference proceeding will be in the Superior Court in the County where the real property involved in the action, if any, is located or in a County where venue is otherwise appropriate under applicable law (the “Court”).
12.3 The matters that shall not be subject to a reference are the following: (i) foreclosure of any security interests in real or personal property, (ii) exercise of self-help remedies (including, without limitation, set-off), (iii) appointment of a receiver and (iv) temporary, provisional or ancillary remedies (including, without limitation, writs of attachment, writs of possession, temporary restraining orders or preliminary injunctions). This Agreement does not limit the right of any party to exercise or oppose any of the rights and remedies described in clauses (i) and (ii) or to seek or oppose from a court of competent jurisdiction any of the items described in clauses (iii) and (iv). The exercise of, or opposition to, any of those items does not waive the right of any party to a reference pursuant to this Agreement.
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12.4 The referee shall be a retired Judge or Justice selected by mutual written agreement of the parties. If the parties do not agree within ten (10) days of a written request to do so by any party, then, upon request of any party, the referee shall be selected by the Presiding Judge of the Court (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and the parties agree that irreparable harm would result if ex parte relief is not granted.
12.5 The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, the referee shall be requested, subject to change in the time periods specified herein for good cause shown, to (i) set the matter for a status and trial-setting conference within fifteen (15) days after the date of selection of the referee, (ii) if practicable, try all issues of law or fact within one hundred twenty (120) days after the date of the conference and (iii) report a statement of decision within twenty (20) days after the matter has been submitted for decision.
12.6 The referee will have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based upon good cause shown, no party shall be entitled to “priority” in conducting discovery, depositions may be taken by either party upon seven (7) days written notice, and all other discovery shall be responded to within fifteen (15) days after service. All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the referee whose decision shall be final and binding.
12.7 Except as expressly set forth in this Agreement, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter will be used at any hearing conducted before the referee, and the referee will be provided a courtesy copy of the transcript. The party making such a request shall have the obligation to arrange for and pay the court reporter. Subject to the referee’s power to award costs to the prevailing party, the parties will equally share the cost of the referee and the court reporter at trial.
12.8 The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a court proceeding, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision at the close of the reference proceeding which disposes of all claims of the parties that are the subject of the reference. Pursuant to CCP § 644, such decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court and any such decision will be final, binding and conclusive. The parties reserve the right to appeal from the final judgment or order or from any appealable decision or order entered by the referee. The parties reserve the right to findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
12.9 If the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted), any dispute between the parties that would otherwise be determined by reference procedure will be resolved and determined by arbitration. The arbitration will be conducted by a retired judge or Justice, in accordance with the California Arbitration Act §1280 through §1294.2 of the CCP as amended from time to time. The limitations with respect to discovery set forth above shall apply to any such arbitration proceeding.
12.10 THE PARTIES RECOGNIZE AND AGREE THAT ALL CONTROVERSIES, DISPUTES AND CLAIMS RESOLVED UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER OWN CHOICE, EACH PARTY KNOWINGLY AND
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VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY CONTROVERSY, DISPUTE OR CLAIM BETWEEN OR AMONG THEM ARISING OUT OF OR IN ANY WAY RELATED TO, THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
| 13. | GENERAL PROVISIONS. |
13.1 Successors and Assigns. This Agreement shall bind and inure to the benefit of the respective successors and permitted assigns of each of the parties and shall bind all persons who become bound as a debtor to this Agreement; provided, however, that neither this Agreement nor any rights hereunder may be assigned by Borrower without Lender’s prior written consent, which consent may be granted or withheld in Lender’s sole discretion. Lender shall have 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, Lender’s obligations, rights and benefits hereunder.
13.2 Indemnification. Borrower shall defend, indemnify and hold harmless Lender and its officers, employees, and agents against: (a) all obligations, demands, claims, and liabilities claimed or asserted by any other party in connection with the transactions contemplated by this Agreement and/or the Loan Documents; and (b) all losses or Lender Expenses in any way suffered, incurred, or paid by Lender, its officers, employees and agents as a result of or in any way arising out of, following, or consequential to transactions between Lender and Borrower whether under this Agreement, or otherwise (including without limitation reasonable attorneys fees and expenses), except for losses caused by Lender’s gross negligence or willful misconduct.
13.3 Time of Essence. Time is of the essence for the performance of all obligations set forth in this Agreement.
13.4 Severability of Provisions. Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.
13.5 Correction of Loan Documents. Lender may correct patent errors and fill in any blanks in this Agreement and the other Loan Documents consistent with the agreement of the parties.
13.6 Amendments in Writing, Integration. All amendments to or terminations of this Agreement or the other Loan Documents must be in writing signed by the parties hereto. All prior agreements, understandings, representations, warranties, and negotiations between the parties hereto with respect to the subject matter of this Agreement and the other Loan Documents, if any, are merged into this Agreement and the Loan Documents.
13.7 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, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement. This Agreement and any related promissory note may be executed and delivered by facsimile or transmitted electronically in either Tagged Image Format Files (“TIFF”) or Portable Document Format (“PDF”) and, upon such delivery, facsimile, TIFF or PDF signature, as applicable, will be deemed to have the same effect as if the original signature had been delivered to the other party.
13.8 Survival. All covenants, representations and warranties made in this Agreement shall continue in full force and effect so long as any Obligations remain outstanding or Lender has any obligation to make any Credit Extension to Borrower. The obligations of Borrower to indemnify Lender with respect to the expenses, damages, losses, costs and liabilities described in Section 13.2 shall survive until all applicable statute of limitations periods with respect to actions that may be brought against Lender have run.
13.9 Confidentiality. In handling any confidential information, Lender and all employees and agents of Lender shall exercise the same degree of care that Lender exercises with respect to its own proprietary information of the same types to maintain the confidentiality of any non-public information thereby received or
-17-
received pursuant to this Agreement except that disclosure of such information may be made (i) to the Subsidiaries or Affiliates of Lender in connection with their present or prospective business relations with Borrower, (ii) to prospective transferees, participants, or purchasers of any interest in the Obligations, (iii) as required by law, regulations, rule or order, subpoena, judicial order or similar order, (iv) as may be required in connection with the examination, audit or similar investigation of Lender, (v) to Lender’s accountants, auditors and regulators, and (vi) as Lender may determine in connection with the enforcement of any remedies hereunder. Confidential information hereunder shall not include information that either: (a) is in the public domain or in the knowledge or possession of Lender when disclosed to Lender, or becomes part of the public domain after disclosure to Lender through no fault of Lender; or (b) is disclosed to Lender by a third party, provided Lender does not have actual knowledge that such third party is prohibited from disclosing such information. Notwithstanding the above, Borrower hereby consents to the use by Lender of Borrower’s company name and logo for advertising, promotional and marketing purposes only. Such use may reference the type of credit facility but will not indicate the amount of the credit facility without Borrower’s prior written consent, which consent may be withheld at Borrower’s discretion.
[Remainder left intentionally blank. Signature page to follow.]
-18-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.
| ROKA BIOSCIENCE, INC. | ||
| By: | /s/ Steven Sobieski | |
| Name: | Steven Sobieski | |
| Title: | SVP and CEO | |
| TRIPLEPOINT CAPITAL LLC | ||
| By: | /s/ Sajal Srivastava | |
| Name: | Sajal Srivastava | |
| Title: | Chief Operating Officer | |
[Signature Page to Loan and Security Agreement]
EXHIBIT A
DEFINITIONS
“Accounts” means all presently existing and hereafter arising accounts, contract rights, payment intangibles and all other forms of obligations owing to Borrower arising out of the sale or lease of goods (including, without limitation, the licensing of software and other technology) or the rendering of services by Borrower and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower and Borrower’s Books relating to any of the foregoing.
“Affiliate” means, with respect to any Person, any Person that owns or controls directly or indirectly such Person, any Person that controls or is controlled by or is under common control with such Person.
“Applicable Margin” means six and one quarter percent (6.25%) if the Extended Interest Term is in effect, or in all other cases, five and three quarter percent (5.75%).
“Borrower State” means Delaware the state under whose laws Borrower is organized.
“Borrower’s Books” means all of Borrower’s books and records including: ledgers; records concerning Borrower’s assets or liabilities, the Collateral, business operations or financial condition; and all computer programs, or tape files, and the equipment, containing such information.
“Business Day” means any day that is not a Saturday, Sunday, or other day on which banks in the State of California are authorized or required to close.
“Change in Control” shall mean any transaction or series of related transactions in which any “person” or “group” (within the meaning of Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of a sufficient number of shares of all classes of stock then outstanding of Borrower ordinarily entitled to vote in the election of directors, empowering such “person” or “group” to elect a majority of the Board of Directors of Borrower, who did not have such power before such transaction. An initial public offering by Borrower of its common stock pursuant to which (i) Borrower’s stock will be listed on NASDAQ or another national stock exchange, and (ii) Borrower obtains gross proceeds in an amount equal to at least Twenty Five Million Dollars ($25,000,000.00) shall not be deemed a Change of Control.
“Chief Executive Office State” means New Jersey where Borrower’s chief executive office is located.
“Closing Date” means the date of this Agreement.
“Code” means the California Uniform Commercial Code as amended or supplemented from time to time.
“Collateral” means the property described on Exhibit B attached hereto and all Negotiable Collateral to the extent not described on Exhibit B; except to the extent any such property (i) is nonassignable by its terms without the consent of the licensor thereof or another party (but only to the extent such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9406 and 9408 of the Code), or (ii) the granting of a security interest therein is contrary to applicable law, provided that upon the cessation of any such restriction or prohibition, such property shall automatically become part of the Collateral.
“Collateral State” means the following states where Collateral is located, which are New Jersey, California and Tennessee. Collateral States shall not include other states in which equipment is on loan or rented to customers.
“Comerica Bank” means Comerica Bank.
“Comerica Loan Agreement” means that certain Loan and Security Agreement dated as of November 21, 2013, by and between Borrower and Comerica Bank.
Exhibit A — Page 1
“Contingent Obligation” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to (i) any indebtedness, lease, dividend, letter of credit or other obligation of another, including, without limitation, any such obligation directly or indirectly guaranteed, endorsed, co-made or discounted or sold with recourse by that Person, or in respect of which that Person is otherwise directly or indirectly liable; (ii) any obligations with respect to undrawn letters of credit, corporate credit cards or merchant services issued for the account of that Person; and (iii) all obligations arising under any interest rate, currency or commodity swap agreement, interest rate cap agreement, interest rate collar agreement, or other agreement or arrangement designed to protect a Person against fluctuation in interest rates, currency exchange rates or commodity prices; provided, however, that the term “Contingent Obligation” shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determined amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith; provided, however, that such amount shall not in any event exceed the maximum amount of the obligations under the guarantee or other support arrangement.
“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.
“Credit Extension” means each Term Loan Advance or any other extension of credit by Lender to or for the benefit of Borrower hereunder.
“Environmental Laws” means all laws, rules, regulations, orders and the like issued by any federal state, local foreign or other governmental or quasi-governmental authority or any agency pertaining to the environment or to any hazardous materials or wastes, toxic substances, flammable, explosive or radioactive materials, asbestos or other similar materials.
“Equipment” means all present and future machinery, equipment, tenant improvements, furniture, fixtures, vehicles, tools, parts and attachments in which Borrower has any interest.
“Equity Milestone” means Borrower has issued and sold additional shares of its preferred stock, since November 19, 2013, for aggregate gross cash proceeds of at least $15,000,000 (excluding amounts received upon conversion or cancellation of indebtedness).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder.
“Event of Default” has the meaning assigned in Article 7.12.
“GAAP” means generally accepted accounting principles, consistently applied, as in effect from time to time in the United States of America.
“Indebtedness” means (a) all indebtedness for borrowed money or the deferred purchase price of property or services, including without limitation reimbursement and other obligations with respect to surety bonds and letters of credit, (b) all obligations evidenced by notes, bonds, debentures or similar instruments, (c) all capital lease obligations, (d) all Contingent Obligations, if any.
“Insolvency Proceeding” means any proceeding commenced by or against any Person or entity under any provision of the United States Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law, including assignments for the benefit of creditors, formal or informal moratoria, compositions, extension generally with its creditors, or proceedings seeking reorganization, arrangement, or other relief.
“Intellectual Property” means any copyrights, patents, trademarks, service marks and applications therefor, now owned or hereafter acquired, or any claims for damages by way of any past, present and future infringement of any of the foregoing.
Exhibit A — Page 2
“Interest Rate” means the Prime Rate plus the Applicable Margin.
“Interim Interest Payment” means, with respect to each Term Loan Advance an amount equal to the per diem interest accrued from the date such Term Loan Advance is made through and including the last day of that month.
“Inventory” means all present and future inventory in which Borrower has any interest.
“Investment” means any beneficial ownership of (including stock, partnership or limited liability company interest or other securities) any Person, or any loan, advance or capital contribution to any Person.
“IRC” means the Internal Revenue Code of 1986, as amended, and the regulations thereunder.
“Lender Expenses” means all reasonable costs or expenses (including reasonable attorneys’ fees and expenses, whether generated in-house or by outside counsel) incurred in connection with the preparation, negotiation, administration, and enforcement of the Loan Documents; reasonable Collateral audit fees; and Lender’s reasonable attorneys’ fees and expenses (whether generated in-house or by outside counsel) incurred in amending, enforcing or defending the Loan Documents (including fees and expenses of appeal), incurred before, during and after an Insolvency Proceeding, whether or not suit is brought.
“Lien” means any mortgage, lien, deed of trust, charge, pledge, security interest or other encumbrance.
“Loan Documents” means, collectively, this Agreement, any note or notes executed by Borrower, and any other document, instrument or agreement entered into in connection with this Agreement, all as amended or extended from time to time.
“Material Adverse Effect” means (i) a material adverse change in Borrower’s prospects, business or financial condition, or (ii) a material impairment in the prospect of repayment of all or any portion of the Obligations or in otherwise performing Borrower’s obligations under the Loan Documents, (iii) a material impairment in the perfection, value or priority of Lender’s security interests in the Collateral.
“Maturity Date” means, with respect to each Term Loan Advance, the earliest of: (a) the last day of the month in which the last monthly installment is due as set forth in Section 2.1; (b) the date of termination of Lender’s obligations to make Term Loan Advances or permit existing Term Loan Advances to remain outstanding, in each case, pursuant to Section 9; and (c) the date of indefeasible prepayment in full by Borrower of a Term Loan Advance.
“Negotiable Collateral” means all of Borrower’s present and future letters of credit of which it is a beneficiary, drafts, instruments (including promissory notes), securities, documents of title, and chattel paper, and Borrower’s Books relating to any of the foregoing.
“Obligations” means all debt, principal, interest, Lender Expenses and other amounts owed to Lender by Borrower pursuant to this Agreement or any other agreement, whether absolute or contingent, due or to become due, now existing or hereafter arising, including any interest that accrues after the commencement of an Insolvency Proceeding and including any debt, liability, or obligation owing from Borrower to others that Lender may have obtained by assignment or otherwise.
“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.
“Periodic Payments” means all installments or similar recurring payments that Borrower may now or hereafter become obligated to pay to Lender pursuant to the terms and provisions of any instrument, or agreement now or hereafter in existence between Borrower and Lender.
“Permitted Indebtedness” means:
| (a) | Indebtedness of Borrower in favor of Lender arising under this Agreement or any other Loan Document; |
Exhibit A — Page 3
| (b) | Indebtedness existing on the Closing Date and disclosed in the Schedule; |
| (c) | Indebtedness not to exceed Two Hundred Thousand Dollars ($200,000) in the aggregate secured by a lien described in clause (c) of the defined term “Permitted Liens,” provided such Indebtedness does not exceed the lesser of the cost or fair market value of the equipment financed with such Indebtedness; |
| (d) | Subordinated Debt; |
| (e) | Indebtedness to trade creditors incurred in the ordinary course of business; |
| (f) | Indebtedness to Comerica Bank in an aggregate amount incurred during the term hereof not to exceed the sum of (i) Five Million Dollars ($5,000,000) in original principal amount plus (ii) without duplication, accrued and unpaid interest, fees and expenses due to Comerica Bank arising under the Comerica Loan Agreement; |
| (g) | Other Indebtedness, of up to Five Million Dollars ($5,000,000) as approved in advance by Lender in its sole discretion, for working capital as needed by the Borrower on commercially reasonable terms, provided by a bank, commercial lender, or other financial institution regularly engaged in the business of lending money (excluding venture capital, investment banking or similar institutions which sometimes engage in lending activities but which are primarily engaged in investments in equity securities), provided that the collateral for any such Indebtedness shall be limited to Accounts and identifiable proceeds of such accounts residing in a lockbox account, subject to an intercreditor, subordination, or similar agreement between Lender and such entity; and |
| (h) | Extensions, refinancings and renewals of any items of Permitted Indebtedness, provided that the principal amount is not increased or the terms modified to impose more burdensome terms upon Borrower or its Subsidiary, as the case may be. |
“Permitted Investment” means:
| (a) | Investments existing on the Closing Date disclosed in the Schedule; |
| (b) | (i) Marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency or any State thereof maturing within one (1) year from the date of acquisition thereof, (ii) commercial paper maturing no more than one (1) year from the date of creation thereof and currently having rating of at least A-2 or P-2 from either Standard & Poor’s Ratings Services or Moody’s Investors Service, Inc., (iii) certificates of deposit maturing no more than one (1) year from the date of investment therein, and (iv) money market accounts; |
| (c) | Repurchases of stock from former employees or directors of Borrower under the terms of applicable repurchase agreements (i) in an aggregate amount not to exceed Two Hundred Thousand Dollars ($200,000) in any fiscal year, provided that no Event of Default has occurred, is continuing or would exist after giving effect to the repurchases, or (ii) in any amount where the consideration for the repurchase is the cancellation of indebtedness owed by such former employees to Borrower regardless of whether an Event of Default exists; |
| (d) | Investments accepted in connection with Permitted Transfers; |
| (e) | Investments of Subsidiaries in or to other Subsidiaries or Borrower and Investments by Borrower in Subsidiaries not to exceed Two Hundred Thousand Dollars ($200,000) in the aggregate in any fiscal year and in the event such investment consists of intercompany loans such loans shall be in the form of a demand note (“Intercompany Note”) evidencing any such intercompany indebtedness in a form and substance reasonably satisfactory to Lender and such Intercompany Note shall be pledged and delivered to Lender as additional Collateral for the Obligations; |
Exhibit A — Page 4
| (f) | Investments not to exceed Two Hundred Thousand Dollars ($200,000) in the aggregate in any fiscal year consisting of (i) travel advances and employee relocation loans and other employee loans and advances in the ordinary course of business, and (ii) loans to employees, officers or directors relating to the purchase of equity securities of Borrower or its Subsidiaries pursuant to employee stock purchase plan agreements approved by Borrower’s Board of Directors; |
| (g) | Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of Borrower’s business; |
| (h) | Investments consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates (including senior executive officers, directors, and partners of such affiliated Person), in the ordinary course of business, provided that this subparagraph (h) shall not apply to Investments of Borrower in any Subsidiary; and |
| (i) | Joint ventures or strategic alliances in the ordinary course of Borrower’s business consisting of the non-exclusive licensing of technology, the development of technology or the providing of technical support, provided that any cash Investments by Borrower do not exceed Two Hundred Thousand Dollars ($200,000) in the aggregate in any fiscal year. |
“Permitted Liens” means the following:
| (a) | Any Liens existing on the Closing Date and disclosed in the Schedule or arising under this Agreement or the other Loan Documents; |
| (b) | Liens for taxes, fees, assessments or other governmental charges or levies, either not delinquent or being contested in good faith by appropriate proceedings and for which Borrower maintains adequate reserves, provided the same have no priority over any of Lender’s security interests; |
| (c) | Liens securing Indebtedness not to exceed Two Hundred Thousand Dollars ($200,000) in the aggregate (i) upon or in any Equipment acquired or held by Borrower or any of its Subsidiaries to secure the purchase price of such Equipment or indebtedness incurred solely for the purpose of financing the acquisition or lease of such Equipment, or (ii) existing on such Equipment at the time of its acquisition, provided that the Lien is confined solely to the property so acquired and improvements thereon, and the proceeds of such Equipment; |
| (d) | Liens incurred in connection with the extension, renewal or refinancing of the indebtedness secured by Liens of the type described in clauses (a) through (c) above, provided that any extension, renewal or replacement Lien shall be limited to the property encumbered by the existing Lien and the principal amount of the indebtedness being extended, renewed or refinanced does not increase; |
| (e) | Deposits in the ordinary course of Borrower’s business under worker’s compensation, unemployment insurance, social security and similar laws securing obligations in an aggregate amount not to exceed Fifty Thousand Dollars ($50,000) on which Borrower is current, provided, none of the same diminish or impair Lender’s rights and remedies respecting the Collateral; |
| (f) | Liens securing Indebtedness to Comerica Bank arising under the Comerica Loan Agreement provided that such security interest remain at all times subject to the Subordination Agreement; |
| (g) | Liens securing Subordinated Debt, so long as such Liens are subordinated to Lender on terms acceptable to Lender (and identified as being such by Borrower and Lender) as specified in the definition of Subordinated Debt; |
| (h) | Liens in favor of other financial institutions arising in connection with Borrower’s deposit accounts held at such institutions to secured standard fees for deposit services charged; |
Exhibit A — Page 5
| (i) | Liens arising under the type of Permitted Indebtedness described in clause (g) of the definition of Permitted Indebtedness; and |
| (j) | Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default under Sections 8.4 (attachment) or 8.8 (judgments/settlements). |
“Permitted Transfer” means the conveyance, sale, lease, transfer or disposition by Borrower or any Subsidiary of:
| (a) | Inventory in the ordinary course of business; |
| (b) | Non-exclusive licenses and similar arrangements for the use of the property of Borrower or its Subsidiaries in the ordinary course of business; |
| (c) | Worn-out or obsolete Equipment; or |
| (d) | Other assets of Borrower or its Subsidiaries that do not in the aggregate exceed Two Hundred Thousand Dollars ($200,000) during any fiscal year. |
“Person” means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated organization, association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or governmental agency.
“Prepayment Fee” means an amount equal to two percent (2%) of the outstanding principal amount of such Term Loan Advance being prepaid, if prepaid prior to the one (1) year anniversary of such Term Loan Advance.
“Prime Rate” means the Prime Rate as published in the Wall Street Journal the day before any Advance is funded; however, in no event shall the Prime Rate be less than 3.25%.
“Prohibited Territory” means any person or country listed by the Office of Foreign Assets Control of the United States Department of Treasury as to which transactions between a United States Person and that territory are prohibited.
“Responsible Officer” means each of the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer and the Controller of Borrower.
“Schedule” means the schedule of exceptions attached hereto and approved by Lender, if any.
“SOS Reports” means the official reports from the Secretaries of State of each Collateral State, Chief Executive Office State and the Borrower State and other applicable federal, state or local government offices identifying all current security interests filed in the Collateral and Liens of record as of the date of such report.
“Subordinated Debt” means any debt incurred by Borrower that is subordinated in writing to the debt owing by Borrower to Lender on terms reasonably acceptable to Lender (and identified as being such by Borrower and Lender).
“Subordination Agreement” means that certain Subordination Agreement dated as of November 21, 2013 between Lender and Comerica Bank.
“Subsidiary” means any corporation, partnership or limited liability company or joint venture in which (i) any general partnership interest or (ii) more than fifty percent (50%) of the stock, limited liability company interest or joint venture of which by the terms thereof ordinary voting power to elect the Board of Directors, managers or trustees of the entity, at the time as of which any determination is being made, is owned by Borrower, either directly or through an Affiliate.
“Term Loan Advance(s)” means a cash advance or cash advances under Tranche A or Tranche B.
Exhibit A — Page 6
“Trademarks” means any trademark and service mark rights, whether registered or not, 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.
“Tranche A” means a commitment amount not to exceed the Tranche A Term Loan Maximum Amount.
“Tranche A Availability End Date” means March 31, 2014.
“Tranche A Term Loan Advance” or “Tranche A Term Loan Advances” means any Term Loan Advance(s) made under Tranche A.
“Tranche A Term Loan Maximum Amount” means Five Million and No/100 Dollars ($5,000,000).
“Tranche B” means a commitment amount not to exceed the Tranche B Term Loan Maximum Amount.
“Tranche B Availability End Date” means either (i) September 30, 2014, or (ii) if Borrower has provided evidence satisfactory to Lender of its completion of the Equity Milestone, December 31, 2014.
“Tranche B Milestone” means Borrower’s achievement of $10,000,000 in cumulative revenue for the period from the Closing Date through any date of determination prior to September 30, 2014.
“Tranche B Term Loan Advance” or “Tranche B Term Loan Advances” means any Term Loan Advance(s) made under Tranche B.
“Tranche B Term Loan Maximum Amount” means Five Million and No/100 Dollars ($5,000,000).
“Warrant” means collectively those certain Warrants to Purchase Stock issued on the Closing Date by Borrower to Lender.
Exhibit A — Page 7
| DEBTOR: | ROKA BIOSCIENCE, INC. | |||
| SECURED PARTY: | TRIPLEPOINT CAPITAL LLC | |||
EXHIBIT B
COLLATERAL DESCRIPTION ATTACHMENT TO LOAN AND SECURITY AGREEMENT
All personal property of Debtor of every kind, whether presently existing or hereafter created or acquired, and wherever located, including, but not limited to: (a) all accounts (including health-care-insurance receivables), chattel paper (including tangible and electronic chattel paper), deposit accounts, documents (including negotiable documents), equipment (including all accessions and additions thereto), financial assets, general intangibles (including payment intangibles and software), goods (including fixtures), instruments (including promissory notes), inventory (including all goods held for sale or lease or to be furnished under a contract of service, and including returns and repossessions), investment property (including securities and securities entitlements), letter of credit rights, money, and all of Debtor’s books and records with respect to any of the foregoing, and the computers and equipment containing said books and records; and (b) any and all cash proceeds and/or noncash proceeds of any of the foregoing, including, without limitation, insurance proceeds, and all supporting obligations and the security therefor or for any right to payment. All terms above have the meanings given to them in the California Uniform Commercial Code, as amended or supplemented from time to time.
Notwithstanding the foregoing, the Collateral shall not include any Intellectual Property; provided, however, that the Collateral shall include all accounts and general intangibles that consist of rights to payment from the sale, licensing or disposition of all or any part of, or the rights in, the Intellectual Property (the “Rights to Payment”). Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically, and effective as of November 21, 2013, include the Intellectual Property to the extent necessary to permit perfection of Secured Party’s security interest in the Rights to Payment; provided, further, other than non-exclusive licenses given in the ordinary course of Debtor’s business, in the event Debtor transfers, sells, assigns, grants a security interest in, hypothecates, permits or suffer to exist any Lien, or otherwise transfer any interest in or encumber any portion of the Intellectual Property, either voluntarily or involuntarily, without Secured Party’s prior written consent, Secured Party’s security interest shall include (and shall be deemed to have a Lien in such assets included from November 21, 2013) all Intellectual Property.
“Intellectual Property” means all of Debtor’s right, title, and interest in and to the following:
Copyrights, Trademarks and Patents;
| (a) | 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; |
| (b) | Any and all design rights which may be available to Debtor now or hereafter existing, created, acquired or held; |
| (c) | Any and all claims for damages by way of past, present and future infringement of any of the rights included above, with the right, but not the obligation, to sue for and collect such damages for said use or infringement of the intellectual property rights identified above; and |
| (d) | All amendments, renewals and extensions of any of the Copyrights, Trademarks or Patents. |
“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.
“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.
“Trademarks” means any trademark and servicemark rights, whether registered or not, applications to register and registrations of the same and like protections, and the entire goodwill of the business of Debtor connected with and symbolized by such trademarks.
Exhibit B
EXHIBIT C
Form of Payment/Advance Form
LOAN ADVANCE/PAYDOWN REQUEST FORM
| TO: | Customer Administration | DATE: |
| TIME: |
| |||||
| FAX #: | (650) 854-1850 | |||||||||
| FROM: | ROKA BIOSCIENCE, INC. | TELEPHONE REQUEST (For Lender Use Only): | ||||
| Borrower’s Name | ||||||
| FROM: |
| The following person is authorized to request the loan payment transfer/loan advance on the designated account and is known to me. | ||||
| Authorized Signer’s Name | ||||||
| FROM: |
|
| ||||
| Authorized Signature (Borrower) | Authorized Requester & Phone # | |||||
| PHONE #: |
|
| ||||
| Received by (Lender) & Phone # | ||||||
| ATTACH WIRE INSTRUCTIONS | ||||||
|
| ||||||
| Authorized Signature (Lender)
| ||||||
|
REQUESTED TRANSACTION TYPE AMOUNT |
REQUESTED DOLLAR | For Lender Use Only | ||||||||
| PRINCIPAL INCREASE* (ADVANCE) | $ | Date Rec’d: | ||||||||
| PRINCIPAL PAYMENT (ONLY) | $ | Time: | ||||||||
| Comp. Status: | YES NO | |||||||||
| OTHER INSTRUCTIONS: | Status Date: | |||||||||
| Time: | ||||||||||
| Approval: | ||||||||||
| All representations and warranties of Borrower stated in the Loan and Security Agreement are true, correct and complete in all material respects as of the date of the telephone request for an advance confirmed by this Borrowing Certificate; provided, however, that those representations and warranties as of the date expressly referring to another date shall be true, correct and complete in all material respects as of such date. |
Exhibit C – Page 1
| * IS THERE A WIRE REQUEST TIED TO THIS LOAN ADVANCE? (PLEASE CIRCLE ONE) YES NO |
| If YES, the Outgoing Wire Transfer Instructions must be completed below. |
|
OUTGOING WIRE TRANSFER INSTRUCTIONS
|
Fed Reference Number
|
Lender Transfer Number
| ||||
| The items marked with an asterisk (*) are required to be completed.
| ||||||
| *Beneficiary Name | ||||||
| *Beneficiary Account Number | ||||||
| *Beneficiary Address | ||||||
| Currency Type | US DOLLARS ONLY | |||||
| *ABA Routing Number (9 Digits) | ||||||
| *Receiving Institution Name | ||||||
| *Receiving Institution Address | ||||||
| *Wire Amount | $ | |||||
Exhibit C – Page 2
EXHIBIT D
Form of Promissory Note
PROMISSORY NOTE
(0821-GC-0 -0 )
| $ ,000,000 | , 201 |
FOR VALUE RECEIVED, the undersigned, ROKA BIOSCIENCE, INC. a Delaware corporation (“Borrower”), hereby promises to pay to the order of TRIPLEPOINT CAPITAL LLC (“Payee”), for its own account as lender ( “Lender”) under the Loan Agreement (as defined below), or its assigns, at the offices of TriplePoint Capital LLC, a Delaware limited liability company, at its address at 2755 Sand Hill Road, Suite 105, Menlo Park, CA 94025, or at such other place as Payee may designate from time to time in writing, in lawful money of the United States of America and in immediately available funds, the principal amount of and NO/100 DOLLARS ($ ,000,000), together with interest thereon from the date set forth above at the rates provided in the Loan Agreement.
Capitalized terms or matters of construction defined or established in the Loan and Security Agreement dated November 21, 2013 among Borrower and Lender (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), shall be applied herein as defined or established therein. This Promissory Note (“Note”) is issued pursuant to the Loan Agreement, is a “Promissory Note” referred to therein, and is entitled to the benefit and security of the Loan Documents provided for therein, to which a reference is hereby made for a statement of all of the terms and conditions under which the Term Loan is made and is to be repaid. All of the terms, covenants and conditions of the Loan Agreement and all other Instruments evidencing or securing the Indebtedness hereunder, including the Loan Documents, are hereby made a part of this Note and are deemed incorporated herein in full. The principal balance of the Term Loan, the rates of interest applicable thereto and each payment made on account of the principal thereof, shall be recorded by Lender on its books and records; provided, that the failure by Lender to make any such recordation shall not affect the obligations of Borrower to make payment when due of any amount owing under the Loan Agreement or this Note in respect of the Term Loan.
The principal amount of the Indebtedness evidenced hereby shall be payable in the amounts and on the dates specified in the Loan Agreement, the terms of which are hereby incorporated herein by reference. Interest on the outstanding principal amount of this Note shall be paid until such principal amount is paid in full at such rates of interest, including any applicable default rate provided for under the Loan Agreement, and at such times, and pursuant to such calculations, as are specified in the Loan Agreement.
Except as otherwise provided in the Loan Agreement, if any payment on this Note becomes due and payable on a day other than a Business Day, the payment shall be due on the previous Business Day.
Upon and after the occurrence of an Event of Default, this Note may, without demand, notice or legal process of any kind, as provided in the Loan Agreement, be declared, and upon such declaration immediately shall become, or upon certain circumstances set forth in the Loan Agreement may become without declaration, due and payable.
Time is of the essence of this Note. To the fullest extent permitted by applicable law, Borrower waives presentment, demand, protest, and notice of nonpayment and protest.
THIS NOTE SHALL BE GOVERNED BY, AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICT OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
IN WITNESS WHEREOF, the undersigned has executed this Promissory Note as of the date first set forth above.
| “Borrower” | ||
| ROKA BIOSCIENCE, INC. | ||
| By: |
| |
| Name: |
| |
| Title: |
| |
EXHIBIT E
COMPLIANCE AND COLLATERAL CERTIFICATE
| Please send all Required Reporting to: | ||
| TriplePoint Capital LLC 2755 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Fax: (650) 854-1850 or | ||
| FROM: ROKA BIOSCIENCE, INC. | Email: ***@*** |
The undersigned authorized Officer of Roka Bioscience, Inc. (“Borrower”), hereby certifies that in accordance with the terms and conditions of the Loan and Security Agreement between Borrower and Lender (the “Agreement”), (i) Borrower is in complete compliance for the period ending with all required covenants, including without limitation the ongoing registration of intellectual property rights in accordance with Section 6.8, except as noted below and (i) all representations and warranties of Borrower stated in the Agreement are true and correct in all material respects as of the date hereof. Attached herewith are the required documents supporting the above certification. The Officer further certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied form one period to the next except as explained in an accompanying letter or footnotes.
| REPORTING COVENANTS | REQUIRED | COMPLIES | ||||||||
| Company Prepared Monthly F/S | Monthly, within 30 days | YES | NO | |||||||
| Compliance and Collateral Certificate | Monthly, within 30 days | YES | NO | |||||||
| Company Prepared Quarterly F/S | Quarterly, within 45 days | |||||||||
| CPA Audited, Unqualified F/S | Annually, within 180 days of FYE | YES | NO | |||||||
| Annual Business Plan | Annually, within 30 days following FYE | YES | NO | |||||||
| Audit | Annual | YES | NO | |||||||
| If Public: | ||||||||||
| 10Q | Quarterly, within 5 days of SEC filing (50 days) | YES | NO | |||||||
| 10K | Annually, within 5 days of SEC filing (95 days) | YES | NO | |||||||
| DESCRIPTION | APPLICABLE | |||||||||
| Legal Action > $200,000 | Notify promptly upon notice | YES | NO | |||||||
| Inventory Disputes > $200,000 | Notify promptly upon notice | YES | NO | |||||||
| Mergers & Acquisitions > $250,000 | Notify promptly upon notice | YES | NO | |||||||
| Cross default with other agreements > $200,000 | Notify promptly upon notice | YES | NO | |||||||
| Judgment > $200,000 | Notify promptly upon notice | YES | NO | |||||||
| OTHER COVENANTS | REQUIRED | ACTUAL | COMPLIES | |||||||
| Permitted Indebtedness for equipment leases | < $200,000 |
| YES | NO | ||||||
| Permitted Investments for stock repurchase | < $200,000 |
| YES | NO | ||||||
| Permitted Investments for subsidiaries | < $200,000 |
| YES | NO | ||||||
| Permitted Investments for employee loans | < $200,000 |
| YES | NO | ||||||
| Permitted Investments for joint ventures | < $200,000 |
| YES | NO | ||||||
| Permitted Liens for equipment leases | < $200,000 |
| YES | NO | ||||||
| Permitted Transfers | < $200,000 |
| YES | NO | ||||||
Please Enter Below Comments Regarding Violations:
Exhibit E – Page 1
COLLATERAL UPDATE
BANK ACCOUNTS
The following is a list of all of Borrower’s and its Subsidiaries’ deposit accounts, other accounts holding investment property and electronic accounts such as “PayPal” or similar accounts:
| Bank Name/Address | Account Holder Name | Account (Type & Number) | ||
COLLATERAL LOCATIONS
The following is a list of all of Borrower’s and its Subsidiaries’ locations of Collateral:
| Address | Type of Location | |||
SUBSIDIARIES AND AFFILIATES
The following is a list of all of Borrower’s Subsidiaries and Affiliates:
| Entity | Your Ownership Interest | |||
INTELLECTUAL PROPERTY
The following is a list of all of Borrower’s and its Subsidiaries’ Intellectual Property (including but not limited to Patents, Trademarks and Copyrights, and all applications and licenses of same):
The Officer further acknowledges that at any time Borrower is not in compliance with all the terms set forth in the Agreement, no credit extensions will be made.
| Very truly yours, | ||
| By: |
| |
| Authorized Signer | ||
| Signature of: |
| |
| Title: |
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Exhibit E – Page 2
SCHEDULE OF EXCEPTIONS
TO LOAN AND SECURITY AGREEMENT
Permitted Indebtedness (Exhibit A)
The Company has an outstanding balance payable to Gen-Probe / Hologic of $4,811,316.00 at September 30, 2013 resulting from the purchase of testing instruments. The amount due is unsecured and is non-interest bearing. The Company is required to make periodic payments to Gen-Probe pursuant to the Supply Agreement between Gen-Probe Incorporated and Roka Bioscience, Inc. dated May 27, 2011 (the “Gen-Probe Supply Agreement”). However, for the avoidance of doubt, per the agreed-upon provisions of the final Term Sheet with respect to this Agreement, such amount due under the Gen-Probe Supply Agreement is not to be considered “debt or sellers notes”.
Permitted Investments (Exhibit A)
None
Permitted Liens (Exhibit A)
None
Prior Names (Section 5.5)
None
Inventory or Equipment Locations (Section 5.5)
Roka Bioscience, Inc.
20 Independence Boulevard, 4th Floor
Warren, NJ 07059
Roka Bioscience, Inc.
10398 Pacific Center Court
San Diego, CA 92121
Tech Trans / Barrett Distribution, Inc.
4836 Hickory Hill Rd.
Memphis, TN 38141
FedEx
5025 Tuggle Rd.
Memphis, TN
In addition to the above locations, the Company has Atlas instruments on loan to customers in various states pursuant to Evaluation Agreements, Rental Agreements and Reagent Rental Agreements. Records of customer address locations are maintained by the Company will be provided upon request.
Litigation (Section 5.6)
None
Inbound Licenses (Section 5.12)
| 1. | License Agreement, by and between the Company and Gen-Probe, dated as of September 10, 2009. |
| 2. | First Amendment to License Agreement, by and between the Company and Gen-Probe, effective as of May 27, 2011. |
| 3. | License Agreement, by and between the Company and Qualigen, Inc., dated as of September 10, 2009. |
| 4. | License Agreement, by and between the Company and PHRI Properties, Inc., dated as of September 10, 2009. |
| 5. | Partial Assignment and Assumption and Consent Agreement, by and between the Company and Abbott Molecular Inc. (previously named Vysis, Inc.), dated as of September 10, 2009. |
| 6. | License Agreement, by and between the Company and Wisconsin Alumni Research Foundation dated September 30, 2011. |
| 7. | License Agreement, by and between the Company and Oracle America, Inc. dated December 31, 2010. |
| 8. | License Agreement, by and between the Company and Texas Tech University System dated August 8, 2013. |
