[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24b-2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
E XHIBIT 10.37
SECURITY AGREEMENT
1. GRANT OF SECURITY INTEREST. For
valuable consideration, the undersigned CERUS CORPORATION, a
Delaware corporation (“Debtor”), hereby grants and
transfers to WELLS FARGO BANK, NATIONAL ASSOCIATION
(“Bank”) a continuing security interest in all of the
property of Debtor described as follows (collectively, the
“Collateral”):
(a) all accounts, deposit accounts,
contract rights, chattel paper (whether electronic or tangible),
instruments, promissory notes, documents, general intangibles
(excluding Intellectual Property), payment intangibles, commercial
tort claims, securities and all other investment property,
supporting obligations and financial assets, letter of credit
rights, health-care insurance receivables and other rights to
payment of every kind now existing or at any time hereafter
arising, wherever located;
(b) all inventory, goods held for
sale or lease or to be furnished under contracts for service, or
goods so leased or furnished, raw materials, component parts, work
in process and other materials used or consumed in Debtor’s
business, now or at any time hereafter owned or acquired by Debtor,
wherever located, and all products thereof, whether in the
possession of Debtor, any warehousemen, any bailee or any other
Person, or in process of delivery, and whether located at
Debtor’s places of business or elsewhere;
(c) all warehouse receipts, bills of
sale, bills of lading and other documents of every kind (whether or
not negotiable) in which Debtor now has or at any time hereafter
acquires any interest, and all additions and accessions thereto,
whether in the possession or custody of Debtor, any bailee or any
other Person for any purpose;
(d) all money and property
heretofore, now or hereafter delivered to or deposited with Bank or
otherwise coming into the possession, custody or control of Bank
(or any agent or bailee of Bank) in any manner or for any purpose
whatsoever during the existence of this Agreement and whether held
in a general or special account or deposit for safekeeping or
otherwise;
(e) all right, title and interest of
Debtor under licenses, guaranties, warranties, management
agreements, marketing or sales agreements, escrow contracts,
indemnity agreements, insurance policies, service or maintenance
agreements, supporting obligations and other similar contracts of
every kind in which Debtor now has or at any time hereafter shall
have an interest;
(f) all goods, tools, machinery,
furnishings, furniture and other equipment and fixtures of every
kind now existing or hereafter acquired, and all improvements,
replacements, accessions and additions thereto and embedded
software included therein, whether located on any property owned or
leased by Debtor or elsewhere, including without limitation, any of
the foregoing now or at any time hereafter located at or installed
on the land or in the improvements at any of the real property
owned or leased by Debtor, and all such goods after they have been
severed and removed from any of said real property; and
(g) all motor vehicles, trailers,
mobile homes, manufactured homes, boats, other rolling stock and
related equipment of every kind now existing or hereafter acquired
and all additions and accessories thereto, whether located on any
property owned or leased by Debtor or elsewhere;
together with all of Debtor’s
books and records relating to the foregoing, and whatever is
receivable or received when any of the foregoing or the proceeds
thereof are sold, leased, licensed, collected, exchanged or
otherwise disposed of, whether such disposition is voluntary or
involuntary, including without limitation, (i) all rights to
payment, including returned premiums, with respect to any insurance
relating to any of the foregoing, (ii) all rights to payment
with respect to any claim or cause of action affecting or relating
to any of the foregoing, and (iii) all stock rights, rights to
subscribe, stock splits, liquidating dividends, cash dividends,
dividends paid in stock, new securities or other property of any
kind which Debtor is or may hereafter be entitled to receive on
account of any securities pledged hereunder, including without
limitation, stock received by Debtor due to stock splits or
dividends paid in stock or sums paid upon or in respect of any
securities pledged hereunder upon the liquidation or dissolution of
the issuer thereof (collectively,
“Proceeds”).
Notwithstanding the foregoing, the
Collateral shall not include any (i) Intellectual Property;
provided, however, that the Collateral shall include all accounts
and general intangibles that consist of rights to payment and
proceeds from the sale, licensing or disposition of all or any part
of, or rights in, the foregoing (the “Rights to
Payment”), or (ii) capital stock of any Excluded Foreign
Subsidiary in excess of 65% of the voting power of all classes of
stock of such Excluded Foreign Subsidiary entitled to vote.
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 the date hereof, include the
Intellectual Property to the extent necessary to permit perfection
of Bank’s security interest in the Rights to
Payment.
2. OBLIGATIONS SECURED. The
obligations secured hereby are the payment and performance of:
(a) all present and future Indebtedness of Debtor to Bank,
including but not limited to obligations arising under, in
connection with or pursuant to that certain Credit Agreement by and
between Debtor and Bank dated as of June 18, 2008, as amended,
modified, supplemented or restated from time to time (the
“Credit Agreement”); (b) all obligations of Debtor
and rights of Bank under this Agreement; and (c) all present
and future obligations of Debtor to Bank of other kinds. The word
“Indebtedness” is used herein in its most comprehensive
sense and includes any and all advances, debts, obligations and
liabilities of Debtor, or any of them, heretofore, now or hereafter
made, incurred or created, whether voluntary or involuntary and
however arising, whether due or not due, absolute or contingent,
liquidated or unliquidated, determined or undetermined, including
under any swap, derivative, foreign exchange, hedge, deposit,
treasury management or other similar transaction or arrangement,
and whether Debtor may be liable individually or jointly with
others, or whether recovery upon such Indebtedness may be or
hereafter becomes unenforceable.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24b-2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
3. TERMINATION. This Agreement will
terminate upon the performance of all obligations (other than
inchoate indemnity obligations) of Debtor to Bank, including
without limitation, the payment of all Indebtedness of Debtor to
Bank, and the termination of all commitments of Bank to extend
credit to Debtor. Upon termination of this Agreement, Bank shall,
at Debtor’s sole cost and expense, release its Liens in the
Collateral and all rights therein shall revert to
Debtor.
4. OBLIGATIONS OF BANK. Bank has no
obligation to make any loans hereunder. Any money received by Bank
in respect of the Collateral may be deposited, at Bank’s
option, into a non-interest bearing account over which Debtor shall
have no control, and the same shall, for all purposes, be deemed
Collateral hereunder. Bank’s obligation with respect to
Collateral and Proceeds in its possession shall be strictly limited
to the duty to exercise reasonable care in the custody and
preservation of such Collateral and Proceeds, and such duty shall
not include any obligation to ascertain or to initiate any action
with respect to or to inform Debtor of maturity dates, conversion,
call or exchange rights, or offers to purchase the Collateral or
Proceeds, or any similar matters, notwithstanding Bank’s
knowledge of the same. Bank shall have no duty to take any steps
necessary to preserve the rights of Debtor against prior parties,
or to initiate any action to protect against the possibility of a
decline in the market value of the Collateral or Proceeds. Bank
shall not be obligated to take any action with respect to the
Collateral or Proceeds requested by Debtor unless such request is
made in writing and Bank determines, in its good faith discretion,
that the requested action would not unreasonably jeopardize the
value of the Collateral and Proceeds as security for the
Indebtedness.
5. REPRESENTATIONS AND WARRANTIES.
Debtor represents and warrants to Bank that:
(a) Debtor’s legal name is
exactly as set forth on the first page of this Agreement, Debtor is
a corporation registered and validly existing under the laws of the
Sate of Delaware with corporate identification number
2648991 , and all of Debtor’s organizational documents
or agreements delivered to Bank are complete and accurate in every
respect.
(b) Each of Debtor’s and its
Subsidiaries’ chief executive office and other places of
business are as listed on Schedule 5(b) hereto.
Except as shown on Schedule 5(b) , no inventory or
other tangible Collateral is stored with a bailee, warehouseman or
similar party, nor is any inventory consigned to any
Person.
(c) Except as disclosed from time to
time pursuant to Section 6(a)(vi), The Collateral (except
(i) goods in transit and (ii) illumination devices and
related equipment, with an aggregate book value not more than
$1,000,000, placed in the ordinary course of business with
customers or at study sites) is located or domiciled at only the
additional address(es) listed on Schedule 5(c)
hereto.
(d) Schedule 5(d)
hereto sets forth a complete and accurate list of each of
Debtor’s direct and indirect Subsidiaries’ exact legal
names, jurisdiction(s) of incorporation or organization, type of
organization and organizational identification number, if any,
assigned by its jurisdiction of incorporation or organization.
Neither Debtor nor any of its Subsidiaries has been known as or
used any corporate, fictitious or trade names within the last five
(5) years, except those listed on Schedule 5(d)
hereto. Except as set forth on Schedule 5(d) ,
neither Debtor nor any of its Subsidiaries has been the surviving
corporation of a merger or consolidation or acquired all or
substantially all of the assets of any Person.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24b-2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
(e) Schedule 5(e)
hereto sets forth a complete and accurate description of the
ownership and capitalization of Debtor’s direct and indirect
Subsidiaries and the percentage of Subsidiaries’ voting stock
owned by Debtor or another Subsidiary of Debtor.
(f) Debtor and its Subsidiaries have
no deposit, investment, securities or commodities accounts other
than as set forth on Schedule 5(f) hereto.
(g) Debtor is the sole owner, and
has possession or control, of the Collateral, Proceeds and Rights
to Payment.
(h) Debtor has the exclusive right
to grant a security interest and Lien in the Collateral, Proceeds
and Rights to Payment.
(i) all the Collateral, Proceeds,
Rights to Payment and other property of the Debtor are genuine,
free from Liens, adverse claims, setoffs, default, prepayment,
defenses and conditions precedent of any kind or character, except
for Permitted Liens.
(j) all statements contained herein
and, where applicable, in the Collateral are true and complete in
all material respects.
(k) no financing statement covering
any of the Collateral, Proceeds, Rights to Payment or any other
property of Debtor, and naming any secured party other than Bank,
is on file in any public office, except as set forth on
Schedule 5(k) hereto.
(l) where Collateral consists of
Rights to Payment, all Persons appearing to be obligated on the
Collateral and Proceeds have authority and capacity to contract and
are bound as they appear to be, all property subject to chattel
paper has been properly registered and filed in compliance with law
and to perfect the interest of Debtor in such property, and all
such Collateral and Proceeds comply with all applicable laws
concerning form, content and manner of preparation and execution,
including where applicable Federal Reserve Regulation Z and any
State consumer credit laws.
(m) where the Collateral consists of
equipment, Debtor is not in the business of selling goods of the
kind included within such Collateral, and Debtor acknowledges that
no sale or other disposition of any such Collateral, including
without limitation, any such Collateral which Debtor may deem to be
surplus, has been consented to or acquiesced in by Bank, except as
specifically set forth in writing by Bank.
6. COVENANTS OF DEBTOR.
(a) Debtor agrees in general:
(i) to pay Indebtedness secured hereby when due; (ii) to
indemnify Bank against all losses, claims, demands, liabilities and
expenses of every kind caused by property subject hereto, except to
the extent caused by Bank’s gross negligence or wilful
malfeasance; (iii) to permit Bank to exercise its powers;
(iv) to execute and deliver such documents as Bank deems
reasonably necessary to create, perfect and continue the security
interests contemplated hereby; (v) not to change its name, and
as applicable, its chief executive office, its principal residence
or the jurisdiction in which it is organized and/or registered
without giving Bank prior written notice thereof; (vi) not to
change the places where Debtor keeps any Collateral (except
(A) goods in transit and (B) illumination devices and
related equipment, with
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24b-2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
an aggregate book value of not more
than $1,000,000, placed, in the ordinary course of business, with
customers or at study sites) or Debtor’s records concerning
the Collateral, Proceeds and Rights to Payment without giving Bank
prior written notice of the address to which Debtor is moving same;
and (vii) to cooperate with Bank in perfecting all security
interests granted herein and in obtaining such agreements from
third parties as Bank deems reasonably necessary, proper or
convenient in connection with the preservation, perfection or
enforcement of any of its rights hereunder.
(b) Debtor agrees with regard to the
Collateral, Proceeds and Rights to Payment, unless Bank agrees
otherwise in writing: (i) that Bank is authorized to file
financing statements in the name of Debtor to perfect Bank’s
security interest in the Collateral, Proceeds and Rights to
Payment; (ii) where applicable, to insure the Collateral with
Bank named as loss payee, in form, substance and amounts, under
agreements, against risks and liabilities, and with insurance
companies reasonably satisfactory to Bank; (iii) where
applicable, to operate the Collateral in accordance with all
applicable statutes, rules and regulations relating to the use and
control thereof, and not to use any Collateral for any unlawful
purpose or in any way that would void any insurance required to be
carried in connection therewith; (iv) not to remove the
Collateral from Debtor’s premises except in the ordinary
course of Debtor’s business; (v) to pay when due all
license fees, registration fees and other charges in connection
with any Collateral except where a failure to do so could not
reasonably be expected to have a Material Adverse Effect;
(vi) not to permit any Lien on the Collateral, Proceeds and
Rights to Payment, including without limitation, Liens arising from
repairs to or storage of the Collateral, except for Permitted
Liens; (vii) not to sell, hypothecate or dispose of, nor
permit the transfer by operation of law of, any of the Collateral,
Proceeds and Rights to Payment or any interest therein, except
sales of inventory to buyers in the ordinary course of
Debtor&
