Master Loan and Security Agreement - Nanogen Inc. and Transamerica Business Credit Corp.
Customer No. 1242 MASTER LOAN AND SECURITY AGREEMENT THIS AGREEMENT dated as of June 14, 1999, is made by Nanogen, Inc. (the "Borrower"), a Delaware corporation having its principal place of business and chief executive office at 10398 Pacific Center Court, San Diego, California, 92121 in favor of Transamerica Business Credit Corporation, a Delaware corporation (the "Lender"), having its principal office at Riverway II, West Office Tower, 9399 West Higgins Road, Rosemont, Illinois 60018. WHEREAS, the Borrower has requested that the Lender make Loans to it from time to time; and WHEREAS, the Lender has agreed to make such Loans on the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the promises and to induce the Lender to extend credit, the Borrower hereby agrees with the Lender as follows: SECTION 1. DEFINITIONS. As used herein, the following terms shall have the following meanings, and shall be equally applicable to both the singular and plural forms of the terms defined: AGREEMENT shall mean this Master Loan and Security Agreement together with all schedules and exhibits hereto, as amended, supplemented, or otherwise modified from time to time. APPLICABLE LAW shall mean the laws of the State of Illinois (or any other jurisdiction whose laws are mandatorily applicable notwithstanding the parties' choice of Illinois law) or the laws of the United States of America, whichever laws allow the greater interest, as such laws now exist or may be changed or amended or come into effect in the future. BUSINESS DAY shall mean any day other than a Saturday, Sunday, or public holiday or the equivalent for banks in New York City. CODE shall have the meaning specified in Section 8(d). COLLATERAL shall have the meaning specified in Section 2. COLLATERAL ACCESS AGREEMENT shall mean any landlord waiver, mortgagee waiver, bailee letter, or similar acknowledgement of any warehouseman or processor in possession, of any Equipment EFFECTIVE DATE shall mean the date on which all of the conditions specified in Section 3.3 shall have been satisfied. EQUIPMENT shall have the meaning specified in Section 2. -1- <PAGE> EVENT OF DEFAULT shall mean any event specified in Section 7. FINANCIAL STATEMENTS shall have the meaning specified in Section 6.1. GAAP shall mean generally accepted accounting principles in the United States of America, as in effect from time to time. LOANS shall mean the loans and financial accommodations made by the Lender to the Borrower in accordance with the terms of this Agreement and the Notes. LOAN DOCUMENTS shall mean, collectively, this Agreement, the Notes, and all other documents, agreements, certificates, instruments, and opinions executed and delivered in connection herewith and therewith as the same may be modified, extended, restated, or supplemented from time to time. MATERIAL ADVERSE CHANGE shall mean, with respect to any Person, a material adverse change in the business, prospects, operations, results of operations, assets, liabilities, or condition (financial or otherwise) of such Person taken as a whole that would have an impact on the Borrower's ability to repay the Obligations. MATERIAL ADVERSE EFFECT shall mean, with respect to any Person, a material adverse effect on the business, prospects, operations, results of operations, assets, liabilities, or condition (financial or otherwise) of such Person taken as a whole that would have an impact on the Borrower's ability to repay the Obligations. NOTE shall mean each Promissory Note made by the Borrower in favor of the Lender, as amended, supplemented, or otherwise modified from time to time. OBLIGATIONS shall mean all indebtedness, obligations, and liabilities of the Borrower under the Notes and under this Agreement, whether on account of principal, interest, indemnities, fees (including, without limitation, attorneys fees, remarketing fees, origination fees, collection fees, and all other professional fees), costs, expenses, taxes, or otherwise. PERMITTED LIENS shall mean such of the following as to which no enforcement, collection, execution, levy, or foreclosure proceeding shall have been commenced: (a) liens for taxes, assessments, and other governmental charges or levies or the claims or demands of landlords, carriers, warehousemen, mechanics, laborers, materialmen, and other like Persons arising by operation of Law in the ordinary course of business for sums which are not yet due and payable, or liens which are being contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves are maintained to the extent required by GAAP; (b) deposits or pledges to secure the payment of worker's compensation, unemployment insurance, or other social security benefits or obligations, public or statutory obligations, surety or appeal bonds, bid or performance bonds, or other obligations of a like nature incurred in the ordinary course of business; (c) licenses, restrictions, or covenants for or on the use of the Equipment which do not materially impair either the use of the Equipment in the operation of the business of the Borrower or the value of the Equipment; and (d) attachment or judgment liens that do not constitute an Event of Default. -2- <PAGE> PERSON shall mean any individual, sole proprietorship, partnership, limited liability partnership, joint venture, trust, unincorporated organization, association, corporation, limited liability company, institution, entity, party, or government (including any division, agency, or department thereof), and the successors, heirs, and assigns of each. SCHEDULE shall mean each Schedule In the form of Schedule A hereto delivered by the Borrower to the Lender from time to time. SOLVENT means, with respect to any Person, that as of the date as to which such personal solvency is measured: (a) it has sufficient capital to conduct its business; and (b) it is able generally to meet its debts as they mature. TAXES shall have the meaning specified in Section 5.5. SECTION 2. CREATION OF SECURITY INTEREST; COLLATERAL. The Borrower hereby assigns and grants to the Lender a continuing general, first priority lien on, and security interest in, all the Borrower's right title, and interest in and to the collateral described in the next sentence (the "Collateral") to secure the payment and performance of all the Obligations. The Collateral consists of all equipment set forth on all the Schedules delivered from time to time under the terms of this Agreement (the "Equipment"), together with all present and future additions, parts, accessories, attachments, substitutions, repairs, improvements, and replacements thereof or thereto, and any and all proceeds thereof, including, without limitation, proceeds of insurance and all manuals, blueprints, knowhow, warranties, and records in connection therewith, all rights against suppliers, warrantors, manufacturers, sellers, or others in connection therewith, and together with all substitutes for any of the foregoing. Notwithstanding anything contained above to the contrary, Lender's security interest in the Collateral shall not include any inventions or knowhow derived by the Borrower or employees, consultants or agents of the Borrower from the use of the equipment, provided such knowhow or inventions do not become a part of the Collateral. SECTION 3. THE CREDIT FACILITY. SECTION 3.1 BORROWINGS. Each Loan shall be in an amount not less than $75,000, and in no event shall the sum of the aggregate Loans made exceed $5,000,000.00. The term of each Loan and the payment amount of each Loan shall be in accordance with each Note executed by Borrower in favor of Lender. Each Loan shall be made up of 100% of the Equipment value approved by Lender in its sole discretion and which Equipment will secure all Loans of Borrower. Notwithstanding anything herein to the contrary, the Lender shall be obligated to make the initial Loan and each other Loan only after the Lender, in its sole discretion, determines that the applicable conditions for borrowing contained in Sections 3.3 and 3.4 are satisfied. The timing and financial scope of Lender's obligation to make Loans hereunder are limited as set forth in a commitment letter executed by Lender and Borrower, dated as of March 5, 1999 and attached hereto as Exhibit A (the "Commitment Letter"). SECTION 3.2 APPLICATION OF PROCEEDS. The Borrower shall not directly or indirectly use any proceeds of the Loans, or cause, assist, suffer, or permit the use of any -3- <PAGE> proceeds of the Loans, for any purpose other than for the purchase, acquisition, installation, or upgrading of Equipment including tenant improvements to the extent permitted in the Commitment Letter and approved by Lender or the reimbursement of the Borrower for its purchase, acquisition, installation, or upgrading of Equipment, including tenant improvements to the extent permitted in the Commitment Letter and approved by Lender. SECTION 3.3 CONDITIONS TO INITIAL LOAN. (a) The obligation of the Lender to make the initial Loan is subject to the Lender's receipt of the following, each dated the date of the initial Loan or as of an earlier date acceptable to the Lender, in form and substance satisfactory to the Lender and its counsel: (i) completed requests for information (Form UCC-11) listing all effective Uniform Commercial Code financing statements naming the Borrower as debtor and all tax lien, judgment, and litigation searches for the Borrower as the Lender shall deem necessary or desirable; (ii) Uniform Commercial Code financing statements (Form UCC-1) duly executed by the Borrower (naming the Lender as secured party and the Borrower as debtor and in form acceptable for filing in all jurisdictions that the Lender deems necessary or desirable to perfect the security interests granted to it hereunder) and, if applicable, termination statements or other releases duly filed in all jurisdictions that the Lender deems necessary or desirable to perfect and protect the priority of the security interests granted to it hereunder in the Equipment related to such initial Loan; (iii) a Note duly executed by the Borrower evidencing the amount of such Loan; (iv) a Collateral Access Agreement duly executed by the lessor or mortgagee, as the case may be, of each premises where the Equipment is located, provided that if such Collateral Access Agreement is obtained prior to the first draw under the loan, then this condition shall be deemed satisfied; (v) certificates of insurance required under Section 5.4 of this Agreement together with loss payee endorsements for all such policies naming the Lender as lender loss payee and as an additional insured; (vi) a certificate of the Secretary or an Assistant Secretary of the Borrower ("Secretary's Certificate") certifying (A) that attached to the Secretary's Certificate is a true, complete, and accurate copy of the resolutions of the Board of Directors of the Borrower (or a unanimous consent of directors in lieu thereof) authorizing the execution, delivery, and performance of this Agreement, the other Loan Documents, and the transactions contemplated hereby and thereby, and that such resolutions have not been amended or modified since the date of such certification and are in full force and effect; (B) the incumbency, names, and true signatures of the officers of the Borrower authorized to sign the Loan Documents to which it is a party; (C) that attached to the Secretary's Certificate is a true and -4- <PAGE> correct copy of the Articles or Certificate of Incorporation of the Company, as amended, which Articles or Certificate of Incorporation have not been further modified, repealed or rescinded and are in full force and effect; (D) that attached to the Secretary's Certificate of the Borrower is a true and correct copy of the Bylaws, as amended, which Bylaws of the Company have not been further modified repealed or rescinded and are in full force and effect; and (E) that attached to the Secretary's Certificate of the Borrower is a valid Certificate of Good Standing issued by the Secretary of the State of the Borrower's state of incorporation; (vii) the opinion of counsel for the Borrower covering such matters incident to the transactions contemplated by this Agreement as the Lender may reasonably require; and (viii) such other agreements and instruments as the Lender deems necessary in its sole and absolute discretion in connection with the transactions contemplated hereby, provided such additional agreements and instruments do not impose any additional financial covenants on Borrower. (b) There shall be no pending or, to the knowledge of the Borrower after due inquiry, threatened litigation in writing, proceeding, inquiry, or other action (i) seeking an injunction or other restraining order, damages, or other relief with respect to the transactions contemplated by this Agreement or the other Loan Documents or thereby or (ii) which affects or could affect the business, prospects, operations, assets, liabilities, or condition (financial or otherwise) of the Borrower, except in the case of clause (ii), where such litigation, proceeding, inquiry, or other action could not be expected to have a Material Adverse Effect in the judgment at of the Lender. (c) The Borrower shall have paid all fees and expenses required to be paid by it to the Lender as of such date. (d) The security interests in the Equipment related to the Loans granted in favor of the Lender under this Agreement shall be upon filing UCC-1 Financing Statements be duly perfected and shall constitute first priority liens. SECTION 3.4 CONDITIONS PRECEDENT TO EACH LOAN. The obligation of the Lender to make each Loan is subject to the satisfaction of the following conditions precedent: (a) the Lender shall have received the documents, agreements, and instruments set forth in Section 3.3(a)(i) through (v) applicable to such Loan, each in form and substance satisfactory to the Lender and its counsel and each dated the date of such Loan or as of an earlier date acceptable to the Lender; (b) the Lender shall have received a Schedule of the Equipment related to such Loan, in form and substance satisfactory to the Lender and its counsel, and the security interests in such Equipment related to such Loan granted in favor of the Lender under this Agreement shall have been duly perfected and shall constitute first priority liens; -5- <PAGE> (c) all representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct on and as of the date of such Loan as if then made, other than representations and warranties that expressly relate solely to an earlier date, in which case they shall have been materially true and correct as of such earlier date; (d) no Event of Default or event which with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or would result from the making of the requested Loan as of the date of such request; and (e) the Borrower shall be deemed to have hereby reaffirmed and ratified all security interests, liens, and other encumbrances heretofore granted by the Borrower to the Lender in connection with its Obligations. SECTION 4. THE BORROWER'S REPRESENTATIONS AND WARRANTIES. SECTION 4.1 GOOD STANDING; QUALIFIED TO DO BUSINESS. The Borrower (a) is duly organized, validly existing, and in good standing under the laws of the State of its organization, (b) has the power and authority to own its properties and assets and to transact the businesses in which it is presently, or proposes to be, engaged, and (c) is duly qualified and authorized to do business and is in good standing in every jurisdiction in which the failure to be so qualified could have a Material Adverse Effect on (i) the Borrower, (ii) the Borrower's ability to perform its obligations under the Loan Documents, or (iii) the rights of the Lender hereunder. SECTION 4.2 DUE EXECUTION, ETC. The execution, delivery, and performance by the Borrower of each of the Loan Documents to which it is a party are within the powers of the Borrower, do not contravene the organizational documents, if any, of the Borrower, and do not (a) violate any law or regulation, or any order or decree of any court or governmental authority, (b) conflict with or result in a breach of, or constitute a default under, any material indenture, mortgage, or deed of trust or any material lease, agreement, or other instrument binding on the Borrower or any of its properties, or (c) require the consent authorization by, or approval of or notice to or filing or registration with any governmental authority or other Person. This Agreement is, and each of the other Loan Documents to which the Borrower is or will be a party, when delivered hereunder or thereunder, will be, the legal, valid, and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, or similar laws affecting creditors' rights generally and by general principles of equity. SECTION 4.3 SOLVENCY; NO LIENS. The Borrower is Solvent and will be Solvent upon the completion of all transactions contemplated to occur hereunder (including, without limitation, the Loan to be made on the Effective Date); the security interests granted herein constitute and shall at all times constitute the first and only liens on the Collateral other than Permitted Liens; and the Borrower is, or will be at the time additional Collateral is acquired by it, the absolute owner of the Collateral with full right to pledge, sell, consign, transfer, and create a security interest therein, free and clear of any and all claims or liens in favor of any other Person other than Permitted Liens. -6- <PAGE> SECTION 4.4 NO JUDGMENTS, LITIGATION. Except as shown on the Schedule of Exceptions attached hereto as Exhibit B; as such schedules may be amended from time to time, no judgments are outstanding against the Borrower nor is there now pending or, to the best of the Borrower knowledge after diligent inquiry, threatened in writing any litigation, contested claim, or governmental proceeding by or against the Borrower except judgments and pending or threatened litigation, contested claims, and governmental proceedings which would not, in the aggregate, have a Material Adverse Effect on the Borrower. SECTION 4.5 NO DEFAULTS. The Borrower is not in default or has not received a notice of default under any material contract lease, or commitment to which it is a party or by which it is bound, except as set forth in the Schedule of Exceptions. The Borrower knows of no dispute regarding any contract, lease, or commitment which could have a Material Adverse Effect on the Borrower. SECTION 4.6 COLLATERAL LOCATIONS. On the date hereof, each item of the Collateral is located at the place of business specified in the applicable Schedule, except for relocations to vendors and others as may be permitted, in advance, by the Lender. SECTION 4.7 NO EVENTS OF DEFAULT. No Event of Default has occurred and is continuing nor has any event occurred which, with the giving of notice or the passage of time, or both, would constitute an Event of Default. SECTION 4.8 NO LIMITATION ON LENDER'S RIGHTS. Except as permitted herein, none of the Collateral is subject to contractual obligations that may restrict or inhibit the Lender's rights or abilities to sell or dispose of the Collateral or any part thereof after the occurrence of an Event of Default. SECTION 4.9 PERFECTION AND PRIORITY OF SECURITY INTEREST. This Agreement creates a valid and, upon the Borrower's acquisition of Equipment and completion of all required filings of financing statements, perfected first priority and exclusive security interest in the Collateral, securing the payment of all the Obligations, except Permitted Liens. SECTION 4.10 MODEL AND SERIAL NUMBERS. The Schedules set forth the true and correct serial number of each item of Equipment that constitutes Collateral. SECTION 4.11 ACCURACY AND COMPLETENESS OF INFORMATION. All data, reports, and information heretofore, contemporaneously, or hereafter furnished by or on behalf of the Borrower in writing to the Lender or for purposes of or in connection with this Agreement or any other Loan Documents or any transaction contemplated hereby or thereby, are or will be true and accurate in all material respects on the date as of which such data, reports, and information are dated or certified and not incomplete by omitting to state any material fact necessary to make such data, reports, and information not misleading at such time. There are no facts now known to the Borrower which individually or in the aggregate would reasonably be expected to have a Material Adverse Effect and which have not been specified herein, in the Financial Statements, or in any certificate, opinion, or other written statement previously furnished by the Borrower to the Lender. SECTION 4.12 PRICE OF EQUIPMENT. The cost of each item of Equipment does not exceed the fair and usual price for such type of equipment purchased in like quantity and -7- <PAGE> reflects all discounts, rebates and allowances for the Equipment (including, without limitation, discounts for advertising, prompt payment, testing, or other services) given to the Borrower by the manufacturer, supplier, or any other person. SECTION 5. COVENANTS OF THE BORROWER. SECTION 5.1 EXISTENCE, ETC. The Borrower shall: (a) maintain a yearly accounting cycle, (b) maintain in full force and effect all material licenses, bonds, franchises, leases, trademarks, patents, contracts, and other rights necessary or desirable to the conduct of its business unless the failure to do so could not reasonably be expected to have a Material Adverse Effect on the Borrower, (c) continue in, and limit its operations to, substantially the same general lines of business as those presently conducted by it and (d) materially comply with all applicable laws and regulations of any federal, state, or local governmental authority, except for such laws and regulations the violation of which would not, in the aggregate, have a Material Adverse Effect on the Borrower. SECTION 5.2 NOTICE TO THE LENDER. As soon as possible, and in any event within ten days after the Borrower learns of the following, the Borrower will give written notice to the Lender of (a) any proceeding instituted or threatened to be instituted by or against the Borrower in any federal, state, local, or foreign court or before any commission or other regulatory body (federal, state, local, or foreign) involving a sum, together with the sum involved in all other similar proceedings, in excess of $150,000 in the aggregate, (b) any contract that is terminated or amended and which has had or could reasonably be expected to have a Material Adverse Effect on the Borrower, (c) the occurrence of any Material Adverse Change with respect to the Borrower, and (d) the occurrence of any Event of Default or event or condition which, with notice or lapse of time or both, would constitute an Event of Default, together with a statement of the action which the Borrower has taken or proposes to take with respect thereto. SECTION 5.3 MAINTENANCE OF BOOKS AND RECORDS. The Borrower will maintain books and records pertaining to the Collateral in such detail, form, and scope as the Lender shall require in its commercially reasonable judgment. The Borrower agrees that the Lender or its agents may upon 48 hours prior notice, unless there is an Event of Default in which case no prior notice shall be required enter upon the Borrower's premises during normal business hours, and at any time upon the occurrence and continuance of an Event of Default, for the purpose of inspecting the Collateral and any and all records pertaining thereto. A representative of the Borrower may accompany the Lender during any such inspection. SECTION 5.4 INSURANCE. The Borrower will maintain insurance on the Collateral under such policies of insurance, with such insurance companies, in such amounts, and covering such risks as are at all times satisfactory to the Lender. All such policies shall be made payable to the Lender, in case of loss, under a standard noncontributory "lender" or "secured party" clause and are to contain such other provisions as the Lender may reasonably require to protect the Lender's interests in the Collateral and to any payments to be made under such policies. Certificates of insurance policies are to be delivered to the Lender, premium paid (which may be payable in installments), with the loss payable endorsement in the Lender's favor, and shall provide for not less than thirty days' prior written notice to the Lender, of any cancellation of coverage. The Borrower and Borrower's insurance company shall not alter in any way the insurance required -8- <PAGE> by Lender, as described herein or in the insurance schedule attached hereto, without the written consent of Lender. If the Borrower fails to maintain such insurance, the Lender may arrange: for (at the Borrower's expense and without any responsibility on the Lender's part for) obtaining the insurance. Unless the Lender shall otherwise agree with the Borrower in writing, the Lender shall have the sole right, in the name of the Lender or the Borrower, to the claims under any insurance policies, to receive and give acquittance for any payments that may be payable thereunder, and to execute any endorsements, receipts, releases, assignments, reassignments, or other documents that may be necessary to effect the collection, compromise, or settlement of any claims under any such insurance policies, provided Borrower has not made such claims as requested by Lender and provided Borrower has provided Lender adequate assurances, as determined by Lender in its sole discretion, that the value of Lender's Collateral has not been affected. SECTION 5.5 TAXES. The Borrower will pay, when due, all taxes, assessments, claims, and other charges ("Taxes") lawfully levied or assessed against the Borrower or the Collateral other than Taxes that are being diligently contested in good faith by the Borrower by appropriate proceedings promptly instituted and for which an adequate reserve is being maintained by the Borrower in accordance with GAAP. If any Taxes remain unpaid after the date fixed for the payment thereof, or if any lien shall be claimed therefor, then, without notice to the Borrower, but on the Borrower's behalf, the Lender may pay such Taxes, and the amount thereof shall be included in the Obligations, except to the extent such Taxes are being diligently contested in good faith by the Borrower by appropriate proceedings promptly instituted and for which an adequate reserve is being maintained by the Borrower in accordance with GAAP. SECTION 5.6 BORROWER TO DEFEND COLLATERAL AGAINST CLAIMS; FEES ON COLLATERAL. The Borrower will defend the Collateral against all claims and demands of all Persons at any time claiming the same or any interest therein. The Borrower will not permit any notice creating or otherwise relating to liens on the Collateral or any portion thereof to exist or be on file in any public office other than Permitted Liens. The Borrower shall promptly pay, when payable, all transportation, storage, and warehousing charges and license fees, registration fees, assessments, changes, permit fees, and taxes (municipal, state, or federal) which may now or hereafter be imposed upon the ownership, leasing, renting, possession, sale, or use of the Collateral, other than taxes on or measured by the Lender's income and fees, assessments, charges, and taxes which are being contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves are maintained to the extent required by GAAP. SECTION 5.7 NO CHANGE OF LOCATION, STRUCTURE, OR IDENTITY. The Borrower will not (a) change the location of its chief executive office or establish any place of business other than those specified herein or (b) move or permit the movement of any item of Collateral from the location specified in the applicable Schedule, except that the Borrower may change its chief executive office and keep Collateral at other locations within the United States provided that the Borrower has delivered to the Lender (i) prior written notice thereof and (ii) duly executed financing statements and other agreements and instruments (all in form and substance satisfactory to the Lender) necessary or, in the opinion of the Lender, desirable to perfect and maintain in favor of the Lender a first priority security interest in the Collateral. Notwithstanding anything to the contrary in the immediately preceding sentence, the Borrower may keep any Collateral consisting of motor vehicles or rolling stock at any location in the United States provided -9- <PAGE> that the Lender's security interest in any such Collateral is conspicuously marked on the certificate of title thereof and the Borrower has complied with the provisions of Section 5.9. SECTION 5.8 USE OF COLLATERAL; LICENSES; REPAIR. The Collateral shall be operated by competent qualified personnel in connection with the Borrower's business purposes, for the purpose for which the Collateral was designed and in accordance with applicable operating instructions, laws, and government regulations, and the Borrower shall use every reasonable precaution to prevent loss or damage to the Collateral from fire and other hazards. The Collateral shall not be used or operated for personal, family, or household purposes. The Borrower shall procure and maintain in effect all orders, licenses, certificates, permits, approvals, and consents required by federal, state, or local laws or by any governmental body, agency, or authority in connection with the delivery, installation, use, and operation of the Collateral. The Borrower shall keep all of the Equipment in a satisfactory state of repair and satisfactory operating condition in accordance with industry standards, and will make all repairs and replacements when and where necessary and practical. The Borrower will not waste or destroy the Equipment or any part thereof, and will not be negligent in the care or use thereof. All Equipment shall not be annexed or affixed to or become put of any realty without the Lender's prior written consent except that any tenant improvements, which shall be approved by Lender prior to funding may be annexed or affixed to or become part of the realty. SECTION 5.9 FURTHER ASSURANCES. The Borrower will, promptly upon request by the Lender, execute and deliver or use its best efforts to obtain any document required by the Lender (including, without limitation, warehouseman or processor disclaimers, mortgagee waiver, landlord disclaimers, or subordination agreements with respect to the Obligations and the Collateral), give any notices, execute and file any financing statements, mortgages, or other documents (all in form and substance satisfactory to the Lender), mark any chattel paper, deliver any chattel paper or instruments to the Lender, and take any other actions that are necessary or, in the opinion of the Lender, desirable to perfect or continue the perfection and the first priority of the Lender's security interest in the Collateral, to protect the Collateral against the rights, claims, or interests of any Persons, or to effect the purposes of this Agreement. The Borrower hereby authorizes the Lender, as Lender shall deem necessary in its good faith business judgment as necessary to protect its security interest hereunder, to file one or more financing or continuation statements, and amendments thereto, relating to all or any part of the Collateral without the signature of the Borrow or where permitted by law. A carbon, photographic, or other reproduction of this Agreement or any financing statement covering the Collateral or any part thereof shall be sufficient as a financing statement where permitted by law. To the extent required under this Agreement, the Borrower will pay all costs incurred in connection with any of the foregoing. SECTION 5.10 NO DISPOSITION OF COLLATERAL. The Borrower will not in any way hypothecate or create or permit to exist any lien, security interest, charge, or encumbrance on or other interest in any of the Collateral, except for the lien and security interest granted hereby and Permitted Liens which are junior to the lien and security interest of the Lender, and the Borrower will not sell, transfer, assign, pledge, collaterally assign, exchange, or otherwise dispose of any of the Collateral, except Borrower may dispose of the Collateral provided (1) it is in the ordinary course of business; (2) new collateral of at least equal value approved by Lender shall be substituted for the collateral disposed of by Borrower ("Substituted Collateral"); and (3) that Borrower executes any and all documents and, instruments necessary to insure that Lender has a -10- <PAGE> perfected first security interest in the Substituted Collateral. In the event the Collateral, or any part thereof, is sold, transferred assigned, exchanged, or otherwise disposed of in violation of these provisions, the security interest of the Lender shall continue in such Collateral or part thereof notwithstanding such sale, transfer, assignment, exchange, or other disposition, and the Borrower will hold the proceeds thereof in a separate account for the benefit of the Lender. Following such a sale, the Borrower will transfer such proceeds to the Lender in kind. SECTION 5.11 NO LIMITATION ON LENDER'S RIGHTS. The Borrower will not enter into any contractual obligations which may restrict or inhibit the Lender's rights or ability to sell or otherwise dispose of the Collateral or any part thereof. SECTION 5.12 PROTECTION OF COLLATERAL. Upon notice to the Borrower (provided that if an Event of Default has occurred and is continuing the Lender need not give any notice), the Lender shall have the right at any time to make any payments and do any other acts the Lender may deem necessary to protect its security interests in the Collateral, including, without limitation, the rights to satisfy, purchase, contest, or compromise any encumbrance, charge, or lien which, in the reasonable judgment of the Lender, appears to be prior to or superior to the security interests granted hereunder, and appear in, and defend any action or proceeding purporting to affect its security interests in, or the value of, any of the Collateral. The Borrower hereby agrees to reimburse the Lender for all payments made and expenses incurred under this Agreement including fees, expenses, and disbursements of attorneys and paralegals (including the allocated costs of in-house counsel) acting for the Lender, including any of the foregoing payments under, or acts taken to protect its security interests in, any of the Collateral, which amounts shall be secured under this Agreement, and agrees it shall be bound by any payment made or act taken by the Lender hereunder absent the Lender's gross negligence or willful misconduct. The Lender shall have no obligation to make any of the foregoing payments or perform any of the foregoing acts. SECTION 5.13 DELIVERY OF ITEMS. The Borrower will (a) promptly (but in no event later than three Business Days) after its receipt thereof, deliver to the Lender any documents or certificates of title issued with respect to any property included in the Collateral, and any promissory notes, letters of credit or instruments related to or otherwise in connection with any property included in the Collateral, which in any such case come into the possession of the Borrower, or shall cause the issuer thereof to deliver any of the same directly to the Lender, in each case with any necessary endorsements in favor of the Lender and (b) deliver to the Lender by facsimile as soon as available copies of any and all press releases and other similar communications issued by the Borrower. SECTION 5.14 SOLVENCY. The Borrower shall be and remain Solvent at all times. SECTION 5.15 FUNDAMENTAL CHANGES. The Borrower shall not (a) amend or modify its name, unless the Borrower delivers to the Lender thirty days prior to any such proposed amendment or modification written notice of such amendment or modification and within ten days before such amendment or modification delivers executed Uniform Commercial Code financing statements (in form and substance satisfactory to the Lender) or (b) merge or consolidate with any other entity or make any material change in its capital structure (excluding issuance of new securities for new proceeds), in each case without the Lender's prior written consent which -11- <PAGE> shall not be unreasonably withheld or delayed or (c) permit a change, which change results from, a single transaction or series of related transactions, but specifically excluding (1) sales in the public market over a period of more than 20 days and (2) sale of newly issued securities to investors, in more than 45% of the ownership of any equity interests of the Borrower on the date hereof or more than 45% of such interests become subject to any contractual, judicial, or statutory lien, charge, security interest or encumbrance. In the event that Lender declines to consent to any transaction described in (b) or (c) of this Section 5.15 or an Event of Default has occurred pursuant to Section 7 (g), and Borrower proceeds with such transaction, Borrower shall within five (5) Business Days from consummation of the transaction, prepay the Notes by paying an amount equal to the present value of the remaining payments (principal and interest) due thereunder discounted at 8% simple interest per annum, together with all interest fees and other amounts payable on the amount so prepaid or in connection therewith to the date of such prepayment. For purposes of Section 7 below, Borrower shall only be deemed to have failed to observe its Obligations and been in default under this Section 5.15 if Borrower fails to make such prepayment within the five (5) Business Day period set forth above. SECTION 5.16 ADDITIONAL REQUIREMENTS. The Borrower shall take all such further actions and execute all such further documents and instruments as the Lender may reasonably request to protects its rights under this Agreement. SECTION 6. FINANCIAL STATEMENTS. Until the payment and satisfaction in full of all Obligations, the Borrower shall deliver to the Lender the following financial information: SECTION 6.1 ANNUAL FINANCIAL STATEMENTS. As soon as available, but not later than 120 days after the end of each fiscal year of the Borrower and its consolidated subsidiaries, the consolidated balance sheet, income statement, and statements of cash flows and shareholders equity for the Borrower and its consolidated subsidiaries (the "Financial Statements") for such year, audited by independent certified public accountants; and SECTION 6.2 QUARTERLY FINANCIAL STATEMENTS. As soon as available, but not later than 60 days after the end of each of the first three fiscal quarters in any fiscal year of the Borrower and its consolidated subsidiaries, the Financial Statements for such fiscal quarter, together with a certification duly executed by a responsible officer of the Borrower that such Financial Statements have been prepared in accordance with GAAP and are fairly stated in all material respects (subject to normal year-end audit adjustments). SECTION 7. EVENTS OF DEFAULT. The occurrence of any of the following events shall constitute an Event of Default hereunder: (a) the Borrower shall fail to pay within two days of notice of nonpayment any amount required to be paid by the Borrower under or in connection with any Note and this Agreement, (b) any material representation or warranty made or deemed made by the Borrower under or in connection with any Loan Document or any Financial Statement shall prove to have been false or incorrect in any material respect when made; -12- <PAGE> (c) the Borrower shall fail to perform or observe (i) any of the terms, covenants or agreements contained in Sections 5.4, 5.7, 5.10, 5.14, or 5.15 hereof or (ii) any other term, covenant, or agreement contained in any Loan Document (other than the other Events of Default specified in this Section 7) and such failure remains unremedied for the earlier of fifteen days from (A) the date on which the Lender has given the Borrower written notice of such failure or (B) the date on which the Borrower knew of such failure; (d) dissolution, liquidation, winding up, or cessation of the Borrower's business, failure of the Borrower generally to pay its debts in accordance with Borrower's customary practice, admission in writing by the Borrower of its inability generally to pay its debts as they mature, or calling of a meeting of the Borrower's creditors for purposes of compromising any of the Borrower's debts; (e) the commencement by or against the Borrower of any bankruptcy, insolvency, arrangement, reorganization, receivership, or similar proceedings under any federal or state law and, in the case of any such involuntary proceeding, such proceeding remains undismissed or unstayed for sixty days following the commencement thereof, or any action by the Borrower is taken authorizing any such proceedings; (f) an assignment for the benefit of creditors is made by the Borrower, whether voluntary or involuntary, the appointment of a trustee, custodian, receiver, or similar official for the Borrower or for any substantial property of the Borrower, or any action by the Borrower authorizing any such proceeding; (g) the Borrower shall default in (i) the payment of principal or interest on any indebtedness in excess of $200,000 (other than the Obligations) beyond the period of grace, if any, provided in the instrument or agreement under which such indebtedness was created; or (ii) the observance or performance of any other agreement or condition relating to any such indebtedness or contained in any instrument or agreement relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such indebtedness to cause, with the giving of notice if required, such indebtedness to become due prior to its stated maturity and such default affects Borrower's ability to repay the Obligations to Lender as determined by Lender in its reasonable business judgment; or. (iii) any loan or other agreement under which the Borrower has received financing from Transamerica Corporation or any of its affiliates and provided Borrower does not cure such default described in this Paragraph 7 (g) as provided in Section 5.15; (h) the Borrower suffers or sustains a Material Adverse Change; (i) any tax lien, other than a Permitted Lien, is filed of record against the Borrower and is not bonded or discharged within five Business Days; (j) any judgment which has had or could reasonably be expected to have a Material Adverse Effect on the Borrower and such judgment shall not be stayed, vacated, bonded, or discharged within sixty days; (k) any material covenant, agreement or obligation, as determined in the sole discretion of the Lender, made by the Borrower and contained in or evidenced by any of the Loan -13- <PAGE> Documents shall cease to be enforceable, or shall be determined to be unenforceable, in accordance with its terms; the Borrower shall deny or disaffirm the Obligations under any of the Loan Documents or any liens granted in connection therewith; or any liens granted on any of the Collateral in favor of the Lender shall be determined to be void, voidable, or invalid, or shall not be given the priority contemplated by this Agreement, provided any such instance materially affects Lender's security interest or ability to be repaid; or SECTION 8. REMEDIES. If any Event of Default shall have occurred and be continuing: (a) The Lender may, without prejudice to any of its other rights under any Loan Document or Applicable Law, declare all Obligations to be immediately due and payable (except with respect to any Event of Default set forth in Section 7(f) hereof, in which case all Obligations shall automatically become immediately due and payable without necessity of any declaration) without presentment, representation, demand of payment or protest, which are hereby expressly waived. (b) The Lender after the fifth day following an Event of Default which has not been cured as provided above in this Section may take possession of the Collateral and, for that purpose may enter, with the aid and assistance of any person or persons, any premises where the Collateral or any part hereof is, or may be placed, and remove the same. (c) The obligation of the Lender, if any, to make additional Loans or financial accommodations of any kind to the Borrower shall immediately terminate. (d) The Lender may exercise in respect of the Collateral, in addition to other rights and remedies provided for herein (or in any Loan Document) or otherwise available to it, all the rights and remedies of a secured party under the applicable Uniform Commercial Code (the "Code") whether or not the Code applies to the affected Collateral and also may (i) require the Borrower to, and the Borrower hereby agrees that it will at its expense and upon request of the Lender forthwith, assemble all or part of the Collateral as directed by the Lender and make it available to the Lender at a place to be designated by the Lender that is reasonably convenient to both parties and (ii) without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any of the Lender's offices or elsewhere, for cash, on credit, or for future delivery, and upon such other terms as the Lender may deem commercially reasonable. The Borrower agrees that, to the extent notice of sale shall be required by law, at least ten days notice to the Borrower of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Lender shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Lender may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. (e) All cash proceeds received by the Lender in respect of any sale of, collection from, or other realization upon all or any part of the Collateral may, in the discretion of the Lender, be held by the Lender as collateral for, or then or at any time thereafter applied in whole or in part by the Lender against all or any part of the Obligations in such order as the Lender shall elect. Any -14- <PAGE> surplus of such cash or cash proceeds held by the Lender and remaining after the full, and final payment of all the Obligations shall be paid over to the Borrower or to such other Person to which the Lender may be required under applicable law, or directed by a court of competent jurisdiction, to make payment of such Surplus. SECTION 9. MISCELLANEOUS PROVISIONS. SECTION 9.1 NOTICES. Except as otherwise provided herein, all notices, approvals, consents, correspondence, or other communications required or desired to be given hereunder shall be given in writing and shall be delivered by overnight courier, hand delivery, or certified or registered mail postage prepaid, if to the Lender, then to Transamerica Technology Finance Division, 76 Batterson Park Road, Farmington, Connecticut 06032, Attention: Assistant Vice President Lease Administration, with a copy to the Lender at Riverway II, West Office Tower, 9399 West Higgins Road, Rosemont, Illinois 60018, Attention: Legal Department, and if to the Borrower, then to Nanogen, Inc., 10398 Pacific Center Court, San Diego, California 92121, Attention: Chief Financial Officer and General Counsel and a copy to Pillsbury Madison & Sutro LLP, 11975 El Camino Real, Suite 200, San Diego, CA 92130-2593, Attention: Eric A. Kremer, Esq. or such other address as shall be designated by the Borrower or the Lender to the other party in accordance herewith. All such notices and correspondence shall be effective when received. SECTION 9.2 HEADINGS. The headings in the Agreement are for purposes of reference only and shall not affect the meaning or construction of any provision of this Agreement. SECTION 9.3 ASSIGNMENTS. The Borrower shall not have the right to assign any Note or this Agreement or any interest therein unless the Lender shall have given the Borrower prior written consent and the Borrower and its assignee shall have delivered assignment documentation in form and substance satisfactory to the Lender in its sole discretion. The Lender may assign its rights and delegate its obligations under any Note or this Agreement. SECTION 9.4 AMENDMENTS, WAIVERS, AND CONSENTS. Any amendment or waiver of any provision of this Agreement and any consent to any departure by the Borrower from any provision of this Agreement shall be effective only by a writing signed by the Lender and shall bind and benefit the Borrower and the Lender and their respective successors and assigns, subject, in the case of the Borrower, to the first sentence of Section 9.3. Any amendment of any provision of this Agreement shall be effective only be a writing signed by; the Lender and Borrower. SECTION 9.5 INTERPRETATION OF AGREEMENT. Time is of the essence in each provision of this Agreement of which time is an element. All terms not defined herein or in a Note shall have the meaning set forth in the applicable Code, except where the context otherwise requires. To the extent a term or provision of this Agreement conflicts with any Note, or any term or provision thereof, and is not dealt with herein with more specificity, this Agreement shall control with respect to the subject matter of such term or provision. Acceptance of or acquiescence in a course of performance rendered under this Agreement shall not be relevant in determining the meaning of this Agreement even though the accepting or acquiescing party had knowledge of the nature of the performance and opportunity for objection. -15- <PAGE> SECTION 9.6 CONTINUING SECURITY INTEREST. This Agreement shall, create a continuing security interest in the Collateral and shall (i) remain in full force and effect until the indefeasible payment in full of the Obligations, (ii) be binding upon the Borrower and its successors and assigns and (iii) inure, together with the rights and remedies of the Lender hereunder, to the benefit of the Lender and its successors, transferees, and assigns. SECTION 9.7 REINSTATEMENT. To the extent permitted by law, this Agreement and the rights and powers granted to the Lender hereunder and under the Loan Documents shall continue to be effective or be reinstated if at any time any amount received by the Lender in respect of the Obligations is rescinded or must otherwise be restored or returned by the Lender upon the insolvency, bankruptcy, dissolution, liquidation, or reorganization of the Borrower or upon the appointment of any receiver, intervenor, conservator, trustee, or similar official for the Borrower or any substantial part of its assets, or otherwise, all as though such payments had not been made. SECTION 9.8 SURVIVAL OF PROVISIONS. All representations, warranties, and covenants of the Borrower contained herein shall survive the execution and delivery of this Agreement and shall terminate only upon the full and final payment and performance by the Borrower of the Obligations secured hereby. SECTION 9.9 INDEMNIFICATION. The Borrower agrees to indemnify and hold harmless the Lender and its directors, officers, agents, employees, and counsel from and against any and all costs, expenses, claims, or liability incurred by the Lender or such Person hereunder and under any other Loan Document or in connection herewith or therewith, unless such claim or liability shall be due to willful misconduct or gross negligence on the part of the Lender or such Person. SECTION 9.10 COUNTERPARTS; TELECOPIED SIGNATURES. This Agreement may be executed in counterparts, each of which when so executed and delivered shall be an original, but both of which shall together constitute one and the same instrument. This Agreement and each of the other Loan Documents and any notices given in connection herewith or therewith may be executed and delivered by telecopier or other facsimile transmission all with the same form and effect as if the same was a fully executed and delivered original manual counterpart, SECTION 9.11 SEVERABILITY. In case any provision in or obligation under this Agreement or any Note or any other Loan Document shall be invalid, illegal, or unenforceable in any jurisdiction, the validity, legality, and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. SECTION 9.12 DELAYS; PARTIAL EXERCISE OF REMEDIES. No delay or omission of the Lender to exercise any right or remedy hereunder, whether before or after the happening of any Event of Default, shall impair any such right or shall operate as a waiver thereof or as a waiver of any such Event of Default. No single or partial exercise by the Lender of any right or remedy shall preclude any other or further exercise thereof, or preclude any other right or remedy. -16- <PAGE> SECTION 9.13 ENTIRE AGREEMENT. The Borrower and the Lender agree that this Agreement, the Schedule hereto, and the Commitment Letter are the complete and exclusive statement and agreement between the parties with respect to the subject matter hereof, superseding all proposals and prior agreements, oral or written, and all other communications between the parties with respect to the subject matter hereof. Should there exist any inconsistency between the terms of the Commitment Letter and this Agreement, the terms of this Agreement shall prevail. SECTION 9.14 SETOFF. In addition to and not in limitation of all rights of offset that the Lender may have under Applicable Law, and whether or not the Lender has made any demand or the Obligations of the Borrower have matured, the Lender shall have the right to appropriate and apply to the payment of the Obligations or the Borrower all, deposits and other obligations then or thereafter owing by the Lender to or for the credit of the account of the Borrower. SECTION 9.15 WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. SECTION 9.16 GOVERNING LAW. THE VALIDITY, INTERPRETATION, AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN, ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF. SECTION 9.17 VENUE; SERVICE OF PROCESS. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS SITUATED IN COOK COUNTY, OR OF THE UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF ILLINOIS, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER. HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE BORROWER HEREBY IRREVOCABLY WAIVES, IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING, (a) ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS AND (b) THE RIGHT TO INTERPOSE ANY NONCOMPULSORY SETOFF, COUNTERCLAIM, OR CROSSCLAIM. THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT THE ADDRESS FOR IT SPECIFIED IN SECTION 9.1 HEREOF. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY OTHER -17- <PAGE> JURISDICTION, SUBJECT IN EACH INSTANCE TO THE PROVISIONS HEREOF WITH RESPECT TO RIGHTS AND REMEDIES. SECTION 9.18 The Lender agrees to promptly execute and file such financing statement terminations and/or releases as may be necessary upon satisfaction of the Obligations and as to any Collateral disposed of by the Borrower as described in Section 5.10. IN WITNESS WHEREOF, the undersigned Borrower has caused this Agreement to be duly executed and delivered by its proper and duly authorized officer as of the date first set forth above. NANOGEN, INC. By: /s/ Daniel Burgess ------------------------------------ Name: Daniel Burgess Title: Vice President, Finance Chief Financial Officer Federal Tax ID: 33-0489621 Accepted as of the 14 day of June 1999 By: /s/ Gary P. Moro --------------------------------- Name: Gary P. Moro Title: Vice President -18- <PAGE> March 5, 1999 Mr. Dan Burgess Chief Financial Officer Nanogen, Inc. 10398 Pacific Center Court San Diego, California 92121 Dean Dan: Transamerica Business Credit Corporation - Technology Finance Division ("Lender") is pleased to offer financing for the Equipment described in this letter to Nanogen, Inc. ("Borrower"). This Commitment supersedes all prior correspondence, proposals, and oral or other communications relating to financing arrangements between Borrower and lender, and is subject to the terms and conditions set forth below. The outline of this offer is as follows: LENDER: Transamerica Business Credit Corporation - Technology Finance Division and/or its affiliates, successOrs or assigns. BORROWER: Nanogen, Inc. EQUIPMENT COST: Not to exceed $5,000,000 in the aggregate. EQUIPMENT: Scientific laboratory and test equipment, computer equipment, and furniture. Up to $1,000,000 may be used to finance tenant improvements. All Equipment is subject to approval by Lender prior to funding. COLLATERAL: Lender shall receive a perfected first priority security interest in the Equipment described above, including, without limitation, all additions, improvements, repairs, appurtenances, accessions, substitutions and attachments, and all cash and non-cash proceeds (including insurance proceeds) of the foregoing (the "Collateral"). LOCATION OF COLLATERAL: San Diego, California EXPECTED FUNDING DATE: Through December 31, 1999. LOAN TERM: Each Loan Term will commence upon delivery of the equipment or upon each delivery of items of equipment having an aggregate cost of not less than $75,000, and will continue through 60 months from the first day of the month next following or coincident with commencement of that Loan Term. -1- <PAGE> PAYMENT TERMS: For 60 Month Equipment, Monthly Payments equal to 2.06864% of original principal amount of each Loan will be payable monthly in advance. The first Monthly Payment will be due and payable on or before commencement of each Loan Term. BALLOON PAYMENT: At the end of each Loan Term, the Borrower will be obligated to make one final Balloon Payment equal to 5% of the original principal amount of each Loan, plus any other amounts then due and owing to Lender. ADJUSTMENT TO PAYMENT TERMS: Lender shall adjust the rates set forth above as of the date each Loan Term commences commensurate to the change in the weekly average of the interest rates of five-year U.S. Treasury Securities (as published in the Wall Street Journal) from the week ending December 25, 1998 to the week preceding the commencement of that Loan Term. As of the date each Loan Term commences, the Monthly Payment will be fixed for that entire Loan Term. A schedule of the actual Monthly Payments will be provided by the Lender following commencement of each Loan Term. INTERIM PAYMENT: An Interim Payment will accrue from the date each Loan Term commences until the next following first day of a month (unless the Loan Term commences on the first day of a month). The Interim Payment will be interest only calculated based on the interest rate applicable for the respective note as determined by the interest calculated above. INSURANCE: Prior to any delivery of equipment, the Borrower will furnish a insurance certificate acceptable to the Lender covering the Collateral including primary, all risk (excluding flood and earthquake coverage), physical damage, property damage and bodily injury with appropriate loss payee and additional insured endorsements in favor of the Lender. CONDITIONS PRECEDENT TO LENDING: Each Loan will be subject to the following: 1. No material adverse change in the financial condition, operations or prospects of the Borrower prior to funding. The Lender reserves the right to rescind any unused portion of its commitment in the event of a material adverse change in the financial condition, operation or prospects of the Borrower. -2- <PAGE> 2. Completion of the documentation and final terms of the proposed financing satisfactory to Lender and Lender's counsel. 3. Results of all due diligence, including lien, judgment and tax search and other matters Lender may request shall be satisfactory to Lender and Lender's counsel. 4. Receipt of Lender of duly executed loan documentation in form and substance satisfactory to lender and its counsel. 5. Lender shall receive a valid and perfected first priority lien and security interest in the Equipment and lender shall have received satisfactory evidence that there are no liens on the Equipment except as expressly permitted herein. ADDITIONAL COVENANTS: There will be no actual or threatened conflict with, or material violation of, any regulatory statute, standard or rule relating to the Borrower, its present or future operations, or the Equipment. Borrower will be required to provide quarterly financial information. All information supplied by the Borrower will be correct and will not omit any statement necessary to make the information supplied not be misleading. There will be no material breach of the representations and warranties of the Borrower in the Loan. EXPENSES: All costs and expenses incurred by the Lender in connection with the underwriting and closing the Loans will be paid by the Borrower whether or not any Loans are consummated and funds are advanced by the Lender. Such expenses shall be limited to $5,000 without the consent of the Borrower. LAW: This letter and the proposed Loan are intended to be governed by and construed in accordance with Illinois law without regard to its conflict of law provisions. INDEMNITY: Borrower agrees to indemnify and to hold harmless Lender, and its officers, directors and employees against all claims, damages, liabilities and expenses which may be incurred by or asserted against any such person in connection with or arising out of this letter and the transactions contemplated hereby, other than claims, damages, liability, and expense resulting from such person's gross negligence or willful misconduct. CONFIDENTIALITY: This letter is delivered to you with the understanding that neither it nor its substance shall be disclosed publicly or privately to any third person except those who are in a confidential relationship to -3- <PAGE> you (such as your legal counsel and accountants), or where the same is required by law and then only on the basis that it not be further disclosed, which conditions Borrower and its agents agree to be bound by upon acceptance of this letter. Without limiting the generality of the foregoing, none of such persons shall use or refer to lender or to any affiliate name in any disclosures made in connection with any of the transactions without Lender's prior written consent. Upon completion of the initial takedown by Borrower, the Borrower will no longer be required to obtain Lender's prior written consent to disclose the transaction contemplated hereby. In addition, the Borrower agrees to provide camera ready artwork of typestyles and logos of the Borrower for use in promotional material by the Lender. CONDITIONS OF ACCEPTANCE: This Commitment Letter is intended to be a summary of the most important elements of the agreement to enter into a loan transaction with Borrower, and it is subject to all requirements and conditions contained in Loan documentation proposed by Lender or its counsel in the course of closing the Loans described herein. Not every provision that imposes duties, obligations, burdens, or limitations on Borrower is contained herein, but shall be contained in the final Loan documentation satisfactory to Lender and its counsel. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATED TO THIS LETTER OR THE TRANSACTION DESCRIBED IN THIS LETTER. APPLICATION FEE: The $20,000 Application Fee previously paid will be first applied to the reasonable costs and expenses of the Lender in connection with the transaction (capped at $5,000), and any remainder shall be applied pro rata (based on the amount of each funding to the total amount of this commitment) to the second month's payment due under each Loan. COMMITMENT EXPIRATION: This commitment shall expire on March 10, 1999 unless prior thereto either extended in writing by the Lender or accepted as provided below by the Borrower. -4- <PAGE> Should you have any questions, please call me. If you wish to accept this Commitment, please so indicate by signing and returning the enclosed duplicate copy of this letter to me by March 10, 1999. Yours truly, TRANSAMERICA BUSINESS CREDIT CORP - TECHNOLOGY FINANCE DIVISION By /s/ Robert D. Pomeroy, Jr. ------------------------------ Robert D. Pomeroy, Jr. Executive Vice President Accepted this 9th the day of March, 1999 NANOGEN, INC. By /s/ Daniel Burgess ------------------------------ Name: Daniel Burgess Title Vice President, Finance -5- <PAGE> EXHIBIT B SCHEDULE OF EXCEPTIONS This Schedule of exceptions (this "Schedule") is being delivered to Transamerica Business Credit Corporation, a Delaware corporation ("Lender"), by Nanogen, Inc., a Delaware corporation ("Borrower"), pursuant to the terms of that certain Master Loan and Security Agreement dated June 14, 1999 between Lender and Borrower (the "Agreement") (to which this Schedule is attached as EXHIBIT "B"). Terms with initial letters capitalized and not otherwise defined herein have their respective meanings as set forth in the Agreement. The section numbers in this Schedule correspond to the section numbers in the Agreement; however, any information disclosed herein under any section number shall be deemed to be disclosed and incorporated into any other section number under the Agreement where such disclosure would be appropriate. The disclosure of any matter or document in this Schedule shall not imply any representation, warranty or undertaking not expressly given in the Agreement nor shall such disclosure be taken as extending the scope of any representation, warranty or undertaking set forth in the Agreement. SECTION 4.4 Borrower is in a dispute with its landlord, Killroy Realty Corporation ("Landlord"), involving certain repairs to Borrower's leased premises. Borrower has asserted a claim against Landlord that Landlord is responsible for the cost of certain repairs. No action has been filed by Borrower in this matter, and Borrower and Landlord are currently discussing a settlement of the dispute. However, if a settlement is not reached, this dispute might result in litigation. Borrower has received letters from the owners of patents suggesting that Borrower consider entering into license agreements. Borrower has not received any correspondence from any such owner expressly stating that Borrower is violating any valid patent rights.