exv10w47





Exhibit 10.47




NON-REVOLVING CREDIT AND SECURITY AGREEMENT




THIS NON-REVOLVING CREDIT AND SECURITY AGREEMENT (the “Agreement”), dated as of August
13, 2010, is by and between UNILIFE CROSS FARM LLC, a Pennsylvania limited liability company
(“Borrower”), and UNIVEST NATIONAL BANK AND TRUST CO. (“Bank”);



NOW, THEREFORE, for and in consideration of the premises and of the mutual covenants herein
contained, and to induce Bank to extend credit to Borrower, the parties hereby agree as follows:



1. Definitions. Capitalized terms that are not otherwise defined herein shall have
the meanings set forth in Exhibit 1 hereto.




2. The Loan.



2.1. Non-Revolving Loan. Bank agrees, on the terms and conditions set forth in this
Agreement, to make Advances to Borrower from time to time during the Credit Period in amounts such
that the aggregate principal amount of Advances at any one time outstanding will not exceed the
lesser of (i) the Maximum Loan Amount or (ii) the Borrowing Base (the “Loan”). Within the
foregoing limit, Borrower may borrow and prepay Advances at any time during the Credit Period.
Amounts may not be reborrowed once prepaid.



2.2. Note. The Loan shall be evidenced by a non-revolving promissory note in the
face amount of Seven Million Dollars ($7,000,000.00) of even date herewith (the “Note”) and
shall be payable in accordance with the terms of the Note and this Agreement. Notwithstanding
anything contained herein or in the Note to the contrary, the principal amount outstanding under
the Note shall not exceed an aggregate amount equal to the Maximum Loan Amount.



2.3. Intentionally Omitted.



2.4. Advances.



(a) Each request for an Advance shall be made on telephonic notice or written request from the
Borrower to the Bank no later than 2:00 P.M. (local time in Philadelphia, Pennsylvania) on the date
of the requested Advance. Bank’s acceptance of such a request shall be indicated by its making the
Advance requested. Such an Advance shall be made available to Borrower in immediately available
funds at Bank’s address referred to in Section 10.4.



(b) Notwithstanding the foregoing, Bank may, in its sole and absolute discretion, make or
permit to remain outstanding Advances under the Loan in excess of the original principal amount of
the Note, and all such amounts shall (i) be part of the Indebtedness
evidenced by the Note, (ii) bear interest as provided herein, (iii) be payable upon demand by
Bank, and (iv) be entitled to all rights and security as provided under the Loan Documents.


 












 






2.5. Repayment of Loan.



(a) Borrower shall make monthly payments of all interest accrued on the Loan as provided in
the Note. The Loan shall mature, and the principal amount thereof and all unpaid interest, fees,
expenses and other amounts payable under the Loan Documents shall be due and payable as provided in
the Note.



(b) Bank may make Advances to Borrower (whether or not in excess of the lesser of the
Maximum Loan Amount and the Borrowing Base) and apply such amounts to the payment of interest,
fees, expenses and other amounts to which Bank may be entitled from time to time and Bank is hereby
irrevocably authorized to do so without the consent of Borrower.



(c) Borrower shall make each payment of principal of and interest on the Loan and fees
hereunder not later than 12:00 noon (local time Philadelphia, PA) on the date when due, without set
off, counterclaim or other deduction, in immediately available funds to Bank at its address
referred to in Section 10.4. Whenever any payment of principal of, or interest on, the Loan or of
fees shall be due on a day which is not a Business Day, the date for payment thereof shall be
extended to the next succeeding Business Day. If the date for any payment of principal is extended
by operation of law or otherwise, interest thereon shall be payable for such extended time.



(d) To the extent that the aggregate amount of all Advances exceeds the lesser of the
Maximum Loan Amount or the Borrowing Base, the amount of such excess will be paid immediately to
Bank upon Bank’s demand.



2.6. Overdue Amounts. Any payments not made as and when due shall bear interest from
the date due until paid at the Default Rate, in Bank’s discretion. In addition, in the event any
payments are fifteen (15) days or more beyond their due date, Borrower shall pay Bank a “late
charge” equal to $500.00 or five percent (5.00%) of the amount due on the due date, whichever is
less.



2.7. Calculation of Interest. All interest under the Note or hereunder shall be
calculated on the basis of the Actual/360 Computation, as defined in the Note.



2.8 Sales Tax. Borrower shall notify Bank if any Account includes any sales or other
similar tax and Bank may, but shall not be obligated to, remit any such taxes directly to the
taxing authority and make Advances therefor. In no event shall Bank be liable for any such taxes.



2.9 Fees. Borrower shall remit to Bank a commitment fee of Seventy Thousand Dollars
($70,000.00) on the date hereof.


 


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2.10 Statement of Account. If Bank provides Borrower with a statement of account on a
periodic basis, such statement will be presumed complete and accurate and will be definitive and
binding on Borrower, unless objected to with specificity by Borrower in writing within forty-five
(45) days after receipt.



3. Conditions Precedent to Borrowing. Prior to any Advance, the following conditions
shall have been satisfied, in the sole opinion of Bank and its counsel:



3.1. Conditions Precedent to Initial Advance. In addition to any other requirement
set forth in this Agreement, Bank will not make the initial Advance under the Loan unless and until
the following conditions shall have been satisfied:



(a) Loan Documents. Borrower and each other party to any Loan Document, as
applicable, shall have executed and delivered this Agreement, the Note, and other required Loan
Documents, all in form and substance satisfactory to Bank.



(b) Supporting Documents. Borrower shall cause to be delivered to Bank the following
documents:




(i) A copy of the governing instruments of Borrower and the Surety, and a good
standing certificate of Borrower the Surety, certified by the appropriate official of its
state of incorporation and the State of Pennsylvania, if different;




(ii) Certified resolutions of the board of directors (or other appropriate Persons)
of Borrower and each other Person executing any Loan Documents, including, without
limitation, the Surety, signed by the Secretary or another authorized officer of Borrower or
such other Person, including, without limitation, the Surety, authorizing the execution,
delivery and performance of the Loan Documents;




(iii) Satisfactory evidence of payment of all fees due and reimbursement of all costs
incurred by Bank, and evidence of payment to other parties of all fees or costs which
Borrower is required under this Agreement to pay by the date of the initial Advance;




(iv) UCC searches and other Lien searches showing no existing security interests in
or Liens on the Collateral.



(c) Reserve Account. The Reserve Account, as defined in the Security and Control
Agreement Regarding Reserve Account executed by the Surety in favor of the Bank of even date
herewith, shall have been established and funded in a manner acceptable to the Bank.



(d) Perfection of Liens. UCC-1 financing statements and, if applicable, certificates
of title covering the Collateral shall duly have been recorded or filed in the manner and places
required by law to establish, preserve, protect and perfect the interests and rights
created or intended to be created by the Security Agreement; and all taxes, fees and other
charges in connection with the execution, delivery and filing of the Security Agreement and the
financing statements shall duly have been paid.


 


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(e) Additional Documents. Borrower shall have delivered to Bank all additional
opinions, documents, certificates and other assurances that Bank or its counsel may require.



(f) Payment of Fees. Borrower shall have paid all fees, costs and expenses as
required by the Loan Documents in connection with the Closing.



3.2. Conditions Precedent to Each Advance. The following conditions, in addition to
any other requirements set forth in this Agreement, shall have been met or performed by the Advance
Date with respect to any Advance Request and each Advance Request (whether or not a written Advance
Request is required) shall be deemed to be a representation that all such conditions have been
satisfied:



(a) Advance Request. Borrower shall have delivered to Bank an Advance Request and
other information, as required under Section 2.4(a).



(b) No Default. No Default shall have occurred and be continuing or could occur upon
the making of the Advance in question and, if Borrower is required to deliver a written Advance
Request, Borrower shall have delivered to Bank an officer’s certificate to such effect, which may
be incorporated in the Advance Request.



(c) Correctness of Representations. All representations and warranties made by
Borrower and any Surety herein or otherwise in writing in connection herewith shall be true and
correct in all material respects with the same effect as though the representations and warranties
had been made on and as of the proposed Advance Date, and, if Borrower is required to deliver a
written Advance Request, Borrower shall have delivered to Bank an officer’s certificate to such
effect, which may be incorporated in the Advance Request.



(d) No Adverse Change. There shall have been no change which could have a Material
Adverse Effect on the condition, financial or otherwise, of Borrower, any Subsidiary or any Surety
from such condition as it existed on the date of the most recent financial statements of such
Person delivered prior to date hereof.



(e) Limitations Not Exceeded. The proposed Advance shall not cause the outstanding
principal balance of the Loan to exceed the lesser of the Maximum Loan Amount or the Borrowing
Base.



(f) No Termination. Bank shall not have received notice from any Surety or any
surety terminating or repudiating such Person’s guaranty of the Indebtedness incurred by Borrower.


 


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(g) Further Assurances. Borrower shall have delivered such further documentation or
assurances as Bank may reasonably require.



4. Representations and Warranties. In order to induce Bank to enter into this
Agreement and to make the Loan provided for herein, Borrower makes the following representations
and warranties, all of which shall survive the execution and delivery of the Loan Documents.
Unless otherwise specified, such representations and warranties shall be deemed made as of the date
hereof and as of the Advance Date of any Advance by Bank to Borrower:



4.1. Valid Existence and Power. Each of Borrower and the Surety is a corporation or
limited liability company duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization and is duly qualified or licensed to transact business in all
places where the failure to be so qualified would have a Material Adverse Effect on it. Each of
Borrower and each other Person which is a party to any Loan Document (other than Bank) has the
power to make and perform the Loan Documents executed by it and all such instruments will
constitute the legal, valid and binding obligations of such Person, enforceable in accordance with
their respective terms, subject only to bankruptcy and similar laws affecting creditors’ rights
generally.



4.2. Authority. The execution, delivery and performance thereof by Borrower and each
other Person (other than Bank) executing any Loan Document have been duly authorized by all
necessary action of such Person, and do not and will not violate any provision of law or
regulation, or any writ, order or decree of any court or governmental or regulatory authority or
agency or any provision of the governing instruments of such Person, and do not and will not, with
the passage of time or the giving of notice, result in a breach of, or constitute a default or
require any consent under, or result in the creation of any Lien upon any property or assets of
such Person pursuant to, any law, regulation, instrument or agreement to which any such Person is a
party or by which any such Person or its respective properties may be subject, bound or affected.



4.3. Financial Condition. Other than as disclosed in financial statements delivered
on or prior to the date hereof to Bank, neither Borrower nor any Subsidiary nor (to the knowledge
of Borrower) any Surety has any direct or contingent obligations or liabilities (including any
guarantees or leases) or any material unrealized or anticipated losses from any commitments of such
Person. All such financial statements have been prepared in accordance with GAAP and fairly
present the financial condition of Borrower, Subsidiary or Surety, as the case may be, as of the
date thereof. Borrower is not aware of any material adverse fact (other than facts which are
generally available to the public and not particular to Borrower, such as general economic or
industry trends) concerning the conditions or future prospects of Borrower or any Subsidiary or any
Surety which has not been fully disclosed to Bank, including any adverse change in the operations
or financial condition of such Person since the date of the most recent financial statements
delivered to Bank. Each of Borrower and the Surety is Solvent, and after consummation of the
transactions set forth in this Agreement and the other Loan documents, Borrower and the Surety will
be Solvent.


 


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4.4. Litigation. There are no suits or proceedings pending, or to the knowledge of
Borrower threatened, before any court or by or before any governmental or regulatory authority,
commission, bureau or agency or public regulatory body against or affecting Borrower, any
Subsidiary or any Surety, or their assets, which if adversely determined would have a Material
Adverse Effect on the financial condition or business of Borrower, such Subsidiary or such Surety.



4.5. Agreements, Etc. Neither Borrower nor any Subsidiary is a party to any
agreement or instrument or subject to any court order, governmental decree or any charter or other
corporate restriction, adversely affecting its business, assets, operations or condition (financial
or otherwise), nor is any such Person in default in the performance, observance or fulfillment of
any of the obligations, covenants or conditions contained in any agreement or instrument to which
it is a party, or any law, regulation, decree, order or the like.



4.6. Authorizations. All authorizations, consents, approvals and licenses required
under applicable law or regulation for the ownership or operation of the property owned or operated
by Borrower or any Subsidiary or for the conduct of any business in which it is engaged have been
duly issued and are in full force and effect, and it is not in default, nor has any event occurred
which with the passage of time or the giving of notice, or both, would constitute a default, under
any of the terms or provisions of any part thereof, or under any order, decree, ruling, regulation,
closing agreement or other decision or instrument of any governmental commission, bureau or other
administrative agency or public regulatory body having jurisdiction over such Person, which default
would have a material adverse effect on such Person. Except as noted herein, no approval, consent
or authorization of, or filing or registration with, any governmental commission, bureau or other
regulatory authority or agency is required with respect to the execution, delivery or performance
of any Loan Document.




4.7. Intentionally Omitted.



4.8. Collateral. The security interests granted to Bank herein and pursuant to any
other Security Agreement (a) constitute and, as to subsequently acquired property included in the
Collateral covered by the Security Agreement, will constitute, security interests under the Code
entitled to all of the rights, benefits and priorities provided by the Code and (b) are, and as to
such subsequently acquired Collateral will be, fully perfected, superior and prior to the rights of
all third persons, now existing or hereafter arising.



4.9. Taxes. Borrower, Surety and each Subsidiary have filed all federal and state
income and other tax returns which are required to be filed, and have paid all taxes as shown on
said returns and all taxes, including withholding, FICA and ad valorem taxes, shown
on all assessments received by it to the extent that such taxes have become due. None of Borrower,
Surety, nor any Subsidiary is subject to any federal, state or local tax Liens nor has such Person
received any notice of deficiency or other official notice to pay any taxes. Borrower, Surety and
each Subsidiary have paid all sales and excise taxes payable by it.



4.10. Intentionally Omitted.


 


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4.11. Intentionally Omitted.



4.12. Judgment Liens. Neither Borrower, nor Surety, nor any Subsidiary, nor any of
their assets, are subject to any unpaid judgments (whether or not stayed) or any judgment liens in
any jurisdiction.



4.13.  Subsidiaries. Borrower has provided Bank with a list of its Subsidiaries.



4.14. Intentionally Omitted.



4.15. Intentionally Omitted.



4.16. Investment Company Act. Neither Borrower nor any Subsidiary is an “investment
company” as defined in the Investment Company Act of 1940, as amended.



4.17. Insider. Borrower is not, and no Person having “control” (as that term is
defined in 12 U.S.C.. 375(b)(5) or in regulations promulgated pursuant thereto) of Borrower is,
an “executive officer,” “director,” or “principal shareholder” (as those terms are defined in 12
U.S.C.. 375(b) or in regulations promulgated pursuant thereto) of Bank, of a bank holding company
of which Bank is a subsidiary, or of any subsidiary of a bank holding company of which Bank is a
subsidiary.



4.18. Compliance with Covenants; No Default. Borrower is, and upon funding of the
Loan will be, in compliance with all of the covenants hereof. No Default has occurred, and the
execution, delivery and performance of the Loan Documents and the funding of the Loan will not
cause a Default.



4.19. Full Disclosure. There is no material fact which is known or which should be
known by Borrower that Borrower has not disclosed to Bank which could have a Material Adverse
Effect. No Loan Document, nor any agreement, document, certificate or statement delivered by
Borrower to Bank, contains any untrue statement of a material fact or omits to state any material
fact which is known or which should be known by Borrower necessary to keep the other statements
from being misleading.



5. Affirmative Covenants of Borrower. Borrower covenants and agrees that from the
date hereof and until payment in full of the Indebtedness and the formal termination of this
Agreement, Borrower, Surety and each Subsidiary:



5.1. Use of Loan Proceeds. Shall use the proceeds of the Loan only to provide
interim funding for construction at its new global headquarters in York, Pennsylvania, and shall
furnish Bank all evidence that it may reasonably require with respect to such use.



5.2. Intentionally Omitted.


 


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5.3. Insurance. Shall maintain such liability insurance, workers’ compensation
insurance, business interruption insurance and casualty insurance as may be required by law.



5.4. Notice of Default. Shall provide to Bank immediate notice of (a) the occurrence
of a Default and what action (if any) Borrower is taking to correct the same, (b) any material
litigation or material changes in existing litigation or any judgment against it or its assets, or
Surety or Surety’s assets, (c) any material damage or loss to property, and (d) any notice from
taxing authorities as to claimed deficiencies or any tax lien with respect to Borrower or Surety.




5.5. Intentionally Omitted.



5.6. Additional Information. Shall furnish to Bank the following periodic
information:



(a) No Default Certificates. Together with each request for an Advance, a
certificate of an authorized officer of Borrower that no Default or event of default then exists or
if a Default or event of default exists, the nature and duration thereof and Borrower’s intention
with respect thereto; and



(b) Other Information. Such other information reasonably requested by Bank from time
to time concerning the business, properties or financial condition of Borrower, Surety and any
Subsidiaries.



5.7. Maintenance of Existence and Rights. Shall preserve and maintain its corporate
existence, authorities to transact business, rights and franchises, trade names, patents,
trademarks and permits necessary to the conduct of its business.



5.8. Payment of Taxes, Etc. Shall pay before delinquent all of its debts and taxes,
except that Bank shall not unreasonably withhold its consent to nonpayment of taxes being actively
contested in accordance with law (provided that Bank may require bonding or other assurances).



5.9. Further Assurances. Shall take such further action and provide to Bank such
further assurances as may be reasonably requested to ensure compliance with the intent of this
Agreement and the other Loan Documents.



6. Negative Covenants of Borrower. Borrower covenants and agrees that from the date
hereof and until payment in full of the Indebtedness and the formal termination of this Agreement,
Borrower and each Subsidiary:



6.1. No Change in Name, Offices. Shall not, unless it shall have given 60 days’
advance written notice thereof to Bank, change its name or the location of its chief executive
office or other office where books or records are kept.


 


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6.2. Margin Stock. Shall not use any proceeds of the Loan to purchase or carry any
margin stock (within the meaning of Regulation U of the Board of Governors of Federal Reserve
System) or extend credit to others for the purpose of purchasing or carrying any margin stock.



6.3. Change of Trade or Fictitious Name. Shall give Bank thirty (30) days prior
written notice of any new trade or fictitious name. Borrower’s use of any trade or fictitious name
shall be in compliance with all laws regarding the use of such names.



6.4. Liquidation, Mergers, Consolidations and Dispositions of Substantial Assets.
Shall not dissolve or liquidate, or become a party to any merger or consolidation, or acquire by
purchase, lease or otherwise, all or a substantial part (more than 10% in the aggregate during the
term hereof) of the assets of any Person, or sell, transfer, lease or otherwise dispose of all or a
substantial part (more than 10% in the aggregate during the term hereof) of its property or assets,
or sell or dispose of any equity ownership interests in any Subsidiary.




7. Intentionally Omitted.




8. Default.




8.1. Events of Default. Each of the following shall constitute an Event of Default:



(a) There shall occur any default by Borrower in the payment, when due, of any principal of or
interest on the Note, any amounts due hereunder or any other Loan Document, or any other
Indebtedness; or



(b) There shall occur any default by Borrower or any other party to any Loan Document or other
loan document or agreement between Borrower or any Surety and the Bank (other than Bank) in the
performance of any agreement, covenant or obligation contained in this Agreement or such Loan
Document or other document or agreement not provided for elsewhere in this Section 8; or



(c) Any representation or warranty made by Borrower or any other party to any Loan Document
(other than Bank) herein or therein or in any certificate or report furnished in connection
herewith or therewith shall prove to have been untrue or incorrect in any material respect when
made; or



(d) Any other obligation now or hereafter owed by Borrower or any Subsidiary or Surety to Bank
shall be in default and not cured within the grace period, if any, which default entitles the
obligee to accelerate any such obligations or exercise other remedies with respect thereto; or


 


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(e) Borrower or any Subsidiary or Surety shall (A) voluntarily dissolve, liquidate or
terminate operations or apply for or consent to the appointment of, or the taking of possession by,
a receiver, custodian, trustee or liquidator of such Person or of all or of a substantial part of
its assets, (B) admit in writing its inability, or be generally unable, to pay its debts as the
debts become due, (C) make a general assignment for the benefit of its creditors, (D) commence a
voluntary case under the federal Bankruptcy Code (as now or hereafter in effect), (E) file a
petition seeking to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, (F) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any petition filed against it in an
involuntary case under Bankruptcy Code, or (G) take any corporate action for the purpose of
effecting any of the foregoing; or



(f) An involuntary petition or complaint shall be filed against Borrower or any Subsidiary or
any Surety seeking bankruptcy relief or reorganization or the appointment of a receiver, custodian,
trustee, intervenor or liquidator of Borrower or any Subsidiary or any Surety, of all or
substantially all of its assets, and such petition or complaint shall not have been dismissed
within sixty (60) days of the filing thereof; or an order, order for relief, judgment or decree
shall be entered by any court of competent jurisdiction or other competent authority approving or
ordering any of the foregoing actions; or



(g) A judgment in excess of $10,000 shall be rendered against the Borrower or any Subsidiary
or Surety and shall remain undischarged, undismissed and unstayed for more than ten days (except
judgments validly covered by insurance with a deductible of not more than $10,000) or there shall
occur any levy upon, or attachment, garnishment or other seizure of, any material portion of the
Collateral or other assets of Borrower, any Subsidiary or any Surety by reason of the issuance of
any tax levy, judicial attachment or garnishment or levy of execution; or



(h) Borrower, any Subsidiary or any Surety shall fail to pay, on demand, any returned or
dishonored draft, check, or other item which has been presented to Bank and for which Borrower has
received provisional credit; or




(i) Any Surety shall repudiate or revoke any Surety Agreement; or



(j) The making of any levy, seizure or attachment upon any assets of the Borrower or Surety;
or



(k) There shall occur any change in the condition (financial or otherwise) of Borrower and/or
any Surety which, in the reasonable opinion of Bank, could have a Material Adverse Effect.



8.2. Remedies. If any Default shall occur, Bank may, without notice to Borrower, at
its option, withhold further Advances to Borrower. If an Event of Default shall have occurred and
be continuing, Bank may at its option, declare any or all Indebtedness to be immediately due and
payable (if not earlier demanded), terminate its obligation to make Advances to Borrower, bring
suit against Borrower to collect the Indebtedness, exercise any
remedy available to Bank hereunder or at law and take any action or exercise any remedy
provided herein or in any other Loan Document or under applicable law. No remedy shall be
exclusive of other remedies or impair the right of Bank to exercise any other remedies.


 


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8.3. Receiver. In addition to any other remedy available to it, Bank shall have the
absolute right, upon the occurrence of an Event of Default, to seek and obtain the appointment of a
receiver to take possession of and operate and/or dispose of the business and assets of Borrower
and any costs and expenses incurred by Bank in connection with such receivership shall bear
interest at the Default Rate, at Bank’s option.



8.4 Deposits; Insurance. After the occurrence of an Event of Default, Borrower
authorizes Bank to collect and apply against the Indebtedness when due any cash or deposit accounts
in its possession, and irrevocably appoints Bank as its attorney-in-fact to endorse any check or
draft or take other action necessary to obtain such funds.




9. Intentionally Omitted.




10. Miscellaneous.



10.1. No Waiver, Remedies Cumulative. No failure on the part of Bank to exercise,
and no delay in exercising, any right hereunder or under any other Loan Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right. The remedies herein provided are
cumulative and are in addition to any other remedies provided by law, any Loan Document or
otherwise.



10.2. Survival of Representations. All representations and warranties made herein
shall survive the making of the Loan hereunder and the delivery of the Note, and shall continue in
full force and effect so long as any Indebtedness is outstanding, there exists any commitment by
Bank to Borrower, and until this Agreement is formally terminated in writing.



10.3. Indemnity By Borrower; Expenses. In addition to all other Indebtedness,
Borrower agrees to defend, protect, indemnify and hold harmless Bank and its Affiliates and all of
their respective officers, directors, employees, attorneys, consultants and agents from and against
any and all losses, damages, liabilities, obligations, penalties, fees, costs and expenses
(including, without limitation, attorneys’ and paralegals’ fees, costs and expenses) incurred by
such indemnitees, whether prior to or from and after the date hereof, as a result of or arising
from or relating to (i) the due diligence effort (including, without limitation, public record
search, recording fees, examinations and investigations of the properties of Borrower and
Borrower’s operations), negotiation, preparation, execution and/or performance of any of the Loan
Documents or of any document executed in connection with the transactions contemplated thereby,
maintenance of the Loan by Bank, and any and all amendments, modifications, and supplements of any
of the Loan Documents or restructuring of the Indebtedness, (ii) any suit, investigation, action or
proceeding by any Person (other than Borrower), whether threatened or initiated, asserting a claim
for any legal or


 


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equitable remedy against any Person under any statute, regulation or common law principle, arising from or in connection with Bank’s
furnishing of funds to Borrower under this Agreement, (iii) Bank’s preservation, administration and
enforcement of its rights under the Loan Documents and applicable law, including fifteen percent
(15%) of the outstanding Indebtedness as attorneys fees if collected by or through an attorney at
law and disbursements of counsel for Bank in connection therewith, whether suit be brought or not
and whether incurred at trial or on appeal; and/or (iv) any matter relating to the financing
transactions contemplated by the Loan Documents or by any document execution in connection with the
transactions contemplated thereby, other than for such loss, damage, liability, obligation,
penalty, fee, cost or expense arising from such indemnitee’s gross negligence or willful
misconduct. In addition, Borrower agrees to pay and save Bank harmless against any liability for
payment of any state documentary stamp taxes, intangible taxes or similar taxes (including interest
or penalties, if any) which may now or hereafter be determined to be payable in respect to the
execution, delivery or recording of any Loan Document or the making of any Advance, whether
originally thought to be due or not, and regardless of any mistake of fact or law on the part of
Bank or Borrower with respect to the applicability of such tax. Borrower’s obligation for
indemnification for all of the foregoing losses, damages, liabilities, obligations, penalties,
fees, costs and expenses of Bank shall be part of the Indebtedness, chargeable against Borrower’s
loan account, and shall survive termination of this Agreement.



10.4. Notices. Any notice or other communication hereunder under the Note to any
party hereto or thereto shall be by hand delivery, overnight delivery, facsimile, telegram, telex
or registered or certified mail and unless otherwise provided herein shall be deemed to have been
given or made when delivered, telegraphed, telexed, faxed or three (3) Business Days after having
been deposited in the mails, postage prepaid, addressed to the party at its address specified below
(or at any other address that the party may hereafter specify to the other parties in writing):



	 	 	 	 	 
	 

	 	Bank:
	 	Univest National Bank and Trust Co.
	 

	 	 	 	14 N. Main Street
	 

	 	 	 	P.O. Box 64197
	 

	 	 	 	Souderton, PA 18964-0197
	 

	 	 	 	Attn: William D. Maeglin, Executive Vice President


 


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	 	with a copy to:	 	 
	 

	 	 	 	Fox Rothschild LLP
	 

	 	 	 	10 Sentry Parkway, suite 200
	 

	 	 	 	P.O. Box 3001
	 

	 	 	 	Blue Bell, PA 19422-3001
	 

	 	 	 	Attn: Marc B. Davis, Esquire
	 
	 	 	 	 
	 

	 	Borrower:
	 	Unilife Cross Farm LLC
	 

	 	 	 	637 Lowther Road
	 

	 	 	 	Lewisberry, PA 17339
	 

	 	 	 	Attn: Chief Financial Officer






10.5. Governing Law. This Agreement and the Loan Documents shall be deemed contracts
made under the laws of the Commonwealth of Pennsylvania and shall be governed by and construed in
accordance with the laws of said state (excluding its conflict of laws provisions if such
provisions would require application of the laws of another jurisdiction).



10.6. Successors and Assigns. This Agreement shall be binding upon and shall inure
to the benefit of Borrower and Bank, and their respective successors and assigns; provided, that
Borrower may not assign any of its rights hereunder without the prior written consent of Bank, and
any such assignment made without such consent will be void.



10.7. Counterparts. This Agreement may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original and all of which when taken together shall constitute but one and the
same instrument.



10.8. No Usury. Regardless of any other provision of this Agreement, the Note or in
any other Loan Document, if for any reason the effective interest should exceed the maximum lawful
interest, the effective interest shall be deemed reduced to, and shall be, such maximum lawful
interest, and (i) the amount which would be excessive interest shall be deemed applied to the
reduction of the principal balance of the Note and not to the payment of interest, and (ii) if the
loan evidenced by the Note has been or is thereby paid in full, the excess shall be returned to the
party paying same, such application to the principal balance of the Note or the refunding of excess
to be a complete settlement and acquittance thereof.


 


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10.9. Powers. All powers of attorney granted to Bank are coupled with an interest
and are irrevocable.



10.10. Approvals. If this Agreement calls for the approval or consent of Bank, such
approval or consent may be given or withheld in the discretion of Bank unless otherwise specified
herein.



10.11. Litigation. BORROWER CONSENTS TO THE JURISDICTION OF THE COURTS OF THE
COMMONWEALTH OF PENNSYLVANIA AND THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA IN CONNECTION WITH ANY CLAIM OR DISPUTE ARISING UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS. IF ANY ACTION IN CONNECTION WITH ANY SUCH CLAIM IS
COMMENCED BY THE BANK AGAINST THE BORROWER IN ANY SUCH COURT, THE BORROWER ALSO AGREES THAT SERVICE
OR PROCESS MAY BE MADE ON THE BORROWER BY CERTIFIED OR REGISTERED MAIL ADDRESSED TO THE BORROWER AT
ITS ADDRESS SPECIFIED IN SECTION 10.4.



THE BORROWER WAIVES TRIAL BY JURY AND THE RIGHT TO INTERPOSE ANY DEFENSE BASED ON ANY STATUTE
OF LIMITATIONS OR CLAIM OF LACHES IN ANY ACTION BY OR AGAINST THE BORROWER IN CONNECTION WITH ANY
CLAIM OR DISPUTE ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.



10.12. Participations. Bank shall have the right to enter into one or more
participation with other lenders with respect to the Indebtedness. Upon prior notice to Borrower
of such participation, Borrower shall thereafter furnish to such participant any information
furnished by Borrower to Bank pursuant to the terms of the Loan Documents. Nothing in this
Agreement or any other Loan Document shall prohibit Bank from pledging or assigning this Agreement
and Bank’s rights under any of the other Loan Documents, including collateral therefor, to any
Federal Reserve Bank in accordance with applicable law.



10.13. Multiple Borrowers. If more than one Person is named as Borrower hereunder,
all Indebtedness, representations, warranties, covenants and indemnities set forth in the Loan
Documents to which such Person is a party shall be joint and several. Bank shall have the right to
deal with any individual of any Borrower with regard to all matters concerning the rights and
obligations of Bank hereunder and pursuant to applicable law with regard to the transactions
contemplated under the Loan Documents. All actions or inactions of the officers, managers, members
and/or agents of any Borrower with regard to the transactions contemplated under the Loan Documents
shall be deemed with full authority and binding upon all Borrowers hereunder. Each Borrower hereby
appoints each other Borrower as its true and lawful attorney-in-fact, with full right and power,
for purposes of exercising all rights of such Person hereunder and under applicable law with regard
to the transactions contemplated under the Loan Documents. The foregoing is a material inducement
to the agreement of Bank to enter into the terms hereof and to consummate the transactions
contemplated hereby.


 


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10.14. Waiver of Certain Defenses. To the fullest extent permitted by applicable
law, upon the occurrence of any Event of Default, neither Borrower nor anyone claiming by or under
Borrower will claim or seek to take advantage of any law requiring Bank to attempt to realize upon
any Collateral or collateral of any surety or guarantor, or any appraisement, evaluation, stay,
extension, homestead, redemption or exemption laws now or hereafter in force in order to prevent or
hinder the enforcement of this Agreement. Borrower, for itself and all who may at any time claim
through or under Borrower, hereby expressly waives to the fullest extent permitted by law the
benefit of all such laws. All rights of Bank and all obligations of Borrower hereunder shall be
absolute and unconditional irrespective of (i) any change in the time, manner or place of payment
of, or any other term of, all or any of the Indebtedness, or any other amendment or waiver of or
any consent to any departure from any provision of the Loan Documents, (ii) any exchange, release
or non-perfection of any other collateral given as security for the Indebtedness, or any release or
amendment or waiver of or consent to departure from any guaranty for all or any of the
Indebtedness, or (iii) any other circumstance which might otherwise constitute a defense available
to, or a discharge of, Borrower or any third party, other than payment and performance in full of
the Indebtedness.




10.15. Time of the Essence. Time is of the essence of this Agreement.



IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.



	 	 	 	 	 	 	 	 	 
	 	 	 	 	UNIVEST NATIONAL BANK AND TRUST CO.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ William D. Maeglin	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name/Title: William D. Maeglin, Executive Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	UNILIFE CROSS FARM LLC, by its sole member,

UNILIFE CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 
	Attest:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ J. Christopher Naftzger	 	By:	 	/s/ R. Richard Wieland	 	 
	 

	 	 
	 	 	 	 	 	 
	 

	 	Name/Title: J. Christopher
Naftzger
                    Secretary
	 	 	 	Name/Title: R. Richard Wieland
                   
Executive VP and CFO	 	 
	 
	 	 	 	 	 	 	 	 
	(CORPORATE SEAL)	 	 	 	 	 	 





 


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SCHEDULE OF EXHIBITS




(If any exhibit is omitted, the information called for therein

shall be considered “None” or “Not Applicable”)




	 	 	 	 	 
	Exhibit	 	Section Reference	 	Title
	 
	1

	 	1     (“Definitions”)
	 	Definitions






 


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EXHIBIT 1




Definitions




1.1 Defined Terms:




“Advance” means an advance of proceeds of the Loan to Borrower pursuant to this
Agreement.




“Advance Date” means the date on which an Advance is made.



“Advance Request” means the written request for an Advance under the Loan as
identified in Subsection 2.5(a) hereof and shall also include presentments triggering an automatic
Advance under the Services Agreement.



“Affiliate” of a Person means (a) any Person directly or indirectly owning 5% or more
of the voting stock or rights of such named Person or of which the named Person owns 5% or more of
such voting stock or rights; (b) any Person controlling, controlled by or under common control with
such named Person; (c) any officer, director or employee of such named Person or any Affiliate of
the named Person; and (d) any family member of the named Person or any Affiliate of such named
Person.



“Borrowing Base” means, at any time, the sum held in the reserve account established
by Surety with Bank and subject to the terms of a Security Agreement Regarding Reserve Account of
even date herewith made by Surety in favor of Bank, less $100,000; provided, however, that only
such monies as are otherwise available for withdrawal (and not subject to any hold) shall be
included in the definition of Borrowing Base.



“Business Day” means a weekday on which commercial banks are open for business in
Philadelphia, Pennsylvania.



“Code” means the Uniform Commercial Code, as in effect in Pennsylvania from time to
time.



“Collateral” shall have the meaning given to it in the Security and Control Agreement
Regarding Reserve Account executed by the Surety in favor of the Bank of even date herewith.



“Default Rate” means the highest lawful rate of interest per annum specified in any
Note to apply after a default under such Note or, if no such rate is specified, a rate equal to the
lesser of (a) the rate of interest provided under the Note plus two percent (2%) per annum and (b)
the highest rate of interest allowed by law.



“Disputes” has the meaning set forth in Section 10.11.


 


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“Event of Default” means any event specified as such in Section 8.1 hereof
(“Events of Default”), provided that there shall have been satisfied any requirement in
connection with such event for the giving of notice or the lapse of time, or both;
“Default” or “default” means any of such events, whether or not any such requirement for
the giving of notice or the lapse of time or the happening of any further condition, event or act
shall have been satisfied.



“GAAP” means generally accepted accounting principles as in effect in the United
States from time to time.



“Indebtedness” means all obligations now or hereafter owed to Bank by Borrower or any
Surety, whether related or unrelated to the Loan, including, without limitation, amounts owed or to
be owed under the terms of the Loan Documents, or arising out of the transactions described
therein, including, without limitation, the Loan, sums advanced to pay overdrafts on any account
maintained by Borrower with Bank, together with all interest accruing thereon, all obligations
under any swap agreements as defined in 11 U.S.C.. 101 between Bank and Borrower whenever executed,
all fees, all costs of collection, attorneys’ fees and expenses of or advances by Bank which Bank
pays or incurs in discharge of obligations of Borrower or to inspect, repossess, protect, preserve,
store or dispose of any Collateral, whether such amounts are now due or hereafter become due,
direct or indirect and whether such amounts due are from time to time reduced or entirely
extinguished and thereafter re-incurred.



“Lien” means any mortgage, pledge, statutory lien or other lien arising by operation
of law, security interest, trust arrangement, security deed, financing lease, collateral assignment
or other encumbrance, conditional sale or title retention agreement, or any other interest in
property designed to secure the repayment of Indebtedness, whether arising by agreement or under
any statute or law or otherwise.




“Loan” means the non-revolving loan identified in Section 2.1 hereof.



“Loan Documents” means this Agreement, any Security Agreement, any Note, any Surety
Agreement, the Advance Requests, UCC-1 financing statements and all other documents and instruments
now or hereafter evidencing, describing, guaranteeing or securing the Indebtedness contemplated
hereby or delivered in connection herewith or therewith, as they may be modified.



“Material Adverse Effect” means any (i) material adverse effect upon the validity,
performance or enforceability of any of the Loan Documents or any of the transactions contemplated
hereby or thereby, (ii) material adverse effect upon the properties, business, prospects or
condition (financial or otherwise) of Borrower and/or any other Person obligated under any of the
Loan Documents, or (iii) material adverse effect upon the ability of Borrower or any other Person
to fulfill any obligation under any of the Loan Documents.



“Maximum Loan Amount” means $7,000,000.


 


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“Note” shall have the meaning set forth in Section 2.2 and any other promissory note
now or hereafter evidencing any Indebtedness, and all modifications, extensions and renewals
thereof.



“Person” means any natural person, corporation, unincorporated organization, trust,
joint-stock company, joint venture, association, company, limited or general partnership, any
government or any agency or political subdivision of any government, or any other entity or
organization.



“Credit Period” means the period from and including the date of this Agreement to but
not including the Termination Date.



“Security Agreement” means security agreement or similar instrument now or hereafter
executed by Borrower or other Person granting Bank a security interest in any collateral to secure
the Indebtedness.



“Solvent” means, as to any Person, that such Person has capital sufficient to carry on
its business and transactions in which it is currently engaged and all business and transactions in
which it is about to engage, is able to pay its debts as they mature, and has assets having a fair
valuation greater than its liabilities, at fair valuation.



“Subsidiary” means any corporation, partnership or other entity in which Borrower,
directly or indirectly, owns more than fifty percent (50%) of the stock, capital or income
interests, or other beneficial interests, or which is effectively controlled by such Person.



“Surety” means Unilife Corporation and any other Person now or hereafter guaranteeing,
endorsing or otherwise becoming liable for any Indebtedness.



“Surety Agreement” means any guaranty instrument now or hereafter executed and
delivered by any Surety to Bank, as it may be modified.




“Termination Date” means February 13, 2011.



1.2. Financial Terms. All financial terms used herein shall have the meanings assigned
to them under GAAP unless another meaning shall be specified.




 


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