EXHIBIT 10.04
This Loan Agreement (this "Agreement") is entered into by and between INVIVO
CORPORATION ("Borrower") and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION ("Bank") and
sets forth the terms and conditions which govern all Borrower's commercial
credit accommodations from Bank, whether now existing or hereafter granted
(each, a "Credit" and collectively, "Credits"), which terms and conditions are
in addition to those set forth in any other contract, instrument or document
(collectively with this Agreement, the "Loan Documents") required by this
Agreement or heretofore or at any time hereafter delivered to Bank in connection
with any Credit.
1. REPRESENTATIONS AND WARRANTIES. Borrower makes the following representations
and warranties to Bank, which representations and warranties shall be true as of
the date hereof and on the date of each extension of credit under each Credit
with the same effect as though made on each such date:
1.1 Legal Status. Borrower is a CORPORATION, duly organized and existing and in
good standing under the laws of the State of DELAWARE, and is qualified or
licensed to do business in all jurisdictions in which such qualification or
licensing is required or in which the failure to be qualified or licensed could
have a material adverse effect on Borrower.
1.2 Authorization and Validity. Each of the Loan Documents has been duly
authorized, and upon its execution and delivery to Bank will constitute a legal,
valid and binding obligation of Borrower or the party which executes the same,
enforceable in accordance with its respective terms.
1.3 No Violation. The execution, delivery and p performance by Borrower of each
of the Loan Documents do not violate any provision of law or regulation, or
contravene any provision of Borrower's Articles of Incorporation or By-Laws, or
result in any breach of or default under any agreement, indenture or other
instrument to which Borrower is a party or by which Borrower may be bound.
1.4 No Litigation. There are no pending, or to the best of Borrower's knowledge
threatened, actions, claims, investigations, suits or proceedings by or before
any governmental authority, arbitrator, court or administrative agency which
could have a material adverse effect on the financial condition or operation of
Borrower except as disclosed by Borrower to Bank in writing prior to the date
hereof.
1.5 Financial Statements. The most recent annual financial statement of
Borrower, and all interim financial statements delivered to Bank since the date
of said annual financial statement, true copies of which have been delivered by
Borrower to Bank prior to the date hereof, are complete and correct, present
fairly the financial condition of Borrower and disclose all liabilities of
Borrower, and have been prepared in accordance with generally accepted
accounting principles. Since the dates of such financial statements there has
been no material adverse change in the financial condition of Borrower, nor has
Borrower mortgaged, pledged, granted a security interest in or otherwise
encumbered any of its assets or properties except in favor of Bank or as
otherwise permitted by Bank in writing.
1.6 Tax Returns. Borrower has no knowledge of any pending assessments or
adjustments of its income tax payable with respect to any year except as
disclosed by Borrower to Bank in writing prior to the date hereof.
2. ADDITIONAL TERMS.
2.1 Conditions Precedent. The obligation of Bank to grant any Credit is subject
to the condition that Bank shall have received all contracts, instruments and
documents, duly executed where applicable, deemed necessary by Bank to evidence
such Credit and all terms and conditions applicable thereto, all of which shall
be in form and substance satisfactory to Bank.
2.2 Application of Payments. Each payment made on each Credit shall be applied
first, to any interest then due, second, to any fees and charges then due, and
third, to the outstanding principal balance thereof.
2.3 Guaranties. The payment and performance of all indebtedness and other
obligations of Borrower to Bank, now existing or hereafter incurred and whether
direct or contingent, shall be guaranteed jointly and severally by INVIVO
RESEARCH, INC.. AND LINEAR LABORATORIES CORPORATION, as evidenced by and subject
to the terms of guaranties in form and substance satisfactory to Bank.
3. COVENANTS. So long as any Credit remains available or any amounts under any
Credit remain outstanding, Borrower shall, unless Bank otherwise consents in
writing:
3.1 Insurance. Maintain and keep in force, for each business in which Borrower
is engaged, insurance of the types and in amounts customarily carried in similar
lines of business, including but not limited to fire, extended coverage, public
liability, flood, property damage and 'workers' compensation, carried with
companies and in amounts satisfactory to Bank, and deliver to Bank from time to
time at Bank's request schedules setting forth all insurance then in effect.
3.2 Compliance: Laws and Regulations. Preserve and maintain all licenses,
permits, governmental approvals, rights, privileges and franchises necessary for
the conduct of Borrower's business; and comply with the provisions of all
documents pursuant to which Borrower is organized and/or which govern Borrower's
continued existence and with the requirements of all laws, rules, regulations
and orders of any governmental authority applicable to Borrower and/or its
business, including without limitation, all state or federal environmental,
hazardous waste, health and safety statutes, and any rules or regulations
adopted pursuant thereto, which govern or affect any operations and/or
properties of Borrower.
3.3 Other Indebtedness. Not create, incur, as me or permit to exist any
indebtedness or other liabilities, whether secured or unsecured, matured or
unmatured, liquidated or unliquidated, joint or several, direct or contingent
(including any contingent liability under any guaranty of the obligations of any
person or entity), except (a) the liabilities of Borrower to Bank, (b) trade
debt incurred by Borrower in the normal course of its business, and (c) any
other liabilities of Borrower existing as of, and disclosed to Bank in writing
prior to, the date hereof.
3.4 Merger; Consolidation: Transfer of Assets. Not merge into or consolidate
with any other entity; nor make any substantial change in the nature of
Borrower's business as conducted as of the date hereof; nor acquire all or
substantially all of the assets of any other person or entity; nor sell, lease,
transfer or otherwise dispose of all or a substantial or material portion of
Borrower's assets except in the ordinary course of its business.
3.5 Financial Statements. Provide to Bank all of the following, in form and
detail satisfactory to Bank, together with such current financial and other
information as Bank from time to time may reasonably request:
(a) As soon as available, but in no event later than 90 days after and as
of the end of each fiscal year, an audited financial statement of Borrower,
prepared by an independent certified public accountant acceptable to Bank,
to include a balance sheet, income statement and statement of cash flow,
together with all supporting schedules and footnotes.
(b) As soon as available, but in no event later than 45 days after and as
of the end of EACH FISCAL QUARTER, a financial statement of Borrower,
prepared by Borrower and certified as correct by an officer of Borrower
authorized to borrow under the most current Corporate Borrowing Resolution
delivered by Borrower to Bank, to include a balance sheet and income
statement, together with all supporting schedules and footnotes.
3.6 Financial Condition. Maintain Borrower's financial condition as follows
using generally accepted accounting principles consistently applied and used
consistently with prior practices, except to the extent modified by the
following definitions:
(a) Working Capital not at any time less than $13,000,000.00, with "Working
Capital" defined as total current assets minus current liabilities.
(b) Tangible Net Worth not at any time less than $30,000,000.00, with "Tangible
Net Worth" defined as the aggregate of total stockholders' equity plus
subordinated debt less any intangible assets.
(c) Total Liabilities divided by Tangible Net Worth not at any time greater
than 2.00 to 1.0, with "Total Liabilities" defined as the aggregate of
current liabilities and non-current liabilities less subordinated debt, and
with "Tangible Net Worth" as defined above.
(d) Net income after taxes not less than $1.00 on an annual basis, determined as
of each fiscal year end, and pre-tax profit not less than $1.00 on a quarterly
basis, determined as of each fiscal quarter end.
4. DEFAULT; REMEDIES.
4.1 Events of Default. The occurrence of any of the following shall constitute
an "Event of Default" under this Agreement:
(a) The failure to pay any principal, interest, fees or other charges
when due under any of the Loan Documents.
(b) Any representation or warranty hereunder or under any other Loan Document
shall prove to be incorrect, false or misleading in any material respect when
made.
(c) Any violation or breach of any term or condition of this Agreement
or any other of the Loan Documents.
(d) Any default in the payment or performance of any obligation, or any
defined event of default, under any provisions of any contract,
instrument or document pursuant to which Borrower or any guarantor
hereunder has incurred debt or any other liability of any kind to any
person or entity, including Bank.
(e) The filing of a petition by or against Borrower or any guarantor
hereunder under any provisions of the Bankruptcy Reform Act, Title 11
of the United States Code, as amended or recodified from time to time,
or under any similar or other law relating to bankruptcy, insolvency,
reorganization or other relief for debtors; the appointment of a
receiver, trustee, custodian or liquidator of or for any part of the
assets or property of Borrower or any such guarantor; Borrower or any
such guarantor becomes insolvent, makes a general assignment for the
benefit of creditors or is generally not paying its debts as they
become due; or any attachment or like levy on any property of Borrower
or any such guarantor.
(f) Any material adverse change, as determined solely by Bank, in the
financial condition of Borrower.
(g) The death or incapacity of any individual guarantor hereunder; or
the dissolution or liquidation of Borrower or of any guarantor
hereunder which is a corporation, partnership or other type of entity.
(h) Any change in ownership during the term hereof of an aggregate of 25% or
more of the common stock of Borrower.
4.2 Remedies. Upon the occurrence of any Event of Default: (a) the entire
balance of principal, interest, fees and other charges on each Credit shall, at
Bank's option, become immediately due and payable without presentment, demand,
protest or notice of dishonor, all of which are expressly waived by Borrower;
(b) the obligation, if any, of Bank to extend any further credit to Borrower
under any of the Loan Documents shall immediately cease and terminate; and (c)
Bank shall have all rights, powers and remedies available under each of the Loan
Documents, or accorded by law, including without limitation the right to resort
to any security for any Credit. All rights, powers and remedies of Bank shall be
cumulative.
5. MISCELLANEOUS.
5.1 No Waiver. No delay, failure or discontinuance of Bank in exercising any
right, power or remedy under any of the Loan Documents shall affect or operate
as a waiver of such right, power or remedy; nor shall any single or partial
exercise of any such right, power or remedy preclude, waive or otherwise affect
any other or further exercise thereof or the exercise of any other right, power
or remedy. Any waiver, permit, consent or approval of any kind by Bank of any
breach of or default under any of the Loan Documents, or any such waiver of any
provisions or conditions hereof, must be in writing and shall be effective only
to the extent set forth in writing.
5.2 Notices. All notices, requests and demands required under this Agreement
must be in writing, addressed to the applicable party at its address specified
below or to such other address as any party may designate by written notice to
each other party, and shall be deemed given or made as follows: (a) if
personally delivered, upon delivery; (b) if sent by mail, upon the earlier of
the date of receipt or 3 days after deposit in the U.S. mail, first class and
postage prepaid; and (c) if sent by telecopy, upon receipt.
5.3 Costs. Expenses and Attorneys' Fees. Borrower shall pay to Bank immediately
upon demand the full amount of all payments, advances, charges, costs and
expenses, including reasonable attorneys' fees (to include outside counsel fees
and all allocated costs of Bank's in-house counsel), expended or incurred by
Bank in connection with (a) the negotiation and preparation of this Agreement
and the other Loan Documents, and Bank's continued administration of each
Credit, (b) the enforcement of Bank's rights and/or the collection of any
amounts which become due to Bank under any of the Loan Documents, and (c) the
prosecution or defense of any action in
any way related to any of the Loan Documents, including without limitation, any
action for declaratory relief, whether incurred at the trial or appellate level,
in an arbitration proceeding or otherwise, and including any of the foregoing
incurred in connection with any bankruptcy proceeding (including without
limitation, any adversary proceeding, contested matter or motion brought' by
Bank or any other person) relating to Borrower or any other person or entity.
5.4 Successors: Assignment. This Agreement shall be binding upon and inure to
the benefit of the heirs, executors, administrators, legal representatives,
successors and assigns of the parties; provided however, that Borrower may not
assign or transfer its interests or rights hereunder without Bank's prior
written consent. Bank reserves the right to sell, assign, transfer, negotiate or
grant participations in all or any part of, or any interest in, Bank's rights
and benefits under each of the Loan Documents. In connection therewith, Bank may
disclose all documents and information which Bank now has or may hereafter
acquire relating to any Credit, Borrower or its business, any guarantor of any
Credit or the business of any such guarantor, or any collateral for any Credit.
5.5 Controlling Agreement: Amendment. In the event of any direct conflict
between any provision of this Agreement and any provision of any other Loan
Document, the terms of this Agreement shall control. This Agreement may be
amended or modified only in writing signed by Bank and Borrower.
5.6 No Third Party Beneficiaries. This Agreement is made and entered into for
the sole protection and benefit of the parties hereto and their respective
permitted successors and assigns, and no other person or entity shall be a third
party beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any other Loan Document to which it is not a
party.
5.7 Severability of Provisions. If any provision of this Agreement shall be held
to be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or any remaining provisions of this
Agreement.
5.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
5.9 Cancellation of Prior Loan Agreements. This Agreement cancels and supersedes
all prior loan agreements between Borrower and Bank relating to any Credit.
6. ARBITRATION.
6.1 Arbitration. The parties hereto agree, upon demand by any party, to submit
to binding arbitration all claims, disputes and controversies between or among
them (and their respective employees, officers, directors, attorneys, and other
agents), whether in tort, contract or otherwise arising out of or relating to in
any way (a) the loan and related Loan Documents which are the subject of this
Agreement and its negotiation, execution, collateralization, administration,
repayment, modification, extension, substitution, formation, inducement,
enforcement, default or termination; or (b) requests for additional credit.
6.2 Governing Rules. Any arbitration proceeding will (a) proceed in a location
in California selected by the American Arbitration Association ("AAA"); (b) be
governed by the Federal Arbitration Act (Title 9 of the United States Code),
notwithstanding any conflicting choice of law provision in any of the documents
between the parties; and (c) be conducted by the AAA, or such other
administrator as the parties shall mutually agree upon, in accordance with the
AAA's commercial dispute resolution procedures, unless the claim or counterclaim
is at least $1,000,000.00 exclusive of claimed interest, arbitration fees and
costs in which case the arbitration shall be conducted in accordance with the
AAA's optional procedures for large, complex commercial disputes (the commercial
dispute resolution procedures or the optional procedures for large, complex
commercial disputes to be referred to, as applicable, as the "Rules"). If there
is any inconsistency between the terms hereof and the Rules, the terms and
procedures set forth herein shall control. Any party who fails or refuses to
submit to arbitration following a demand by any other party shall bear all costs
and expenses incurred by such other party in compelling arbitration of any
dispute. Nothing contained herein shall be deemed to be a waiver by any party
that is a bank of the protections afforded to it under 12 U.S.C. Section 91 or
any similar applicable state law.
6.3 No Waiver of Provisional Remedies. Self-Help and Foreclosure. The
arbitration requirement does not limit the right of any party to (a) foreclose
against,; real or personal property collateral; (b) exercise self-help remedies
relating to collateral or proceeds of collateral such as setoff or repossession;
or (c) obtain provisional or ancillary remedies such as replevin, injunctive
relief, attachment or the appointment of a receiver, before during or after the
pendency of any arbitration proceeding. This exclusion does not constitute a
waiver of the right or obligation of any party to submit any dispute to
arbitration or reference hereunder, including those arising from the exercise of
the actions detailed in sections (a), (b) and (c) of this paragraph.
6.4 Arbitrator Qualifications and Powers. Any arbitration proceeding in which
the amount in controversy is $5,000,000.00 or less will be decided by a single
arbitrator selected according to the Rules, and who shall not render an award of
greater than $5,000,000.00. Any dispute in which the amount in controversy
exceeds $5,000,000.00
shall be decided by majority vote of a panel of three arbitrators; provided
however, that all three arbitrators must actively participate in all hearings
and deliberations. The arbitrator will be a neutral attorney licensed in the
State of California or a neutral retired judge of the state or federal judiciary
of California, in either case with a minimum of ten years experience in the
substantive law applicable to the subject matter of the dispute to be
arbitrated. The arbitrator will determine whether or not an issue is
arbitratable and will give effect to the statutes of limitation in determining
any claim. In any arbitration proceeding the arbitrator will decide (by
documents only or with a hearing at the arbitrator's discretion) any pre-hearing
motions which are similar to motions to dismiss for failure to state a claim or
motions for summary adjudication. The arbitrator shall resolve all disputes in
accordance with the substantive law of California and may grant any remedy or
relief that a court of such state could order or grant within the scope hereof
and such ancillary relief as is necessary to make effective any award. The
arbitrator shall also have the power to award recovery of all costs and fees, to
impose sanctions and to take such other action as the arbitrator deems necessary
to the same extent a judge could pursuant to the Federal Rules of Civil
Procedure, the California Rules of Civil Procedure or other applicable law.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction. The institution and maintenance of an action for judicial
relief or pursuit of a provisional or ancillary remedy shall not constitute a
waiver of the right of any party, including the plaintiff, to submit the
controversy or claim to arbitration if any other party contests such action for
judicial relief.
6.5 Discovery. In any arbitration proceeding discovery will be permitted in
accordance with the Rules. All discovery shall be expressly limited to matters
directly relevant to the dispute being arbitrated and must be completed no later
than 20 days before the hearing date and within 180 days of the filing of the
dispute with the AAA. Any requests for an extension of the discovery periods, or
any discovery disputes, will be subject to final determination by the arbitrator
upon a showing that the request for discovery is essential for the party's
presentation and that no alternative means for obtaining information is
available.
6.6 Class Proceedings and Consolidations. The resolution of any dispute arising
pursuant to the terms of this Agreement shall be determined by a separate
arbitration proceeding and such dispute shall not be consolidated with other
disputes or included in any class proceeding.
6.7 Payment Of Arbitration Costs And Fees. The arbitrator shall award all costs
and expenses of the arbitration proceeding.
6.8 Real Property Collateral: Judicial Reference. Notwithstanding anything
herein to the contrary, no dispute shall be submitted to arbitration if the
dispute concerns indebtedness secured directly or indirectly, in whole or in
part, by any real property unless (a) the holder of the mortgage, lien or
security interest specifically elects in writing to proceed with the
arbitration, or (b) all parties to the arbitration waive any rights or benefits
that might accrue to them by virtue of the single action rule statute of
California, thereby agreeing that all indebtedness and obligations -of the
parties, and all mortgages, liens and ;security interests securing such
indebtedness and obligations, shall remain fully valid and enforceable. If any
such dispute is not submitted to arbitration, the dispute shall be referred to a
referee in accordance with California Code of Civil Procedure Section 638 et
seq., and this general reference 'agreement is intended to be specifically
enforceable in accordance with said Section 638. A referee with the
qualifications required herein for arbitrators shall be selected pursuant to the
AAA's selection procedures. Judgment upon the decision rendered by a referee
shall be entered in the court in which such proceeding has commenced in
accordance with California Code of Civil Procedure Sections 644 and 645.
6.9 Miscellaneous. To the maximum extent practicable, the AAA, the arbitrators
and the parties shall take all action required to conclude any arbitration
proceeding within 180 days of the filing of the dispute with the AAA. No
arbitrator or other party to an arbitration proceeding may disclose the
existence, content or results thereof, except for disclosures of information by
a party required in the ordinary course of its business, by applicable law or
regulation, or to the extent necessary to exercise any judicial review rights
set forth herein. If more than one agreement for arbitration by or between the
parties potentially applies to a dispute, the arbitration provision most
directly related to the Loan Documents or the subject matter of the dispute
shall control. This arbitration provision shall survive termination, amendment
or expiration of any of the Loan Documents or any relationship between the
parties.
IN WITNESS WHEREOF, Borrower and Bank have executed this Agreement as
of JANUARY 1, 2003.
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
By: /S/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and CEO
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇
Vice President of Finance/CFO
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇
Relationship Manager
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇