EXHIBIT 10.27
LOAN AND SECURITY AGREEMENT
DATED AS OF FEBRUARY 28, 2005
BETWEEN
MEDIVISION MEDICAL IMAGING LTD.,
AS BORROWER,
AND
OPHTHALMIC IMAGING SYSTEMS
AS LENDER
LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT, dated as of February 28, 2005 (this
"Agreement"), is entered into by and between MediVision Medical Imaging Ltd., an
Israeli corporation ("MediVision"), and Ophthalmic Imaging Systems, a California
corporation ("OIS").
RECITALS
WHEREAS, OIS has agreed to make one or more Term Advances to MediVision in
the aggregate principal sum, including interest, of up to two million dollars
($2,000,000), which shall be evidenced by and payable in accordance with the
Note executed by MediVision; and
WHEREAS, to secure all of its payment and performance obligations under the
Note and this Agreement, MediVision has agreed to pledge to and grant to OIS a
lien on and security interest in the Pledged Securities, upon the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of their mutual covenants and agreements
set forth hereinafter and intending to be legally bound, the parties agree as
follows:
ARTICLE I
DEFINED TERMS
1. Definitions. The following terms, when used in this Agreement, have the
following meanings, unless the context otherwise indicates:
"Affiliate" shall mean, with respect to any person or entity, any person or
entity directly or indirectly controlling, controlled by or under direct or
indirect common control with such other person or entity.
"Covering Amount" shall mean 2,409,000 shares of capital stock of OIS that
are owned by MediVision. This number of shares is based on the average closing
price of shares of capital stock of OIS during the period covering the last ten
(10) business days of February, 2005, which average closing price was $1.11,
discounted by 25%, such discounted amount being approximately equal, when
multiplied by 2,409,000, to the maximum aggregate principal sum available to
MediVision pursuant to this Agreement and the Note.
"Default" shall mean any of the following: (i) a failure by MediVision to
make any payment when due hereunder provided that such breach shall constitute a
Default only if it has not been cured by MediVision within fourteen (14) days of
written notice of such breach provided by OIS; (ii) a breach by MediVision of
any other covenant or other term or condition of this Agreement, unless such
breach is capable of being cured within fourteen (14) days, in which event such
breach shall constitute a Default only if it has not been cured by MediVision
within fourteen (14) days of written notice of such breach provided by OIS;
(iii) a breach by
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MediVision of any representation or warranty made by MediVision hereunder, other
than immaterial breaches; (iv) the filing by MediVision of a voluntary petition
in bankruptcy or under any similar insolvency law, the making of an assignment
for the benefit of creditors, or if any involuntary petition in bankruptcy or
under any similar insolvency law is filed against MediVision and such petition
is not dismissed within ninety (90) days after the filing thereof; (v) any
judgment, writ or similar process shall be entered into or filed against
MediVision for more than $25,000 and shall remain unvacated, unbonded or
unstayed for a period of sixty (60) days; (vi) MediVision shall default under
any obligation for the payment of money in excess of $25,000 to any lender; or
(vii) a material portion of the Pledged Securities shall have been impaired,
lost or destroyed.
"GAAP" shall mean generally accepted accounting principles.
"Governmental Body" shall mean any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
or any court, in each case, whether of the United States or any foreign
jurisdiction.
"Initial Term Advance" shall mean the Term Advance in the amount of
$1,150,000 disbursed to MediVision as of the date of this Agreement in
accordance with the Note and this Agreement.
"Interest" shall mean "Interest" under (and as defined in) the Note.
"Loan" shall mean the term loan, including interest, of $2,000,000, made by
OIS to MediVision, as evidenced by the Note and this Agreement and secured by
the Pledged Securities. As more fully described herein, OIS shall disburse the
Loan by making multiple Term Advances to MediVision subject to, and in
accordance with, Section 2.1(b) hereof.
"Maturity Date" shall have the meaning assigned to such term in Section
2.1(d).
"Note" shall have the meaning assigned to such term in Section 2.1(a).
"Pledged Securities" shall mean (i) the Covering Amount of shares of the
capital stock of OIS, which MediVision owns beneficially and of record, and (ii)
all Proceeds of such capital stock and all other securities or other property at
any time and from time to time receivable or otherwise distributed in respect of
or in exchange for any or all of such capital stock or additional securities, in
each case whether now owned or existing or hereafter acquired or created, and
howsoever arising, together, in each case, with the products and proceeds
thereof, all collections, payments and other distributions and realizations with
respect thereto, any and all other rights, powers, privileges, remedies and
interests of MediVision therein, thereto or thereunder, and any and all
renewals, substitutions, modifications and extensions of any and all of the
foregoing.
"Proceeds" shall mean (i) "proceeds", as such term is defined in the UCC
and (ii) whatever is received when Pledged Securities or Proceeds are sold,
exchanged, collected or otherwise disposed of, both cash and non-cash, including
the proceeds of insurance payable by reason of loss of or damage to Pledged
Securities or Proceeds.
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"Secured Obligations" shall mean the Loan, the obligations of MediVision
under the Note (including, without limitation, Interest and principal
thereunder) and under this Agreement, whether on account of principal (and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
MediVision whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding), reimbursement obligations, fees, indemnities,
costs, expenses, or otherwise.
"Term Advances" shall have the meaning assigned to such term in Section
2.1(b). All of the Term Advances, once disbursed in accordance with said
Section, shall be deemed part of the Loan, which is owing by MediVision to OIS
pursuant to the terms of this Agreement and the Note.
"Termination Date" shall mean the earliest to occur of (i) the Maturity
Date, (ii) the date that OIS demands payment of the Secured Obligations after a
Default, and (iii) the date that MediVision prepays in full all of the Secured
Obligations pursuant to the terms of this Agreement and the Note.
"UCC" shall mean the Uniform Commercial Code of the State of California as
in effect on the date hereof and as amended from time to time hereafter.
ARTICLE II
TERMS AND CONDITIONS OF LOAN
2.1 Secured Loan.
(a) Structure of Loan; Secured Note. On the date hereof, OIS will make
the Loan to MediVision, subject to the terms and conditions set forth in this
Agreement. MediVision's obligation to repay the Loan will be evidenced by a term
promissory note in substantially the form attached hereto as Exhibit A (the
"Note") and will be secured by the Pledged Securities as provided herein.
(b) Term Advances. OIS agrees, subject to the terms and conditions of
this Agreement, to disburse the Loan to MediVision by way of multiple term
advances ("Term Advances") from time to time from the date hereof until the
Termination Date. OIS shall have no obligation to make a Term Advance if: (i)
after giving effect to such requested Term Advance, the outstanding aggregate
principal balance, including interest, of the Term Advances would exceed
$2,000,000, or (ii) OIS determines, in its sole and absolute discretion, that it
does not have the funds available or accessible to it or obtainable by it in
order make any such advance. OIS need not furnish MediVision with any proof or
evidence supporting OIS' determination not to make any Term Advance. MediVision
must provide OIS with at least one business day's prior notice as to any
requested Term Advance, specifying the date of the requested Term Advance and
the amount thereof. Each Term Advance shall be in a minimum amount of $50,000 or
in any lesser amount as the parties shall agree and any increases thereof must
be in increments of $5,000. Each Term Advance made by OIS in accordance herewith
shall be made by wire transfer to an account designated in writing by MediVision
within three (3) business days of the above notice. Concurrently herewith, OIS
has made the Initial Term Advance to MediVision.
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(c) Interest. The Loan shall bear Interest and be payable in
accordance with the terms set forth in the Note.
(d) Loan Repayment. The Loan and all of the other Secured Obligations
shall be due and payable in full on February 28, 2006 (the "Maturity Date")
unless payable earlier on any Termination Date or otherwise in accordance with
the terms of this Agreement or the Note.
(e) Prepayments. Prepayments are permitted in accordance with the
terms of the Note.
2.2 Security Interest.
(a) Security Interest. This Agreement constitutes a "security agreement"
within the meaning of the UCC. As security for the payment and performance of
the Secured Obligations, MediVision hereby pledges, hypothecates, assigns,
transfers, sets over and delivers to OIS, and grants a security interest to OIS
in all of MediVision's right, title, estate, claim and interest in the Pledged
Securities. MediVision agrees that at any time and from time to time, at its
expense, MediVision will promptly execute and deliver all further instruments
and documents (including, without limitation, financing statements and
continuation statements), and take all further action that OIS may request, in
order to perfect and protect the security interests granted or purported to be
granted hereby and to enable OIS to exercise and enforce its rights and remedies
hereunder with respect to any Pledged Securities.
(b) Delivery of Pledged Securities. MediVision shall deliver to OIS the
certificates respecting the Pledged Securities accompanied by undated blank
stock powers executed in blank, and by such other instruments or documents as
OIS shall reasonably request provided that such other instruments and documents
do not impose any additional duties, obligations or liabilities on MediVision in
any material respect.
(c) Registration in Nominee Name; Denominations. OIS shall have the right
to hold the certificates representing any Pledged Securities in its own name,
the name of its nominee or in the name of MediVision, endorsed or assigned in
blank or in favor of OIS.
(d) Financing Statements. MediVision hereby authorizes OIS to file UCC-1
financing statements and any amendments thereto or continuations thereof, in all
cases, necessary to perfect the security interest and lien granted by MediVision
in favor of OIS hereunder with regard to the Pledged Securities, and MediVision
will pay the costs of filing the same in all applicable public offices.
(e) Impairment of Pledged Securities. No impairment of, injury to, or loss
or destruction of any of the Pledged Securities shall relieve MediVision of any
of the Secured Obligations, except as may be specifically provided otherwise
herein.
(e) Return of Pledged Securities. Upon payment in full of the Loan and any
other amounts due hereunder and full satisfaction of all other Secured
Obligations, OIS shall release its security interest in, return to MediVision
all Pledged Securities hereunder and shall file all termination statements
reasonably deemed necessary by MediVision with respect thereto at the sole cost
and expense of MediVision.
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(f) Further Assurances. MediVision agrees that at any time and from time to
time, at its expense, MediVision will promptly execute and deliver all further
instruments and documents, and take all further action that OIS may reasonably
request, in order to perfect and protect the security interests granted or
purported to be granted hereby and to enable OIS to exercise and enforce its
rights and remedies hereunder with respect to any Pledged Securities.
(g) OIS Appointed Attorney-in-Fact. Effective upon and during the
continuance of a Default, MediVision hereby irrevocably appoints OIS as
MediVision's attorney-in-fact, with full authority in the place and stead of
MediVision and in its name or otherwise, from time to time in OIS' discretion
and without notice to MediVision, to take any action and to execute any
instrument which OIS may deem reasonably necessary or advisable to accomplish
the purposes of this Agreement. Without limiting the generality of the
foregoing, OIS shall have the right and power to receive, endorse and collect
all checks and other orders for the payment of money made payable to MediVision
representing any dividend or other distribution payable in respect of the
Pledged Securities or any part thereof and to give full discharge for the same.
(h) OIS Right to Perform. Upon the occurrence of a Default, but only
following termination of the respective periods for curing same, and provided
such Default was not cured, OIS may exercise the power of attorney granted to it
in Section 2.2(h) (but shall not be obligated and shall have no liability to any
person for failure to) and itself perform, or cause performance of, this
Agreement, and the reasonable expenses of OIS incurred in connection therewith
shall be payable by MediVision.
(i) MediVision's Continuing Rights. Notwithstanding the security interest
in the Pledged Securities granted to and created in favor of OIS under this
Agreement, MediVision shall have the right at any time during the term of this
Agreement to sell or otherwise dispose of, in the ordinary course of
MediVision's business, any shares of capital stock of OIS owned by MediVision
that are not part of the Pledged Securities. In the event of any such sale,
public or private, by MediVision of the capital stock of OIS, MediVision shall
immediately apply no less than 50% of the proceeds of such sale to a prepayment
of the Loan, which prepayment shall not exceed the outstanding principal amount
of the Loan at the time of such prepayment.
(j) Distribution; Voting Rights.
(i) Unless and until a Default shall have occurred, MediVision shall
be entitled to receive and retain dividends and distributions and to exercise
any and all voting and/or consensual rights and powers accruing to the owner of
the Pledged Securities or any part thereof for any purpose not inconsistent with
the terms hereof or with any of the organizational documents of MediVision.
(ii) Upon the occurrence of a Default, but only following termination
of the respective periods for curing same, and provided such Default was not
cured, all rights of MediVision to (A) receive and retain distributions and (B)
exercise the voting and/or consensual rights and powers shall cease and all such
rights shall thereupon become vested in OIS, which shall have the sole and
exclusive right and authority to exercise such voting and/or consensual rights;
provided, however, that to the extent any governmental consents or filings are
required for the exercise by OIS of any of the foregoing rights and powers, OIS
shall refrain from exercising
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such rights or powers until the making of such required filings, the receipt of
such consents and the expiration of all related waiting periods.
(k) Remedies Upon Default. Upon the occurrence of any Default, but only
following termination of the respective periods for curing same, and provided
such Default was not cured, OIS may: (i) elect not to make any further Term
Advances to MediVision, or (ii) declare the Loan and the other Secured
Obligations to be due and payable in full immediately, whereupon all of the
Secured Obligations shall become forthwith due and payable. , without
presentment, notice of dishonor, protest or further notice of any kind, all of
which MediVision expressly waives. In addition, OIS may exercise and enforce any
and all rights and remedies available upon default to a secured party under the
UCC, by other applicable law or as set forth under the Note or this Agreement.
Without limiting the generality of the foregoing, upon the occurrence of a
Default, but only following termination of the respective periods for curing
same, and provided such Default was not cured, OIS may (i) require MediVision
to, and MediVision hereby agrees that it will at its sole expense and upon
request of OIS, forthwith assemble all or any part of the Pledged Securities as
directed by OIS and make it available to OIS at a place to be designated by OIS;
(ii) without notice, take possession of all or part of the Pledged Securities
and, for that purpose, OIS may enter upon any premises on which the Pledged
Securities are located and remove the Pledged Securities therefrom; and (iii)
without notice except as specified below, sell or otherwise dispose of all or
any part of the Pledged Securities in one or more parcels at one or more public
or private sales, or sales at any broker's board or on any securities exchange
or at any of OIS' offices or elsewhere, for cash, on credit or for future
delivery, and at such price or prices and upon such other terms as OIS may deem
commercially reasonable. MediVision agrees that, at least five (5) business
days' notice by OIS to MediVision of the proposed action shall constitute fair
and reasonable notice thereofOIS 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. OIS may apply the Pledged Securities to payment of the Secured
Obligations in such order and manner as OIS may elect in its sole discretion,
consistent with applicable law MediVision shall remain liable for any deficiency
if the proceeds of any sale or disposition of the Pledged Securities are
insufficient to pay all of the Secured Obligations in full. MediVision waives
any rights of marshaling in respect of the Pledged Securities. MediVision hereby
irrevocably waives, in the event OIS seeks to take possession of any or all of
the Pledged Securities by judicial process, any bonds and any surety or security
relating thereto that may be required by applicable law as an incident to such
possession and waives any demand for possession prior to the commencement of any
such suit or action.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MEDIVISION
MediVision hereby represents and warrants to OIS that the representations
and warranties in the following paragraphs of this Article III are all true and
correct:
3.1 Power and Capacity; Authorization. MediVision is a corporation duly
organized and validly existing and in good standing under the laws of Israel.
MediVision has full corporate
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power and authority to conduct its business as presently conducted by it and to
own, lease or operate its assets and properties as presently owned, leased and
operated by it and to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by MediVision's board of directors or other governing body
and no other corporate proceedings by MediVision are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by MediVision and, assuming
this Agreement constitutes a legal, valid and binding obligation of each of the
other parties hereto, constitutes a legal, valid and binding agreement of
MediVision, enforceable against MediVision in accordance with its terms
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and similar laws affecting creditors'
rights, and, with respect to the remedy of specific performance, equitable
doctrines applicable thereto).
3.2 No Conflicts. The execution, delivery and performance of this Agreement
by MediVision will not (a) constitute a breach or violation of any provisions of
articles of incorporation or bylaws or comparable charter documents, (b) result
in a violation of any law, rule, ordinance, regulation, order, judgment or
decree applicable to or by which any of them or any of their respective assets
or properties is bound, or (c) conflict with or result in a breach of or default
(or any event which, with the giving of notice or lapse of time or both, would
constitute a breach or default) under any mortgage, lien, lease, license,
permit, agreement, contract or instrument to which any of them is a party or by
which any of them or any of their respective assets or properties is bound,
which conflict, breach or default would have a material adverse effect on the
ability of MediVision to perform its obligations under this Agreement.
3.3 Pledged Securities. The Pledged Securities are duly authorized, validly
issued, fully paid and non-assessable. There are no restrictions on the transfer
of the Pledged Securities other than as a result of this Agreement or applicable
securities laws or the regulations promulgated thereunder.
3.4 Financial Statements. As of the date hereof, MediVision shall have
delivered to OIS copies of all of its financial statements prepared during the
prior three-year period. Such financial statements of MediVision have been
prepared in accordance with GAAP applied on a consistent basis during the
periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be condensed)
and fairly present in all material respects the financial position of MediVision
as of the dates thereof and the results of operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
3.5 No Undisclosed Liabilities. Except as disclosed in the financial
statements or on Schedule 3.5 hereto, to its knowledge, MediVision has not
incurred since March 1st, 2005 any liabilities, obligations, claims or losses
(whether liquidated or unliquidated, secured or unsecured, absolute, accrued,
contingent or otherwise) that would have a material adverse effect on the
ability of MediVision to perform its obligations under this Agreement.
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3.6 Indebtedness. Except as disclosed in the financial statements or on
Schedule 3.6 hereto sets forth as of the date hereof all outstanding secured and
unsecured Indebtedness of MediVision, or for which MediVision has commitments.
For the purposes of this Agreement, "Indebtedness" shall mean (a) any
liabilities for borrowed money or amounts owed in excess of $10,000 (other than
trade accounts payable incurred in the ordinary course of business), (b) all
guaranties, endorsements and other contingent obligations in respect of
Indebtedness of others, whether or not the same are or should be reflected in
the balance sheet of MediVision (or the notes thereto), except guaranties by
endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business; and (c) the present value of
any lease payments in excess of $5,000 due under leases required to be
capitalized in accordance with GAAP. Except as disclosed on Schedule 3.5,
MediVision is not in default with respect to any Indebtedness.
3.7 Certain Fees. No brokers, finders or financial advisory fees or
commissions will be payable by MediVision with respect to the transactions
contemplated by this Agreement.
3.8 Disclosure. Neither this Agreement nor the Schedules hereto contain any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements made herein or therein, in the light of the
circumstances under and at the time at which they were made herein or therein,
not misleading.
3.9 Ownership Of Pledged Securities. MediVision has good and marketable
title to the Pledged Securities, free and clear of any liens.
3.10 Actions Pending. Except as disclosed in the financial statements or on
Schedule 3.10, (a) there is no action, suit, claim, investigation or proceeding
pending or, to the knowledge of MediVision, threatened against MediVision which
questions the validity of this Agreement or the transactions contemplated hereby
or any action taken or to be taken pursuant hereto or thereto, (b) there is no
action, suit, claim, investigation or proceeding pending or, to the knowledge of
MediVision, threatened, against or involving the Pledged Securities, and (c)
there are no outstanding orders, judgments, injunctions, awards or decrees of
any court, arbitrator or Governmental Body against MediVision which could result
in a material adverse effect on the ability of MediVision to perform its
obligations under this Agreement.
3.11 Compliance with Law. Except as disclosed in the financial statements
or on Schedule 3.11 hereto, the business of MediVision has been and is presently
being conducted in accordance with all applicable federal, state and local
governmental laws, rules, regulations and ordinances, domestic and foreign,
except where the conduct of the business of MediVision in violation of any of
such laws, rules, regulations and ordinances could not reasonably result in a
material adverse effect on the ability of MediVision to perform its obligations
under this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF OIS
OIS hereby represents and warrants to MediVision as follows:
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4.1 Power and Capacity; Authorization. OIS is a corporation duly organized,
validly existing and in good standing under the laws of the State of California.
OIS has full corporate power and authority to conduct its business as presently
conducted by it and to own, lease or operate its assets and properties as
presently owned, leased and operated by it and to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the Board of
Directors of OIS, and no other corporate proceedings by OIS are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by OIS, and,
assuming this Agreement constitutes a legal, valid and binding obligation of the
other party hereto, constitutes a legal, valid and binding agreement of OIS,
enforceable against OIS in accordance with its terms (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and similar laws affecting creditors' rights, and, with respect to
the remedy of specific performance, equitable doctrines applicable thereto).
4.2 No Conflicts. The execution, delivery and performance of this Agreement
by OIS will not (a) constitute a breach or violation of any provisions of OIS'
Articles of Incorporation or Bylaws, (b) result in a violation of any law, rule,
ordinance, regulation, order, judgment or decree applicable to or by which OIS
or any of its assets or properties is bound, or (c) conflict with or result in a
breach of or default (or any event which, with the giving of notice or lapse of
time or both, would constitute a breach or default) under any mortgage, lien,
lease, license, permit, agreement, contract or instrument to which OIS is a
party or by which OIS or any of its assets or properties is bound, which
conflict, breach or default would have a material adverse effect on the ability
of OIS to perform its obligations under this Agreement.
ARTICLE V
COVENANTS
MediVision covenants to OIS as follows:
5.1 Use of Loan Proceeds. MediVision shall use the proceeds from the Loan
for to repay indebtedness for borrowed money.
5.2 Priority of Liens, Etc. The security interest granted to OIS hereby
shall have priority over any other liens or restrictions as to the Pledged
Securities, and MediVision will defend its good title in the Pledged Securities
against the claims and demands of all persons claiming any lien in the Pledged
Securities that is superior to the security interest granted to OIS hereby.
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ARTICLE VI
MISCELLANEOUS
6.1 Governing Law. This Agreement and the Note shall be governed by, and
construed in accordance with, the laws of the State of California (without
giving effect to conflicts of law principles thereof).
6.2 Remedies Cumulative. The remedies provided herein and in the Note shall
be cumulative and shall not preclude assertion by any party hereto of any other
rights or the seeking of any other remedies against any other party hereto.
6.3 Brokerage. Each party hereto will indemnify and hold harmless the other
parties against and in respect of any claim for brokerage or other commission
relative to this Agreement, the Note or to the transactions contemplated hereby
or thereby, based in any way on agreements, arrangements or understandings made
or claimed to have been made by such party with any third party.
6.4 Severability. Whenever possible, each provision of this Agreement and
the Note shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement or the Note shall
be prohibited by or invalid under applicable law, such provisions shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement or the Note, as applicable.
6.5 Notices. Notices required under this Agreement or the Note shall be
deemed to have been adequately given if delivered in person or sent to the
recipient at its address (or facsimile number, as the case may be) set forth on
the signature page hereto or such other address as such party may from time to
time designate in writing by certified mail (return receipt requested),
facsimile or overnight courier in the manner provided in this Section 6.5.
6.6 Amendments and Waivers.
(a) Any provision of this Agreement may be amended or waived if, but
only if, such amendment or waiver is in writing and signed, in the case of an
amendment, by both parties hereto, or in the case of a waiver, by the party
against whom the waiver is to be effective.
(b) No waiver by a party of any default, misrepresentation or breach
of a warranty or covenant hereunder or under the Note, whether intentional or
not, shall be deemed to extend to any prior or subsequent default,
misrepresentation or breach of a warranty or covenant hereunder or affect in any
way any rights arising by virtue of any prior or subsequent occurrence. No
failure or delay by a party hereto in exercising any right, power or privilege
hereunder or under the Note shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
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6.7 Survival. All representations and warranties made by the parties
contained in this Agreement and the Note and the respective covenants,
agreements and obligations of the parties under this Agreement and the Note
shall survive the execution and delivery of this Agreement.
6.8 Entire Understanding. This Agreement and the Note express the
entire understanding of the parties and supersede all prior and contemporaneous
agreements and undertakings of the parties with respect to the subject matter
hereof and thereof.
6.9 Legal Fees and Expenses. Legal fees for OIS incurred in connection
with this Agreement shall be paid by MediVision to OIS upon the execution and
delivery of this Agreement, to be paid out of the initial Term Advance.
Furthermore, in the event of any action at law, suit in equity or arbitration
proceeding in relation to this Agreement or the Note, the prevailing party shall
be paid by the other party a reasonable sum for attorneys' fees and expenses
incurred by the prevailing party therein.
6.10 Counterparts. This Agreement may be executed in counterparts and
the signatures delivered by telecopy on the manner provided in Section 6.5, each
of which shall be deemed to be an original but which taken together shall
constitute one agreement with the same effect as of the signatures were upon the
same instrument and delivered in person.
6.11 Assignment; No Third-Party Beneficiaries.
(a) Except as otherwise expressly provided herein, this
Agreement and the Note and the rights hereunder and thereunder shall not be
assignable or transferable, except to an Affiliate, by any party without the
prior written consent of all the other parties hereto; provided that, if such
assignment or transfer is consented to, such assignee or transferee expressly
assumes in writing all of the assigning party's obligations hereunder or
thereunder, as applicable. Subject to the preceding sentence, this Agreement and
the Note shall be binding upon, inure to the benefit of and be enforceable by
the parties hereto and their respective successors and assigns.
(b) This Agreement and the Note are for the sole benefit of
the parties hereto and thereto and their respective successors and assigns and
nothing herein or therein expressed or implied shall give or be construed to
give to any Person, other than the parties hereto and such successors and
permitted assigns, any legal or equitable rights hereunder or thereunder.
6.12 Interpretation. This Agreement and the Note, including any exhibits,
addenda, schedules and amendments, has been negotiated at arm's length and
between persons sophisticated and knowledgeable in the matters dealt with in
this Agreement and the Note. Each party has been represented by experienced and
knowledgeable legal counsel. Accordingly, any rule of law or legal decision that
would require interpretation of any ambiguities in this Agreement and the Note
against the party that has drafted it is not applicable and is waived.
6.13 Titles and Subtitles. The titles and subtitles used in this Agreement
and the Note are used for convenience only and are not to be considered in
construing or interpreting this Agreement or the Note.
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6.14 Waiver of Trial by Jury. EACH PARTY HERETO WAIVES THE RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING, WHETHER IN CONTRACT OR TORT, AT LAW OR IN
EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTE OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK.)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
MEDIVISION MEDICAL IMAGING LTD.
By:
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Name:
-----------------------------------------------
Title:
----------------------------------------------
Address: ▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ Israel
OPHTHALMIC IMAGING SYSTEMS
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: CEO and CFO
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Jenkens & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO LOAN AND SECURITY AGREEMENT]
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EXHIBIT A
FORM OF NOTE
(see attached)
15
SCHEDULE 3.5
DISCLOSED LIABILITIES OF MEDIVISION
None
16
SCHEDULE 3.6
INDEBTEDNESS OF MEDIVISION
None
17
SCHEDULE 3.10
ACTIONS PENDING AGAINST MEDIVISION
None
18
SCHEDULE 3.11
MEDIVISION VIOLATIONS OF APPLICABLE LAW
None
19