EXHIBIT 10.25
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT entered into as of the _____ day of
___________ 2001, by and between General Electric Capital Business Asset Funding
Corporation, a Delaware corporation, whose address is ▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Lender") and U.S. Laboratories, Inc., a Delaware
corporation, whose address is ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Borrower").
WHEREAS, Lender has agreed to make a commercial loan or loans to Borrower;
and
WHEREAS, as a condition to making the loans, and in order to secure the
repayment thereof, Lender has required Borrower to execute and deliver to Lender
this Loan and Security Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Borrower and Lender agree as follows:
1. Creation of Security Interest. As security for the due and punctual
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payment of any and all of the present and future obligations of the borrower to
Lender, whether direct or contingent or joint or several, Borrower hereby
conveys, assigns and grants to Lender a continuing security interest in all of
Borrower's rights, title and interests in and to the equipment described in the
Supplemental Security Agreement(s) entered into pursuant to this Loan and
Security Agreement from time to time ("Equipment") including all present and
future additions, attachments and accessories thereto, all substitutions
therefor and replacements thereof and all proceeds thereof, including all
proceeds of insurance (such Equipment and property hereinafter called
"Collateral").
2. The Loans.
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(a) Subject to the terms and conditions of this Loan and Security
Agreement, Lender agrees to make a loan or loans to Borrower. The maximum
principal amount of any loan or loans to be made by Lender to Borrower shall be
within Lender's discretion, subject to the exercise of Lender's reasonable
business judgment, and shall be as stated in the loan commitment letter issued
by lender to Borrower, or in the event a commitment letter is not issued by
Lender, in Lender's internal credit approval (each such loan or loans shall be
referred to as "the Loan Amount").
(b) The Loan Amounts shall be repaid by Borrower as a term loan or term
loans ("Term Loan"). The Term Loan shall be evidenced by a promissory note or
notes in the form attached hereto as Exhibit "A" ("Term Note"). The payment
provisions of each Term Note shall be stated therein.
(c) If requested by Borrower, and in accordance with the terms and
conditions of Section 3 hereof, Lender shall make interim fundings to Borrower
of a Term Loan as partial advances of the Loan Amount ("Interim Loans"). The
Interim Loans shall either be for the payment of the acquisition cost of any
items of Equipment delivered and accepted by Borrower prior to the expiration
date of Lender's loan commitment to Borrower ("Commitment Expiration date") or
to fund progress payments to the vendor or manufacturer of the Equipment, if the
making of progress payments was agreed to by Lender in its commitment or
approval to make the loan or loans to Borrower. The Interim Loans shall be
evidenced by promissory notes in the form attached hereto as Exhibit "B"
("Interim Note"). Interest on all Interim Loans shall be payable as provided
therein. The principal amount due under the Interim Loans shall be due as
provided in the Interim Notes, at which time, provided no Event of Default
hereunder has occurred and is continuing or event which with the passing of time
or giving of notice or both would become an Event of Default hereunder has
occurred and is continuing. Lender shall consolidate all Interim Loans and
convert them to a Term Loan evidenced by a Term Note or Notes. Whether or not a
Term Loan is evidenced by one or more Term Notes shall be agreed between Lender
and Borrower, or in the absence of such an agreement, as decided by Lender, in
the exercise of its reasonable business judgment.
(d) In the event that the amount loaned pursuant to the Interim Loans is
less than the Loan Amount, subject to Borrower's compliance with the terms and
conditions of this Loan and Security Agreement (including the satisfaction of
the conditions of borrowing set forth in Section 7 of this Loan and Security
Agreement including but not limited to providing Lender with a description of
the items of Equipment), Lender shall disburse to Borrower the balance of the
Loan Amount on the same date that the Interim Loans are converted into a term
loan.
3. Method for Borrowing On Interim Loan. Borrower shall give Lender at
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least five (5) business days written notice of a request for the disbursement of
an Interim Loan ("Request"), specifying the date on which the Interim Loan is to
be disbursed. Such Request shall be in the form attached hereto as Exhibit "C".
Such Request shall be accompanied by an original copy of the invoice or invoices
to be paid from the Interim Loan. Such Request shall constitute a representation
and warranty by the Borrower that (i) as of the date of the Request no Event of
Default or event which with the passing of time or the giving of notice or both
would constitute an Event of Default hereunder has occurred and is continuing
and (ii) in the event items of Equipment have been delivered to Borrower,
Borrower has unconditionally accepted the Equipment from the vendor thereof.
Subject to the conditions of this Loan and Security Agreement, Lender shall
disburse the Interim Loan to the invoicing party, or if Borrower shall have paid
the amount of such invoice, Lender shall reimburse Borrower, upon receipt of
proof of payment from Borrower.
4. Cross Collateral/Cross Default. All Collateral shall secure the payment
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and performance of all of Borrower's liabilities and obligations to Lender
hereunder and under any of the loan documents relating hereto including, but not
limited to all Interim Notes and all Term Notes (the Loan and Security
Agreement, the Interim Notes, the Term Notes, the Supplemental Security
Agreement(s) and all other loan documents may be referred to herein collectively
as the "Loan Documents"). Lender's security interest in the Collateral shall not
be
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terminated until and unless all of Borrower's obligations to Lender under any
of the Loan Documents are fully paid and performed. The occurrence of an event
of default under any other of the Loan Documents shall be deemed to be an Event
of Default hereunder and an Event of Default hereunder shall be deemed to be an
event of default under any other of the Loan Documents.
5. Representations and Warranties. Borrower hereby represents and
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warrants as follows:
(a) Power and Authorization. Borrower has the full power and (corporate)
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authority to execute deliver and perform Borrower's obligations under the Loan
Documents. The execution and delivery of the Loan Documents have been authorized
by all requisite corporate (or partnership) action on the part of Borrower. The
execution, delivery and performance of the Loan Documents have not constituted
and will not constitute a breach, default or violation of or under Borrower's
articles of incorporation, by-laws (partnership agreement), or any other
agreement, indenture, contract, lease, law, order, decree, judgment, or
injunction to which Borrower is a party or may be bound and have not resulted
and will not result in the creation of any lien upon the Equipment pursuant to
any agreement, indenture, lease, contract or other instrument to which Borrower
is a party, except the lien created by this Loan and Security Agreement.
(b) Existence. If Borrower is a corporation, Borrower (i) is duly
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incorporated, validly existing and in good standing under the laws of its state
of incorporation, (ii) has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry out its business as now
conducted, and (iii) is duly qualified to transact business as now conducted,
and (iv) is duly qualified to transact business as a foreign corporation in each
jurisdiction where the Equipment will be located and in the jurisdiction where
its principal place of business is located. If Borrower is a partnership,
Borrower (i) has been duly formed as a (limited or general) partnership under
the laws of the state of its organization, (ii) is comprised of the general
partners) listed on the Schedule of Partners attached to this Loan and Security
Agreement, and (iii) is in good standing under the laws of the state of its
formation.
(c) Binding Effect. This Loan and Security Agreement constitutes the
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valid and binding agreement of the Borrower; the Interim Notes and the Term
Note, when executed and delivered, will constitute the valid and binding
obligations of the Borrower; and the Loan Documents are enforceable in
accordance with their terms except as (i) the enforceability thereof may be
limited by the bankruptcy laws, and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(d) Litigation. There is no action, suit or proceeding pending against,
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or to the knowledge of the Borrower, threatened against or affecting the
Borrower, before any court or arbitrator or any governmental body, agency or
official which has not been previously disclosed to the Lender in writing and in
which there is a reasonable possibility of an adverse decision which could
materially adversely affect the business, financial condition or results of
operations
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of the Borrower or which would in any manner draw into question the validity of
any of the Loan Documents.
(e) Filing of Tax Returns. The Borrower has filed all tax returns
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required to have been filed and has paid all taxes shown to be due and payable
on such returns, including interest and penalties, and all other taxes which are
payable by it, to the extent the same have become due and payable. The Borrower
knows of no proposed tax assessment against it and all tax liabilities of the
Borrower are adequately provided for.
(f) Title. The Borrower has or shall have at the time it executes the
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Term Note good and indefeasible title to the Collateral free and clear of all
liens other than the Lender's lien.
(g) Compliance with Law. The business and operations of the Borrower have
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been and are being conducted in accordance with all applicable laws, rules and
regulations, other than violations which could not (either individually or
collectively) have a material adverse effect on the financial condition or
operations of the Borrower.
(h) Full Disclosure. All documents, records, instruments, certificates,
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statements (including, but not by way of limitation, financial statements of
Borrower) and information provided to Lender by Borrower in connection with this
Loan and Security Agreement are true and accurate in all material respects and
do not contain any untrue statement, or fail to contain any statement of a
material fact necessary to make the statements contained herein or therein not
misleading. There is no fact known to the Borrower that Borrower has not
disclosed in writing which could materially and adversely affect the financial
condition or operations of Borrower.
(i) Security Interest. The security interest granted to Lender hereunder
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is a valid, first priority security interest in the Collateral and has been, or
promptly after the execution of the Supplemental Security Agreement describing
the Collateral will be, perfected in accordance with the requirements of all
states in which any item of the Collateral is located.
(j) Personal Property. Under the laws of the state(s) in which the
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Collateral is to be located, the Collateral is deemed to consist solely of
personal property.
(k) Pollution and Environmental Control. Borrower has obtained all
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permits, licenses and other authorizations which are required under, and is in
material compliance with, all federal, state, and local laws and regulations
relating to pollution, reclamation, or protection of the environment, including
laws relating to emissions, discharges, releases or threatened releases of
pollutants, contaminants, or hazardous or toxic materials or wastes into air,
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants or hazardous or toxic materials or wastes. Borrower
shall maintain all such permits, licenses, and authorizations current.
6. Covenants. Borrower hereby agrees and covenants as follows:
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(a) Payment. Borrower shall pay the indebtedness secured hereby as
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provided herein and in the Interim Notes and Term Notes.
(b) Location of Collateral. Borrower will keep the Collateral located at
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the location or locations stated on the Supplemental Security Agreements,
provided, however, that Borrower may change the location of the Collateral with
Lender's prior written consent.
(c) No Liens. Except for the security interest granted hereby or under any
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other agreement under which Lender is the secured party, whether as mortgagee,
beneficiary or otherwise, Borrower shall keep the Collateral free and clear of
any security interest, lien or encumbrance of any kind and Borrower shall not
sell, assign (by operation of law or otherwise) exchange or otherwise dispose of
any of the Collateral.
(d) Insurance. Borrower shall procure and continuously maintain and pay
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for (a) all risk physical damage and property insurance covering loss or damage
to the equipment for not less than the full replacement value thereof naming
Lender as loss payee and (b) bodily injury and property damage combined single
limit liability insurance, all in such amounts and against such risks and
hazards as are reasonably required by Lender, with insurance companies and
pursuant to contracts or policies and with deductibles satisfactory to Lender.
All contracts and policies shall include provisions for the protection of Lender
notwithstanding any act or neglect of or breach or default by Borrower, shall
provide for payment of insurance proceeds to Lender, shall provide that they may
not be modified, terminated or canceled unless Lender is given at least thirty
(30) days' advance written notice thereof, and shall provide that the coverage
is "primary coverage" for the protection of Borrower or Lender notwithstanding
any other coverage carried by Lender protecting against similar risks. Borrower
shall promptly notify any appropriate insurer and Lender of each and every
occurrence, which may become the basis of a claim or cause of action against the
insured and provide Lender with all data pertinent to such occurrence. Borrower
shall furnish Lender with certificates of such insurance or copies of policies
upon request and shall furnish Lender with renewal certificates not less than
thirty (30) days prior to the renewal date. Proceeds of all insurance are
payable first to Lender to the extent of its interest.
(e) Financing Statements. At the request of Lender, Borrower will join
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Lender in executing one or more financing statements pursuant to the Uniform
Commercial Code and other documents deemed necessary by Lender under applicable
law to record or perfect its security interest in the Collateral, including
continuation statements, in form satisfactory to Lender and will pay the cost of
filing the same in all public offices wherever filing is deemed by Lender to be
necessary or desirable. Borrower hereby authorizes Lender, in such jurisdictions
where such action is authorized by law, to effect any such recordation or filing
of financing statements or other documents without Borrower's signature thereto.
(f) Change of Name or Address. Borrower will immediately notify Lender in
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writing of any change in its place of business or the adoption or change of any
tradename or fictitious business name, and will upon request of Lender, execute
any additional financing statements or other similar documents necessary to
perfect or maintain its security interest.
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(g) Use of Equipment, Maintenance. Borrower will cause the Equipment to
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be used in a careful and proper manner, will comply with and conform to all
governmental laws, rules and regulations relating thereto, and will cause the
Equipment to be operated in accordance with the manufacturer's or supplier's
instructions or manuals and only by competent and duly qualified personnel.
Borrower will cause the Equipment to be kept and maintained in good repair,
condition and working order and will furnish all parts, replacements,
mechanisms, devices and servicing required therefor so that the value, condition
and operating efficiency thereof will at all times be maintained and preserved,
normal wear and tear excepted. All such repairs, parts, mechanisms, devices and
replacements shall immediately, without further act, become part of the
Equipment and subject to the security interest created by this Loan and Security
Agreement. Borrower will not make any improvement, change, addition or
alteration to the Equipment if such improvement, change, addition or alteration
will impair the originally intended function or use of the Equipment or impair
the value of the Equipment as it existed immediately prior to such improvement,
change, addition or alteration. Any part added to the Equipment in connection
with any improvement, change, addition or alteration shall immediately, without
further act, become part of the Equipment and subject to the security interest
created by this Loan and Security Agreement.
(h) Inspection. Lender may at any reasonable time or times inspect the
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Equipment and may at any reasonable time or times inspect the books and records
of Borrower.
(i) Taxes. Borrower shall promptly pay, when due, all charges, fees,
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assessments and taxes (excluding all taxes measured by Lender's income) which
may now or hereafter be imposed upon the ownership, leasing, possession, sale or
use of the Collateral.
(j) Performance by Lender. If Borrower fails to perform any agreement or
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obligation contained herein, Lender may itself perform, or cause the performance
of such agreement or obligation. Borrower will pay, or reimburse Lender, on
demand, for any and all fees, including attorneys' fees, costs and expenses of
whatever kind or nature incurred by Lender in connection with (i) the creation,
preservation and protection of Lender's security interest in the Collateral,
including, without limitation, all fees and taxes in connection with the
recording or filing of instruments and documents in public offices, (ii)
payments or discharge of any taxes or liens upon or in respect of the
Collateral, (iii) premiums for insurance with respect to the Equipment and (iv)
this Loan and Security Agreement and with protecting, maintaining or preserving
the Collateral and Lender's interests therein, whether through judicial
proceedings or otherwise, or in connection with defending or prosecuting any
actions, suits or proceedings arising out of or related to the Loan and Security
Agreement and the Loan Documents or in connection with any debt restructuring,
loan workout negotiations or bankruptcy or insolvency case or proceedings. All
such amounts shall constitute obligations of Borrower secured by the Collateral.
In the event that Borrower fails to perform any of its agreements contained
herein, Borrower will, on demand, reimburse Lender for all such expenditures,
together with interest thereon from the date of such expenditure until fully
reimbursed at the rate of two percent (2%) per month on the outstanding balance
of such expenditures or the highest rate permitted by law, whichever is less.
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(k) Power of Attorney. Borrower hereby irrevocably appoints Lender
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Borrower's attorney-in-fact, with full authority in the place and stead of
Borrower and in the name of Borrower or otherwise, from time to time in the
Lender's discretion, to take any action and to execute any instrument which
Lender may deem necessary or advisable to accomplish the purposes of this Loan
and Security Agreement, including, without limitation: (i) to obtain, compromise
and adjust insurance required to be paid to Lender; (ii) to ask, demand,
collect, ▇▇▇ for, recover, receive, and give acquittance and receipts for moneys
due and to become due under or in respect of any of the Collateral; (iii) to
receive, endorse, and collect any drafts or other instruments, documents, and
chattel paper in connection with clause (i) or (ii) above; and (iv) to file any
claims or take any action or institute any proceedings which Lender may deem
necessary or desirable for the collection of any of the Collateral or otherwise
to enforce the rights of Lender with respect to any of the Collateral.
(l) No Duties. The powers conferred on Lender hereunder are solely to
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protect its interest in the Collateral and shall not impose any duty upon it to
exercise any such powers. Except for the safe custody of any Collateral in its
possession and the accounting for moneys actually received by it hereunder,
Lender shall have no duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral.
(m) Financial Data. Borrower will furnish to Lender and will cause any
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guarantor of Borrower's obligations to furnish to Lender on request (i) annual
balance sheet and profit and loss statements prepared in accordance with
generally accepted accounting principles and practices consistently applied and,
if Lender so requires, accompanied by the annual audit report of an independent
certified public accountant reasonably acceptable to Lender, and (ii) all other
financial information and reports that Lender may from time to time reasonably
request, including, if Lender so requires, income tax returns of Borrower and
any guarantor of Borrower's obligations hereunder.
7. Conditions of Borrowing. Lender shall not be obligated to make any loan
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hereunder unless:
(a) The Interim Notes or Term Notes evidencing such loan shall have been
duly executed and delivered to Lender;
(b) Borrower shall have executed and delivered to Lender the Supplemental
Security Agreement describing the Collateral and stating, except with respect to
progress payment fundings, the location thereof;
(c) Except with respect to progress payment fundings, Lender shall have
received evidence (as described in Section 6d hereof) that insurance has
been obtained in accordance with the provisions of this Loan and Security
Agreement;
(d) Lender shall have received any and all third party consents, waivers
or releases deemed necessary or desirable by it in connection with the loan and
the Collateral being financed, including, without limitation, Uniform Commercial
Code lien releases and the consent
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and waiver, in form and substance satisfactory to Lender, of each and every
realty owner, landlord and mortgagee holding an interest in or encumbrance on
the real property where any of the Collateral is to be located;
(e) All filings, recordings and other actions deemed necessary or
desirable by Lender in order to establish, protect, preserve and perfect its
security interest in the Collateral being financed by such loan as a valid
perfected first priority security interest shall have been duly effected,
including, without limitation, the filing of financing statements and the
recordation of landlord (owners) and/or mortgagee waivers or disclaimers, all in
form and substance satisfactory to Lender, and all fees, taxes and other charges
relating to such filings and recordings shall have been paid by Borrower;
(f) The representations and warranties contained in this Loan and Security
Agreement shall be true and correct in all respects on and as of the date of the
making of any loan hereunder with the same effect as if made on and as of such
date;
(g) In the sole judgment of Lender, there shall have been no material
adverse change in the financial condition, business or operations of Borrower
from the earliest date of any financial statement, credit report, business
report or similar document submitted to Lender for its review;
(h) All Loan Documents shall be satisfactory to Lender's attorneys; and
(i) Lender shall have received, in form and substance satisfactory to
Lender, such other documents as Lender shall require including, but not limited
to, a Request, proof of payment, vendor invoices and certificates of authority
and incumbency.
8. Default. The occurrence of any of the following events, following the
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giving of any required notice and/or the expiration of any applicable period of
grace, shall constitute an event of default ("Event of Default") hereunder:
(a) Borrower's default in payment of any installment of the principal of
or interest on any Interim Note or Term Note when and after the same shall
become due and payable, whether at the due date thereof or by acceleration or
otherwise, which default shall continue unremedied for ten (10) days; or
(b) The failure by Borrower to make payment of any other amount payable
hereunder or under any Interim Note or Term Note, and the continuance of, such
failure for more than ten (10) days after written notice thereof by Lender to
Borrower; or
(c) The failure by Borrower to perform or observe any covenant, condition,
obligation or agreement to be performed or observed by it hereunder, which
failure shall continue unremedied for thirty (30) days after written notice
thereof by Lender to Borrower; or
(d) The occurrence of a default described in Section 4 hereof; or
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(e) Any warranty, representation or statement made or furnished with
respect to the Borrower or the Collateral to Lender by or on behalf of Borrower,
in connection with this Loan and Security Agreement, or the indebtedness secured
hereby, shall prove to have been false in any adverse, material respect when
made or furnished; or
(f) Borrower shall become insolvent or bankrupt or make an assignment for
the benefit of creditors or consent to the appointment of a trustee or receiver;
or a trustee or a receiver shall be appointed for Borrower or for a substantial
part of its property without its consent and shall not be dismissed for a period
of sixty (60) days; or bankruptcy, reorganization, liquidation, insolvency or
dissolution proceedings shall be instituted by or against Borrower and, if
instituted against Borrower, shall be consented to or be pending and not
dismissed for a period of sixty (60) days; or any execution or writ of process
shall be issued under any action or proceeding against Borrower in such capacity
whereby any of the Collateral may be taken or restrained; Borrower shall cease
doing business as a going concern; or, without the prior written consent of
Lender, Borrower shall sell, transfer or dispose of all or substantially all of
its assets or property; or
(g) The liquidation, merger, consolidation, reorganization, conversion to
an "S" status or dissolution, if Borrower is a corporation or partnership, of
Borrower, if in Lender's reasonable opinion, such act shall materially and
adversely affect Borrower's ability to perform under any of the Loan Documents;
or
(h) Any item of Collateral is seized or levied on under legal or
governmental process or for any reason Lender deems itself insecure. Lender
shall be entitled to deem itself insecure when some event occurs, fails to occur
or is threatened or some objective condition exists or is threatened which
significantly impairs the prospects that any of Borrower's obligations to Lender
will be paid when due, which significantly impairs the value of the Collateral
to Lender or which significantly affects the financial or business condition of
Borrower.
(i) The occurrence of an Event of Default shall terminate any commitment
or obligation by Lender to make any of the loans contemplated by this Loan and
Security Agreement.
9. Remedies Upon Default. Upon the occurrence of an Event of Default
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hereunder, Lender may, at its option, do any one or more of the following:
(a) Declare all obligations of Borrower to Lender to be immediately due
and payable, whereupon all unpaid principal of and interest on said indebtedness
and other amounts declared due and payable shall be and become immediately due
and payable;
(b) Take possession of all or any of the Collateral and exclude therefrom
Borrower and all others claiming under Borrower, and thereafter hold, store,
use, operate, manage, maintain and control, make repairs, replacements,
alterations, additions and improvements to and exercise all rights and powers of
Borrower in respect to the Collateral or any part thereof. In the event Lender
demands, or attempts to take possession of the Collateral in the exercise of
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any rights under this Loan and Security Agreement, Borrower promises and agrees
to promptly turn over and deliver complete possession thereof to Lender;
(c) Require Borrower to assemble the Collateral, or any portion thereof,
at a place designated by Lender and reasonably convenient to both parties, and
promptly to deliver such Collateral to Lender, or an agent or representative
designated by it;
(d) Sell, lease or otherwise dispose of the Collateral at public or
private sale, without having the Collateral at the place of sale, and upon terms
and in such manner as Lender may determine (and Lender may be a purchaser at any
sale); and
(e) Exercise any remedies of a secured party under the Uniform Commercial
Code as adopted in the state where the Collateral is located or any other
applicable law.
Except as to portions of the Collateral which are perishable or threaten to
decline speedily in value or are of a type customarily sold on a recognized
market, Lender shall give Borrower at least ten (10) days' prior written notice
of the time and place of any public or private sale of the Collateral or other
intended disposition thereof to be made. Such notice may be mailed to Borrower
at the address set forth in the first paragraph of this Loan and Security
Agreement. Borrower hereby specifically agrees (to the extent that applicable
law and public policy allows it to effectively do so) that any public or private
sale held in accordance with the terms of this Loan and Security Agreement
shall, for the purpose of the Uniform Commercial Code as adopted in the state
where the Collateral is located and for all other purposes, be deemed to have
been conducted in a commercially reasonable manner and in good faith.
The proceeds of any sale under Section 9(d) shall be applied as follows:
(i) To the repayment of the costs and expenses of retaking, holding and
preparing for the sale and the selling of the Collateral (including
legal expenses and attorneys' fees) and the discharge of all
assessments, encumbrances, charges or liens, if any, on the
Collateral prior to the lien hereof (except any taxes, assessments,
encumbrances, charges or liens subject to which such sale shall have
been made);
(ii) To the payment of the whole amount then due and unpaid of the
indebtedness of Borrower to Lender;
(iii) To the payment of other amounts then secured hereunder; and
(iv) The surplus, if any, shall be paid to the Borrower or to whomsoever
may be lawfully entitled to receive the same.
Lender shall have the right to enforce one or more remedies hereunder,
successively or concurrently, and such action shall not operate to stop or
prevent Lender from pursuing any further remedy which it may have, and any
repossession or retaking or sale of the
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Collateral pursuant to the terms hereof shall not operate to release Borrower
until full payment of any deficiency has been made in cash.
10. Limitation on Interest. It is the intent of the parties to this Loan
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and Security Agreement to contract in strict compliance with applicable usury
laws from time to time in effect. In furtherance thereof, the parties stipulate
and agree that none of the terms and provisions contained in the Loan Documents
shall ever be construed to create a contract to pay for the use, forbearance or
detention of money at a rate in excess of the maximum interest rate permitted to
be charged by applicable law from time to time in effect.
11. Personal Property/Tags. No item of Equipment will be attached or
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affixed to realty or any building without Lender's prior knowledge and written
consent and waiver of the landlord and the mortgagee, if any, of the real
property. If so requested by Lender, Borrower will affix tags supplied by
Lender, reflecting Lender's security interest in the Equipment.
12. Loss and Damage. Borrower shall bear the risk of damage, loss, theft,
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or destruction, partial or complete of the Equipment, whether or not such loss
or damage is covered by insurance, except that while Borrower is not in default,
Lender agrees to apply toward payment of obligations of Borrower insurance
proceeds payable to Lender by reason of such damage, loss, theft, or
destruction. In the event of any damage, loss, theft, or destruction, partial or
complete, of any item of Equipment, Borrower shall promptly notify Lender in
writing and at the option of Lender (a) repair or restore the Equipment to good
condition and working order, or (b) replace the Equipment with similar equipment
in good repair, condition and working order, or (c) pay Lender, in cash, an
amount equal to the unamortized equipment cost for the item or if the Equipment
was not purchased with the loan proceeds, the pro rata portion of the
outstanding principal balance due under the Interim Note or Term Note, as the
case may be, and all other amounts relating to that item of Equipment then due
and owing hereunder, and upon payment of that amount, Lender's lien shall be
terminated with respect to that item of Equipment only, and Lender will release
its interest in that item of Equipment.
13. Assignment. Borrower may not assign or transfer any rights under this
----------
Loan and Security Agreement or to the Collateral without Lender's prior written
consent.
14. Indemnification. Borrower shall indemnify and hold harmless Lender
---------------
from and against any and all claims, losses, liabilities, causes of action,
costs and expenses (including the fees of Lender's attorneys) ("Claims") in any
way relating to or arising out of this Loan and Security Agreement, the other
Loan Documents or the Collateral, except for any Claims resulting solely and
directly from Lender's gross negligence or willful misconduct.
15. Notices. Whenever Borrower or Lender shall desire to give or serve any
-------
notice, demand, request or other communication with respect to this Loan and
Security Agreement, each such notice, demand, request or communication shall be
in writing and shall be effective only if the same is physically delivered or is
by certified mail, postage prepaid, return receipt requested, or by overnight
courier, postage prepaid, mailed to the parties at the addresses set forth in
the first paragraph of this Loan and Security Agreement, with a copy to Lender's
Vice
11
President of Credit. Any party hereto may change its address for such notices by
delivering or mailing to the other parties hereto, as aforesaid, a notice of
such change.
16. No Waiver by Lender. By exercising or failing to exercise any of its
-------------------
rights, options or elections hereunder, Lender shall not be deemed to have
waived any breach or default on the part of Borrower or to have released
Borrower from any of the obligations secured hereby, unless such waiver or
release is in writing and is signed by Lender. In addition, the waiver by Lender
of any breach hereof for default in payment of an indebtedness secured hereby
shall not be deemed to constitute a waiver of any succeeding breach or default.
17. Further Agreements. From time to time, Borrower will execute such
------------------
further instruments as Lender may reasonably require, in order to protect,
preserve, and maintain the security interest granted hereby.
18. Binding Upon Successors. All agreements, covenants, conditions and
-----------------------
provisions of this Loan and Security Agreement shall apply to and bind the
successors and assigns of all parties hereto.
19. Governing Laws. This Loan and Security Agreement shall be governed by
--------------
the laws of the State of Washington.
20. Amendment. This Loan and Security Agreement can be modified or
---------
rescinded only by a writing expressly referring to this Loan and Security
Agreement, signed by both of the parties hereto.
21. Invalidity of Provisions. Every provision of this Loan a Security
------------------------
Agreement is intended to be severable. In the event that any term or provision
hereof is declared by a court to be illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the balance of the
terms and provisions hereof, which terms and provisions shall remain binding and
enforceable, then to the extent possible all of the other provisions shall
nonetheless remain in full force and effect.
IN WITNESS WHEREOF, Borrower and Lender have duly executed this Loan and
Security Agreement the day and year first above written.
LENDER: BORROWER:
GENERAL ELECTRIC CAPITAL U.S. LABORATORIES, INC.
BUSINESS ASSET FUNDING CORPORATION
By:________________________________ By:____________________________________
(Print Name):______________________ (Print Name):__________________________
Title:_____________________________ Title:_________________________________
Social Security Number:________________
(if Borrower is an individual)
FEIN:__________________________________
12
Exhibit "A"
No. [lease-schedule] TERM PROMISSORY NOTE
----------------------
$ [commitamt] , ,
---------------------- ------------------------- -----------
FOR VALUED RECEIVED, the undersigned, [custname]("Maker"), promises to pay
to the order of General Electric Capital Business Asset Funding Corporation
("Payee"), at its office at 10900 ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇-▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the principal sum of _______________________________
____________ ($[commitamt]) Dollars together with interest on unpaid principal
from the date of disbursement of such principal amount until payment in full at
a rate of percent ([minrate]%) per annum ("Rate") computed on the basis of a 360
day year of twelve consecutive thirty day months. Interest hereunder shall be
paid on the unpaid principal, together with principal, in __________________
(*term*) installments of ($[payment]) commencing on _________________ and
_______________________ thereafter until on which date the entire balance of
principal and interest unpaid shall be due and payable. It is agreed that each
installment, when paid, shall be applied by the holder hereof, first so much as
shall be required to the payment of interest accrued as specified hereto, and
the balance thereof to the repayment of the principal sum.
Except as may be otherwise expressly provided herein, this Note may not be
prepaid in whole or in part, except with the prior written consent of Payee.
Maker shall have the privilege of prepaying all (but not part) of the then
outstanding balance under this Note at the end of the __________________ month
after the Term begins or on any installment due date thereafter, subject to
giving thirty (30) days prior written notice to Payee specifying the date of
prepayment and further subject to payment of a prepayment premium equal to the
amount, if any, required to offset the adverse impact to Payee of any decline in
interest rates. The prepayment premium is determined by (i) calculating the
decrease, expressed in basis points (but not less than zero) in the current
weekly average yield for _____________ (___) Year U.S. Treasury Constant
Maturities as published in Federal Reserve Statistical Release H.15(519 (the
--------------------------------------------
"Index") with a maturity equal to the Remaining Average Maturity of the current
loan from the weekly average yield of _______% as of __________________________
to the Friday (or, if Friday is not a business day, the last business day) of
the week immediately preceding the prepayment date (ii) dividing the difference
by 100, (iii) multiplying the result by the applicable "Premium Factor" set
forth below, and (iv) multiplying the product by the principal to be prepaid.
Any prepayment shall be applied first to the prepayment premium, if any, next to
accrued interest and late charges (if any), and thereafter to the principal then
outstanding. The Premium Factor and Remaining Average Maturity shall be the
respective amounts shown on the following chart for the month in which
prepayment occurs. If the Index does not list a rate for the applicable Treasury
Note or Treasury ▇▇▇▇ corresponding to the Remaining Average Maturity, an
interpolated rate based on the next higher and next lower Treasury Note or
Treasury ▇▇▇▇ rate, as applicable, will be used (e.g. there is no four-year rate
provided in the Index and it would therefore be calculated by interpolation
using the rates for three-year and five-year Treasury Notes).
Number of Months (Years) Premium Factor Remaining Average
Remaining Maturity (U.S. Treasury
Constant Maturities)
120 - 109 (10)
108 - 97 (9)
96 - 85 (8)
84 - 73 (7)
72 - 61 (6)
60 - 49 (5)
48 - 37 (4)
36 - 25 (3)
24 - 13 (2)
12 - 1 (1)
In the event the Federal Reserve Board ceases to publish Statistical
Release H.15(519), then the decrease in the above U.S. Treasury Constant
Maturities will be determined from another source designated by Payee.
If Maker shall have given to Payee notice of Maker's intention to so
prepay, Maker shall not then be entitled to withdraw such notice, and the
indebtedness proposed to be prepaid in such notice together with the aforesaid
prepayment fee, if applicable, shall be due and payable upon the date specified
for such prepayment in such notice. Upon the occurrence of an Event of Default
and acceleration of payment of indebtedness evidenced hereby during a period
open to prepayment, Maker shall pay to Payee, in addition to any and all other
sums due and payable hereunder, as liquidated damages for the loss of Payee's
investment and not as a penalty, an amount equal to the prepayment fee which
would have been payable hereunder on such date of acceleration in the event of a
voluntary prepayment. Maker and Payee agree that the foregoing amounts do not
constitute penalties but rather constitute reasonable calculations of the
investment loss that would be sustained by Payee in the event of such
prepayment.
It is specifically understood and agreed by Maker that, in the event of a
default under this Note or under any instrument securing the Note, a tender of
payment of the unpaid principal and accrued interest then outstanding shall be
deemed a prepayment, and, accordingly, said tender must include the premium
herein above required, or if said tender is made prior to the time this
privilege is operative, then said tender must include a premium equal to six (6)
months' interest at the Rate computed on the principal amount so tendered. It is
further understood and agreed by Maker that Payee shall not be obligated to
accept said tender, and said tender shall for all purposes be deemed ineffectual
and deficient, unless said tender shall include the premium herein above
required.
In the event that Payee does not receive any payment on the date due, Maker
will pay Payee a late charge of five percent (5%) of the payment outstanding
together with the payment
2
and, provided said sum is received within ten (10) days of the date due, Payee
agrees not to demand immediate payment of the whole sum of principal and
interest as otherwise permitted herein.
If, from any circumstances whatsoever, payment of any obligation due under
this Note at the time such performance shall be due shall involve exceeding the
maximum amount currently prescribed by any applicable usury statute or any other
applicable law, then such obligation shall be reduced to such maximum amount, so
that in no event shall any payment be possible under this Note, or under any
other instrument evidencing or securing the indebtedness evidenced hereby, that
is in excess of such maximum amount.
In the event that an Event of Default shall occur under the Loan and
Security Agreement (as hereinafter defined) or any other instrument now or
hereafter securing repayment hereof, following any required notice and/or the
expiration of any applicable period of grace, then, and in such event, the
principal indebtedness evidenced hereby, and any other sums advanced hereunder,
together with all unpaid interest accrued thereon, shall, at the option of
Payee, at once become due and payable and may be collected forthwith, regardless
of the stipulated date of maturity. TIME IS OF THE ESSENCE WITH RESPECT TO THIS
NOTE. Interest shall accrue on the outstanding principal for so long as such
default continues, regardless of whether or not there has been an acceleration
of the indebtedness evidenced hereby as set forth herein, at the rate equal to
the lesser of fifteen percent (15%) per annum or the maximum rate allowable
under law. All such interest shall be paid at the time of and as a condition
precedent to the curing of any such default should Payee, at its sole option,
allow such default to be cured. In the event this Note, or any part thereof, is
collected by or through an attorney-at-law, Maker agrees to pay all costs of
collection including, but not limited to, reasonable attorneys' fees, whether or
not suit is filed.
This Note is one of the notes referred to in and is secured by the Loan and
Security Agreement dated between ____________________ Maker and Payee. The terms
of the Loan and Security Agreement are incorporated herein by reference.
This Note consolidates the following Interim Notes executed by Maker in
favor of Payee:
Interim Note Number Date Principal Amount
3
Maker waives any right of exemption and waives presentment, protest and
demand and notice of protest, demand and of dishonor and nonpayment of this
Interim Note, and consents that any holder hereof shall have the right, without
notice, to grant any extension or extensions of time for payment of this Interim
Note or any part thereof or any other indulgences or forbearances whatsoever, or
may release any of the security of this Interim Note without in any way
affecting the liability of any other party for the payment of this Interim Note.
The due payment and performance of Maker's obligations hereunder shall be
without regard to any counterclaim, right of offset, or any other counterclaim
whatsoever which Maker may have against Payee and without regard to any other
obligations of any nature whatsoever which Payee may have to Maker, and no such
counterclaim or offset shall be asserted by Maker in any action, suit or
proceeding instituted by Payee for payment of Maker's obligations hereunder.
This Interim Note and the Loan and Security Agreement shall be governed by
and construed in accordance with the laws of the State of Washington.
Maker acknowledges that there is no presumption that the value of the
property securing this Interim Note is equal to the face amount of the Interim
Note, and that a deficiency judgment may be necessary in proceedings taken for
enforcement hereof.
No amendment to this Note shall be binding upon Payee unless it is in
writing and duly signed by Payee.
IN WITNESS WHEREOF, the Maker has caused these presents to be duly signed
the date first above written.
Borrower: [custname]
--------------------------------
By:
--------------------------------------
Witness: (Print Name)
------------------------- -----------------------------
Title:
-----------------------------------
4
Exhibit "B"
NO: [lease] [schedule] INTERIM PROMISSORY NOTE NO. ONE
------------------
$ [commitamt] , ,
------------------- ------------------------------ -----------------
FOR VALUE RECEIVED, the undersigned, [custname] ("Maker"), promises to pay to
the order of General Electric Capital Business Asset Funding Corporation
("Payee"), at its office at ▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the principal sum of ($[commitamt]) together with interest on
unpaid principal from the date of disbursement of such principal amount until
payment in full at a rate per annum equal to _______ ([irindex]%) percent (the
"Reference Rate"). The Reference Rate shall be adjusted as of the date of any
announced change thereto. Interest shall be computed on the basis of a 360 day
year and actual days elapsed. Interest shall accrue on the unpaid principal,
commencing on the date that funds are advanced to Maker by Payee hereunder and
shall be payable on the fifteenth (15) day of each month until
___________________ on which date the entire balance of principal and interest
unpaid shall be due and payable.
In the event that Payee does not receive any monthly payment on the date
due, Maker will pay Payee a late charge of five percent (5%) of the monthly
payment outstanding together with the monthly payment and, provided said sum is
received within ten (10) days of the date due, Payee agrees not to demand
immediate payment of the whole sum of principal and interest as otherwise
permitted herein.
If, from any circumstances whatsoever, payment of any obligation due under
this Note at the time such performance shall be due shall involve exceeding the
maximum amount currently prescribed by any applicable usury statute or any other
applicable law, then such obligation shall be reduced to such maximum amount so
that in no event shall any payment be possible under this Note, or under any
other instrument evidencing or securing the indebtedness evidenced hereby, that
is in excess of such maximum amount.
In the event that an Event of Default shall occur under the Loan and
Security Agreement (as hereinafter defined) or any other instrument now or
hereafter securing repayment hereof, following any required notice and/or the
expiration of any applicable period of grace, then, and in such event, the
principal indebtedness evidenced hereby, and any other sums advanced hereunder,
together with all unpaid interest accrued thereon, shall, at the option of
Payee, at once become due and payable and may be collected forthwith, regardless
of the stipulated date of maturity. TIME IS OF THE ESSENCE OF THIS NOTE.
Interest shall accrue on the outstanding principal for so long as such default
continues, regardless of whether or not there has been an acceleration of the
indebtedness evidenced hereby as set forth herein, at the rate equal to the
lesser of fifteen percent (15%) per annum or the maximum rate allowable under
law. All such interest shall be paid at the time of and as a condition precedent
to the curing of any such default should Payee, at its sole option, allow such
default to be cured. In the event this Note, or any part thereof, is collected
by or through an attorney-at-law, Maker agrees to pay all costs of collection
including, but not limited to, reasonable attorneys' fees, whether or not suit
is filed.
This Interim Note is one of the notes referred to in and is secured by the
Loan and Security Agreement dated ________________ between Maker and Payee.
The terms of the Loan and Security Agreement are incorporated herein by
reference.
Maker waives any right of exemption and waives presentment, protest and
demand and notice of protest, demand and of dishonor and nonpayment of this
Interim Note, and consents that any holder hereof shall have the right, without
notice, to grant any extension or extensions of time for payment of this Interim
Note or any part thereof or any other indulgences or forbearances whatsoever, or
may release any of the security of this Interim Note without in any way
affecting the liability of any other party for the payment of this Interim Note.
The due payment and performance of Maker's obligations hereunder shall be
without regard to any counterclaim, right of offset, or any other counterclaim
whatsoever which Maker may have against Payee and without regard to any other
obligations of any nature whatsoever which Payee may have to Maker, and no such
counterclaim or offset shall be asserted by Maker in any action, suit or
proceeding instituted by Payee for payment of Maker's obligations hereunder.
This Interim Note and the Loan and Security Agreement shall be governed by
and construed in accordance with the laws of the State of Washington.
Maker acknowledges that there is no presumption that the value of the
property securing this Interim Note is equal to the face amount of the Interim
Note, and that a deficiency judgment may be necessary in proceedings taken for
enforcement hereof.
No amendment to this Interim Note shall be binding upon Payee unless it is
in writing and duly signed by Payee.
IN WITNESS WHEREOF, the Maker has caused these presents to be duly signed
the date first above written.
Maker: [custname]
-------------------------------------
By:
----------------------------------------
(Print Name)
-------------------------------
Title:
-------------------------------------
Address: [hqaddr]
-----------------------------------
[hqcity], [hqstate] [hqzip]
-----------------------------------
2
LOAN NO. Exhibit "C"
REQUEST FOR ADVANCE OF
LOAN PROCEEDS
In accordance with the Loan and Security Agreement dated _______________, the
undersigned, as Borrower, hereby requests Lender to make a disbursement of the
Loan Amount in the amount of $_______________. To the extent that any item of
Equipment has been delivered to Borrower, Borrower represents and warrants that
it has inspected and accepted such item of Equipment and that such item has been
duly assembled and is in good working order.
[_] The undersigned further authorizes and directs Lender to disburse
the proceeds of this Loan in payment of the following invoices, copies of
which are attached hereto:
or
[_] The undersigned has previously paid the following invoices and requests GE
CAPITAL to disburse the proceeds of this Loan to the undersigned. Copies of
the invoices and proof of such payment are attached hereto:
--------------------------------------------------------------------------------
VENDOR INVOICE NO. AMOUNT
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TOTAL $______________________
DATE:
-------------------------
(Borrower):
-------------------------
By:
-------------------------
(Print Name):
-------------------------
Title:
--------------------------
