EXHIBIT 10.30
--------------------------------------------------------------------------------
LOAN AND SECURITY AGREEMENT
APPLIED IMAGING CORP.
APPLIED IMAGING INTERNATIONAL LIMITED
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
1 ACCOUNTING AND OTHER TERMS............................................... 4
- --------------------------
2 LOAN AND TERMS OF PAYMENT................................................ 4
- --------------------------
2.1 Credit Extensions................................................... 4
2.2 Interest Rate, Payments............................................. 4
2.3 Fees................................................................ 5
3 CONDITIONS OF LOANS...................................................... 5
- -------------------
3.1 Conditions Precedent to Initial Credit Extension.................... 5
4 CREATION OF SECURITY INTEREST............................................ 5
- -----------------------------
4.1 Grant of Security Interest.......................................... 5
5 REPRESENTATIONS AND WARRANTIES........................................... 5
- ------------------------------
5.1 Due Organization and Authorization.................................. 5
5.2 Collateral.......................................................... 6
5.3 Litigation.......................................................... 6
5.4 No Material Adverse Change in Financial Statements.................. 6
5.5 Solvency............................................................ 6
5.6 Regulatory Compliance............................................... 6
5.7 Subsidiaries........................................................ 6
5.8 Full Disclosure..................................................... 7
6 AFFIRMATIVE COVENANTS.................................................... 7
- ---------------------
6.1 Government Compliance............................................... 7
6.2 Financial Statements, Reports, Certificates......................... 7
6.3 Inventory; Returns.................................................. 7
6.4 Taxes............................................................... 8
6.5 Insurance........................................................... 8
6.6 Primary Accounts.................................................... 8
6.7 Financial Covenants................................................. 8
6.8 Further Assurances.................................................. 9
7 NEGATIVE COVENANTS....................................................... 9
- ------------------
7.1 Dispositions........................................................ 9
7.2 Changes in Business, Ownership, Management or Business Locations.... 9
7.3 Mergers or Acquisitions............................................. 9
7.4 Indebtedness........................................................ 9
7.5 Encumbrance......................................................... 9
7.6 Distributions; Investments.......................................... 9
7.7 Transactions with Affiliates........................................ 10
7.8 Subordinated Debt................................................... 10
7.9 Compliance.......................................................... 10
8 EVENTS OF DEFAULT........................................................ 10
- -----------------
8.1 Payment Default..................................................... 10
8.2 Covenant Default.................................................... 10
8.3 Material Adverse Change............................................. 10
8.4 Attachment.......................................................... 11
8.5 Insolvency.......................................................... 11
8.6 Other Agreements.................................................... 11
2
8.7 Judgments....................................................... 11
8.8 Misrepresentations.............................................. 11
9 BANK'S RIGHTS AND REMEDIES........................................... 11
- --------------------------
9.1 Rights and Remedies............................................. 11
9.2 Power of Attorney............................................... 12
9.3 Accounts Collection............................................. 12
9.4 Bank Expenses................................................... 12
9.5 Bank's Liability for Collateral................................. 12
9.6 Remedies Cumulative............................................. 13
9.7 Demand Waiver................................................... 13
10 NOTICES.............................................................. 13
-- -------
10.1 Notices........................................................ 13
11 CHOICE OF LAW , VENUE AND JURY TRIAL WAIVER.......................... 13
-- -------------------------------------------
12 GENERAL PROVISIONS................................................... 14
-- ------------------
12.1 Successors and Assigns......................................... 14
12.2 Indemnification................................................ 14
12.3 Time of Essence................................................ 14
12.4 Severability of Provision...................................... 14
12.5 Amendments in Writing, Integration............................. 14
12.6 Counterparts................................................... 14
12.7 Survival....................................................... 14
12.8 Confidentiality................................................ 15
12.9 Attorneys' Fees, Costs and Expenses............................ 15
13 DEFINITIONS.......................................................... 15
-- -----------
13.1 Definitions.................................................... 15
3
This LOAN AND SECURITY AGREEMENT dated September 9, 1999, between SILICON
VALLEY BANK ("Bank"), whose address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and APPLIED IMAGING CORP. ("AIC") and APPLIED IMAGING
INTERNATIONAL LIMITED ("AIIL") (collectively the "Borrower"), whose address is
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ provides the terms
on which Bank will lend to Borrower and Borrower will repay Bank. The parties
agree as follows:
1 ACCOUNTING AND OTHER TERMS
--------------------------
Accounting terms not defined in this Agreement will be construed
following GAAP. Calculations and determinations must be made following GAAP. The
term "financial statements" includes the notes and schedules. The terms
"including" and "includes" always mean "including (or includes) without
limitation," in this or any Loan Document. This Agreement shall be construed to
impart upon Bank a duty to act reasonably at all times.
2 LOAN AND TERMS OF PAYMENT
-------------------------
2.1 Credit Extensions.
Borrower will pay Bank the unpaid principal amount of all Credit
Extensions and interest on the unpaid principal amount of the Credit Extensions.
2.1.1 Term Loan.
(a) Bank will make a Term Loan available to Borrower.
(b) Borrower will pay 36 equal installments of $55,555.55 in principal
plus interest (the "Term Loan Payment"). Each Term Loan Payment is payable on
the 9th of each month during the term of the loan. Borrower's final Term Loan
Payment, due on September 9, 2002, includes all outstanding Term Loan principal
and accrued interest.
2.2 Interest Rate, Payments.
(a) Interest Rate. The Term Loan accrues interest at a per annum rate of
2.00 percentage points above the Prime Rate ("Tier 1 Pricing"), provided that if
Borrower meets the Tier 2 Pricing Guideline for 3 consecutive months (or
immediately prior to the Closing Date), the Tier 2 Pricing shall become
effective. If Borrower does not meet the Tier 2 Pricing Guideline at any month
end, the Term Loan shall accrue interest at the Tier 1 Pricing. Such interest
rate change shall be effective as of the first day of the month following Bank's
receipt of Borrower's financial statements indicating Borrower has met the above
described criteria. After an Event of Default, Obligations accrue interest at 5
percent above the rate effective immediately before the Event of Default. The
interest rate increases or decreases when the Prime Rate changes. Interest is
computed on a 360 day year for the actual number of days elapsed.
(b) Payments. Bank may debit any of Borrower's deposit accounts
including Account Number ______________________________ for principal and
interest payments owing or any amounts Borrower owes Bank. Bank will promptly
notify Borrower when it debits Borrower's accounts. These debits are not a set-
off. Payments received after 12:00 noon Pacific time are considered received at
the opening of business on the next Business Day. When a payment is due on a day
that is not a Business Day, the payment is due the next Business Day and
additional fees or interest accrue.
4
2.3 Fees.
Borrower will pay:
(a) Facility Fee. A fully earned, non-refundable Facility Fee of $10,000
due on the Closing Date; and
(b) Bank Expenses. All Bank Expenses (including reasonable attorneys'
fees and reasonable expenses) incurred through and after the date of this
Agreement, are payable when due.
3 CONDITIONS OF LOANS
-------------------
3.1 Conditions Precedent to Initial Credit Extension.
Bank's obligation to make the initial Credit Extension is subject to the
condition precedent that it receive the agreements, documents and fees it
requires and receipt of an opinion letter as total enforceability of this
Agreement with respect to Applied Imaging International Limited .
4 CREATION OF SECURITY INTEREST
-----------------------------
4.1 Grant of Security Interest.
Borrower grants Bank a continuing security interest in all presently
existing and later acquired Collateral to secure all Obligations and performance
of each of Borrower's duties under the Loan Documents. Except for Permitted
Liens, any security interest will be a first priority security interest in the
Collateral. Bank may place a "hold" on any deposit account pledged as
Collateral. Notwithstanding the foregoing, the security interest granted herein
does not extend to and the term "Collateral" does not include any license or
contract rights to the extent (i) the granting of a security interest in it
would be contrary to applicable law, or (ii) that such rights are nonassignable
by their terms (but only to the extent such prohibition is enforceable under
applicable law, including, without limitation, Section 9318(4) of the Code)
without the consent of the licensor or other party (but only to the extent such
consent has not been obtained). Except as disclosed on the 10K or 10Q, Borrower
is not a party to, nor is bound by, any license or other agreement that
prohibits or otherwise restricts Borrower from granting a security interest in
Borrower's interest in such license or agreement or any other property. Without
prior notice to Bank, Borrower shall not enter into, or become bound by, any
such license or agreement which is reasonably likely to have a material impact
on Borrower's business or financial condition. Borrower shall take such steps as
Bank requests to obtain the consent of, or waiver by, any person whose consent
or waiver is necessary for such licenses or contract rights to be deemed
"Collateral" and for Bank to have a security interest in it that might otherwise
be restricted or prohibited by law or by the terms of any such license or
agreement, whether now existing or entered into in the future. If the Agreement
is terminated, Bank's lien and security interest in the Collateral will continue
until Borrower fully satisfies its Obligations.
5 REPRESENTATIONS AND WARRANTIES
------------------------------
Borrower represents and warrants as follows:
5.1 Due Organization and Authorization.
Borrower and each Subsidiary is duly existing and in good standing in its
state of formation and qualified and licensed to do business in, and in good
standing in, any state in which the conduct of its business or its ownership of
property requires that it be qualified, except where the failure to do so could
reasonably be expected to cause a Material Adverse Change.
5
The execution, delivery and performance of the Loan Documents have been
duly authorized, and do not conflict with Borrower's formation documents, nor
constitute an event of default under any material agreement by which Borrower is
bound. Borrower is not in default under any agreement to which or by which it is
bound in which the default could cause reasonably be expected to cause a
Material Adverse Change.
5.2 Collateral.
Borrower has good title to the Collateral, free of Liens except Permitted
Liens. All Inventory is in all material respects of good and marketable quality,
free from material defects.
5.3 Litigation.
Except as disclosed in 10K or 10Q or shown in the Schedule, there are no
actions or proceedings pending or, to the knowledge of Borrower's Responsible
Officers and legal counsel, threatened by or against Borrower or any Subsidiary
in which a likely adverse decision could reasonably be expected to cause a
Material Adverse Change.
5.4 No Material Adverse Change in Financial Statements.
All consolidated financial statements for Borrower, and any Subsidiary,
delivered to Bank fairly present in all material respects Borrower's
consolidated financial condition and Borrower's consolidated results of
operations. There has not been any material deterioration in Borrower's
consolidated financial condition since the date of the most recent financial
statements submitted to Bank.
5.5 Solvency.
Borrower is able to pay its debts (including trade debts) as they mature.
5.6 Regulatory Compliance.
Borrower is not an "investment company" or a company "controlled" by an
"investment company" under the Investment Company Act. Borrower is not engaged
as one of its important activities in extending credit for margin stock (under
Regulations T and U of the Federal Reserve Board of Governors). Borrower has
complied in all material respects with the Federal Fair Labor Standards Act.
Borrower has not violated any laws, ordinances or rules, the violation of which
could reasonably be expected to cause a Material Adverse Change. None of
Borrower's or any Subsidiary's properties or assets has been used by Borrower or
any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in
disposing, producing, storing, treating, or transporting any hazardous substance
other than legally. Borrower and each Subsidiary has timely filed all required
tax returns and paid, or made adequate provision to pay, all material taxes,
except those being contested in good faith with adequate reserves under GAAP.
Borrower and each Subsidiary has obtained all consents, approvals and
authorizations of, made all declarations or filings with, and given all notices
to, all government authorities that are necessary to continue its business as
currently conducted, except where the failure to do so could not reasonably be
expected to cause a Material Adverse Change.
5.7 Subsidiaries.
Borrower does not own any stock, partnership interest or other equity
securities except for Permitted Investments.
6
5.8 Full Disclosure.
No written representation, warranty or other statement of Borrower in any
certificate or written statement given to Bank (taken together with all such
written certificates and written statements to Bank) contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements contained in the certificates or statements not misleading. It
being recognized by Bank that the projections and forecasts provided by Borrower
in good faith and based upon reasonable assumptions are not viewed as facts and
that actual results during the period or periods covered by such projections and
forecasts may differ from the projected and forecasted results.
6 AFFIRMATIVE COVENANTS
---------------------
Borrower will do all of the following:
6.1 Government Compliance.
Borrower will maintain its and all Subsidiaries' legal existence and good
standing in its jurisdiction of formation and maintain qualification in each
jurisdiction in which the failure to so qualify would reasonably be expected to
cause a material adverse effect on Borrower's business or operations. Borrower
will comply, and have each Subsidiary comply, with all laws, ordinances and
regulations to which it is subject, noncompliance with which could have a
material adverse effect on Borrower's business or operations or would reasonably
be expected to cause a Material Adverse Change.
6.2 Financial Statements, Reports, Certificates.
(a) AIC will deliver to Bank: (i) as soon as available, but no later
than 20 days after the last day of each month, a company prepared consolidated
balance sheet and income statement covering Borrower's consolidated operations
during the period, in a form and certified by a Responsible Officer acceptable
to Bank; (ii) as soon as available, but no later than 90 days after the last day
of Borrower's fiscal year, audited consolidated financial statements prepared
under GAAP, consistently applied, together with an opinion which is unqualified
or otherwise consented to by Bank; (iii) within 5 days of filing, copies of all
statements, reports and notices made available to Borrower's security holders or
to any holders of Subordinated Debt and all reports on Form 10-K, 10-Q and 8-K
filed with the Securities and Exchange Commission; (iv) a prompt report of any
legal actions pending or threatened against Borrower or any Subsidiary that
could result in damages or costs to Borrower or any Subsidiary of $100,000 or
more; and (v) budgets, sales projections, operating plans or other financial
information Bank reasonably requests.
(b) Within 20 days after the last day of each month, AIC will deliver to
Bank with the monthly financial statements a Compliance Certificate signed by a
Responsible Officer in the form of Exhibit C.
(c) At such times as an Event of Default has occurred and is continuing
Bank has the right to audit Borrower's Collateral at Borrower's expense.
6.3 Inventory; Returns.
Borrower will keep all Inventory in good and marketable condition, free
from material defects. Returns and allowances between Borrower and its account
debtors will follow Borrower's customary practices as they exist at execution of
this Agreement. Borrower must promptly notify Bank of all returns, recoveries,
disputes and claims, that involve more than $50,000.
7
6.4 Taxes.
Borrower will make, and cause each Subsidiary to make, timely payment of
all material federal, state, and local taxes or assessments and will deliver to
Bank, on demand, appropriate certificates attesting to the payment.
6.5 Insurance.
Borrower will keep its business and the Collateral insured for risks and
in amounts, consistent with similar businesses in the same geographic area.
Insurance policies will be in a form, with companies, and in amounts that are
satisfactory to Bank. All property policies will have a lender's loss payable
endorsement showing Bank as a loss payee and all liability policies will show
the Bank as an additional insured and provide that the insurer must give Bank at
least 20 days notice before canceling its policy. At Bank's request, Borrower
will deliver certified copies of policies and evidence of all premium payments.
If no Event of Default has occurred and is continuing, proceeds payable under
any casualty policy will, at Borrower's option, be payable to Borrower to
replace the property subject to the claim, provided that any such replacement
property shall be deemed Collateral in which Bank has been granted a first
priority security interest. If an Event of Default has occurred and is
continuing, then, at Bank's option, proceeds payable under any policy will be
payable to Bank on account of the Obligations.
6.6 Primary Accounts.
Borrower will maintain its primary depository and operating accounts with
Bank.
6.7 Financial Covenants.
AIC consolidated will maintain as of the last day of each month:
(i) Debt/Tangible Net Worth Ratio. A ratio of Total Liabilities less
Subordinated Debt to Tangible Net Worth plus Subordinated Debt of not more than
2.00 to 1.00.
(ii) Tangible Net Worth. A Tangible Net Worth of at least $4,000,000.
(iii) Liquidity Coverage/Debt Service Coverage. Cash and cash
equivalents plus 50% of accounts receivable in which the account debtors primary
office is located in the United States of not less than the greater of either
(a) 2 times the outstanding Credit Extension under the Term Loan, or (b) 6
months of the Average Monthly Cash Losses, as determined as determined during
the most recent 3 month period. For calculation purposes, Average Monthly Cash
Losses means the average monthly change in cash from operations in accordance
with GAAP.
At such time as AIC maintains 2 consecutive fiscal quarters of a
3 month minimum Debt Service Coverage of 1.50 to 1.00, the Liquidity Coverage,
above, shall be replaced by a minimum Debt Service Coverage ratio requirement of
1.50 to 1.00. For calculation purposes, Debt Service Coverage is defined as the
sum of earnings after tax plus interest and non-cash expenses, divided by the
sum of current portion of long term debt plus interest.
(iv) Profitability. AIC will have a minimum net profit of $1 for each
quarter, except that AIC may suffer a loss not to exceed $2,100,000 for the
fiscal quarter ending September 30, 1999; $800,000 for the fiscal quarter ending
December 31, 1999; $800,000 for the fiscal quarter ending March 31, 2000;
$500,000 for the fiscal quarter ending June 30, 2000; $500,000 for the fiscal
quarter ending September 30, 2000; $250,000 for the fiscal quarter ending
December 31, 2000; $100,000 for the fiscal quarter ending March 31, 2001; and
$100,000 for the fiscal quarter ending June 30, 2001.
8
6.8 Further Assurances.
Borrower will execute any further instruments and take further action as
Bank reasonably requests to perfect or continue Bank's security interest in the
Collateral or to effect the purposes of this Agreement.
7 NEGATIVE COVENANTS
------------------
AIC will not do any of the following without Bank's prior written
consent, which will not be unreasonably withheld:
7.1 Dispositions.
Convey, sell, lease, transfer or otherwise dispose of (collectively
"Transfer"), or permit any of its Subsidiaries to Transfer, all or any part of
its business or property, other than a Transfer: (i) of Inventory in the
ordinary course of business; (ii) of non-exclusive licenses and similar
arrangements for the use of the property of Borrower or its Subsidiaries in the
ordinary course of business; (iii) of worn-out or obsolete Equipment, (iv)
demonstration equipment, and (v) other Transfers which in the aggregate do not
exceed $50,000 in any fiscal year.
7.2 Changes in Business, Ownership, Management or Business Locations.
Engage in or permit any of its Subsidiaries to engage in any business
other than the businesses currently engaged in by AIC or reasonably related
thereto or have a material change in its ownership or management (other than the
sale of AIC's equity securities in a public offering or to venture capital
investors approved by Bank) of greater than 25%. AIC will not, without at least
30 days prior written notice, relocate its chief executive office or add any new
offices or business locations.
7.3 Mergers or Acquisitions.
Merge or consolidate, or permit any of its Subsidiaries to merge or
consolidate, with any other Person, or acquire, or permit any of its
Subsidiaries to acquire, all or substantially all of the capital stock or
property of another Person except where (i) such transactions do not result in a
decrease of more than 25% of Net Worth and (ii) no Event of Default has
occurred, is continuing or would exist after giving effect to the transactions.
A Subsidiary may merge or consolidate into another Subsidiary or into Borrower.
7.4 Indebtedness.
Create, incur, assume, or be liable for any Indebtedness, or permit any
Subsidiary to do so, other than Permitted Indebtedness.
7.5 Encumbrance.
Create, incur, or allow any Lien on any of its property, or assign or
convey any right to receive income, including the sale of any Accounts, or
permit any of its Subsidiaries to do so, except for Permitted Liens, or permit
any Collateral not to be subject to the first priority security interest granted
here, subject to Permitted Liens.
7.6 Distributions; Investments.
(i) Directly or indirectly acquire or own any Person, or make any
Investment in any Person, other than Permitted Investments, or permit any of its
Subsidiaries to do so; or (ii) pay any dividends or make any distribution or
payment or redeem, retire or purchase any capital stock, except for (a)
repurchases of stock from former employees or directors of AIC under the
9
terms of applicable repurchase agreements in an aggregate amount not to exceed
$50,000 in the aggregate in any fiscal year, provided that no Event of Default
has occurred, is continuing or would exist after giving effect to the
repurchases, (b) distributions payable solely by AIC's capital stock, and (c)
AIC may convert any of its convertible securities into other securities pursuant
to the terms of such convertible securities or otherwise in exchange therefor.
7.7 Transactions with Affiliates.
Directly or indirectly enter or permit any material transaction with any
Affiliate except transactions that are in the ordinary course of Borrower's
business, on terms less favorable to Borrower than would be obtained in an arm's
length transaction with a non-affiliated Person.
7.8 Subordinated Debt.
Make or permit any payment on any Subordinated Debt, except under the
terms of the Subordinated Debt, or amend any provision in any document relating
to the Subordinated Debt without Bank's prior written consent.
7.9 Compliance.
Become an "investment company" or a company controlled by an "investment
company," under the Investment Company Act of 1940 or undertake as one of its
important activities extending credit to purchase or carry margin stock, or use
the proceeds of any Credit Extension for that purpose; fail to meet the minimum
funding requirements of ERISA, permit a Reportable Event or Prohibited
Transaction, as defined in ERISA, to occur; fail to comply with the Federal Fair
Labor Standards Act or violate any other law or regulation, if the violation
could reasonable be expected to have a material adverse effect on Borrower's
business or operations or would reasonably be expected to cause a Material
Adverse Change, or permit any of its Subsidiaries to do so.
8 EVENTS OF DEFAULT
-----------------
Any one of the following is an Event of Default:
8.1 Payment Default.
If Borrower fails to pay any of the Obligations within 3 days after their
due date. During the additional period the failure to cure the default is not an
Event of Default (but no Credit Extension will be made during the cure period);
8.2 Covenant Default.
If Borrower does not perform any obligation in Section 6 or violates any
covenant in Section 7 or does not perform or observe any other material term,
condition or covenant in this Agreement, any Loan Documents, or in any agreement
between Borrower and Bank and as to any default under a term, condition or
covenant that can be cured, has not cured the default within 10 days after it
occurs, or if the default cannot be cured within 10 days or cannot be cured
after Borrower's attempts within 10 day period, and the default may be cured
within a reasonable time, then Borrower has an additional period (of not more
than 30 days) to attempt to cure the default. During the additional time, the
failure to cure the default is not an Event of Default (but no Credit Extensions
will be made during the cure period);
8.3 Material Adverse Change.
(i) If there occurs a material impairment in the perfection or priority
of the Bank's security interest in the Collateral or in the value of such
Collateral (other than normal depreciation) which
10
is not covered by adequate insurance or (ii) if the Bank determines, based upon
information available to it and in its reasonable judgment, that there is a
reasonable likelihood that Borrower will fail to comply with one or more of the
financial covenants in Section 6 during the next succeeding financial reporting
period.
8.4 Attachment.
(i) Any material portion of Borrower's assets is attached, seized, levied
on, or comes into possession of a trustee or receiver and the attachment,
seizure or levy is not removed in 10 days; (ii) Borrower is enjoined,
restrained, or prevented by court order from conducting a material part of its
business; (iii) a judgment or other claim becomes a Lien on a material portion
of Borrower's assets; or (iv) a notice of lien, levy, or assessment is filed
against any of Borrower's assets by any government agency and not paid within 10
days after Borrower receives notice. These are not Events of Default if stayed
or if a bond is posted pending contest by Borrower (but no Credit Extensions
will be made during the cure period);
8.5 Insolvency.
(i) Borrower becomes insolvent; (ii) Borrower begins an Insolvency
Proceeding; or (iii) an Insolvency Proceeding is begun against Borrower and not
dismissed or stayed within 45 days (but no Credit Extensions will be made before
any Insolvency Proceeding is dismissed);
8.6 Other Agreements.
If there is a default in any agreement between Borrower and a third party
that gives the third party the right to accelerate any Indebtedness exceeding
$50,000 or that could reasonably be expected to cause a Material Adverse Change;
8.7 Judgments.
If a money judgment(s) in the aggregate of at least $50,000 is rendered
against Borrower and is unsatisfied and unstayed for 30 days and is not covered
by insurance (but no Credit Extensions will be made before the judgment is
stayed or satisfied); or
8.8 Misrepresentations.
If Borrower or any Person acting for Borrower makes any material
misrepresentation or material misstatement now or later in any warranty or
representation in this Agreement or in any communication delivered to Bank or to
induce Bank to enter this Agreement or any Loan Document.
9 BANK'S RIGHTS AND REMEDIES
--------------------------
9.1 Rights and Remedies.
When an Event of Default occurs and continues Bank may, without notice or
demand, do any or all of the following:
(a) Declare all Obligations immediately due and payable (but if an Event
of Default described in Section 8.5 occurs all Obligations are immediately due
and payable without any action by Bank);
(b) Stop advancing money or extending credit for Borrower's benefit under
this Agreement or under any other agreement between Borrower and Bank;
11
(c) Settle or adjust disputes and claims directly with account debtors
for amounts, on terms and in any order that Bank considers advisable;
(d) Make any payments and do any acts it considers necessary and
reasonable to protect its security interest in the Collateral. Borrower will
assemble the Collateral if Bank requires and make it available as Bank
designates. Bank may enter premises where the Collateral is located, take and
maintain possession of any part of the Collateral, and pay, purchase, contest,
or compromise any Lien which appears to be prior or superior to its security
interest and pay all expenses incurred. Borrower grants Bank a license to enter
and occupy any of its premises, without charge, to exercise any of Bank's rights
or remedies;
(e) Apply to the Obligations any (i) balances and deposits of Borrower it
holds, or (ii) any amount held by Bank owing to or for the credit or the account
of Borrower;
(f) Ship, reclaim, recover, store, finish, maintain, repair, prepare for
sale, advertise for sale, and sell the Collateral; and
(g) Dispose of the Collateral according to the Code.
9.2 Power of Attorney.
Effective only when an Event of Default occurs and continues, Borrower
irrevocably appoints Bank as its lawful attorney to: (i) endorse Borrower's name
on any checks or other forms of payment or security; (ii) sign Borrower's name
on any invoice or ▇▇▇▇ of lading for any Account or drafts against account
debtors, (iii) make, settle, and adjust all claims under Borrower's insurance
policies; (iv) settle and adjust disputes and claims about the Accounts directly
with account debtors, for amounts and on terms Bank determines reasonable; and
(v) transfer the Collateral into the name of Bank or a third party as the Code
permits. Bank may exercise the power of attorney to sign Borrower's name on any
documents necessary to perfect or continue the perfection of any security
interest regardless of whether an Event of Default has occurred. Bank's
appointment as Borrower's attorney in fact, and all of Bank's rights and powers,
coupled with an interest, are irrevocable until all Obligations have been fully
repaid and performed and Bank's obligation to provide Credit Extensions
terminates.
9.3 Accounts Collection.
When an Event of Default occurs and continues, Bank may notify any Person
owing Borrower money of Bank's security interest in the funds and verify the
amount of the Account. Borrower must collect all payments in trust for Bank and,
if requested by Bank, immediately deliver the payments to Bank in the form
received from the account debtor, with proper endorsements for deposit.
9.4 Bank Expenses.
If Borrower fails to pay any amount or furnish any required proof of
payment to third persons, Bank may make all or part of the payment or obtain
insurance policies required in Section 6.5, and take any action under the
policies Bank deems prudent. Any amounts paid by Bank are Bank Expenses and are
due and payable within 10 days of receipt of notice by Borrower, bearing
interest at the then applicable rate and secured by the Collateral. No payments
by Bank are deemed an agreement to make similar payments in the future or Bank's
waiver of any Event of Default.
9.5 Bank's Liability for Collateral.
If Bank complies with reasonable banking practices and Section 9-207 of
the Code, it is not liable for: (a) the safekeeping of the Collateral; (b) any
loss or damage to the Collateral; (c)
12
any diminution in the value of the Collateral; or (d) any act or default of any
carrier, warehouseman, bailee, or other person. Borrower bears all risk of loss,
damage or destruction of the Collateral.
9.6 Remedies Cumulative.
Bank's rights and remedies under this Agreement and the Loan Documents
are cumulative. Bank has all rights and remedies provided under the Code, by
law, or in equity. Bank's exercise of one right or remedy is not an election,
and Bank's waiver of any Event of Default is not a continuing waiver. Bank's
delay is not a waiver, election, or acquiescence. No waiver is effective unless
signed by Bank and then is only effective for the specific instance and purpose
for which it was given.
9.7 Demand Waiver.
Borrower waives demand, notice of default or dishonor, notice of payment
and nonpayment, notice of any default, nonpayment at maturity, release,
compromise, settlement, extension, or renewal of accounts, documents,
instruments, chattel paper, and guarantees held by Bank on which Borrower is
liable.
10 NOTICES
-------
10.1 Notices.
Unless otherwise provided in this Agreement, all notices or demands by
any party relating to this Agreement or any other agreement entered into in
connection herewith shall be in writing and (except for financial statements and
other informational documents which may be sent by first-class mail, postage
prepaid) shall be personally delivered or sent by a recognized overnight
delivery service, certified mail, postage prepaid, return receipt requested, or
by telefacsimile to Borrower or to Bank, as the case may be, at its addresses
set forth below:
If to Borrower Applied Imaging Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:__________________
FAX:___________________
and to Applied Imaging International Limited
_____________________________________
_____________________________________
Attn:________________________________
FAX:_________________________________
If to Bank Silicon Valley Bank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
11 CHOICE OF LAW , VENUE AND JURY TRIAL WAIVER
-------------------------------------------
California law governs the Loan Documents without regard to principles of
conflicts of law. Borrower and Bank each submit to the exclusive jurisdiction of
the State and Federal courts in Santa ▇▇▇▇▇ County, California.
13
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY CONTEMPLATED
TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS
WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT.
EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
12 GENERAL PROVISIONS
------------------
12.1 Successors and Assigns.
This Agreement binds and is for the benefit of the successors and
permitted assigns of each party. Borrower may not assign this Agreement or any
rights under it without Bank's prior written consent which may be granted or
withheld in Bank's discretion. Bank has the right, without the consent of or
notice to Borrower, to sell, transfer, negotiate, or grant participation in all
or any part of, or any interest in, Bank's obligations, rights and benefits
under this Agreement.
12.2 Indemnification.
Borrower will indemnify, defend and hold harmless Bank and its officers,
employees, and agents against: (a) all obligations, demands, claims, and
liabilities asserted by any other party in connection with the transactions
contemplated by the Loan Documents; and (b) all losses or Bank Expenses
incurred, or paid by Bank from, following, or consequential to transactions
between Bank and Borrower (including reasonable attorneys fees and expenses),
except for losses caused by Bank's gross negligence or willful misconduct.
12.3 Time of Essence.
Time is of the essence for the performance of all obligations in this
Agreement.
12.4 Severability of Provision.
Each provision of this Agreement is severable from every other provision
in determining the enforceability of any provision.
12.5 Amendments in Writing, Integration.
All amendments to this Agreement must be in writing and signed by
Borrower and Bank. This Agreement represents the entire agreement about this
subject matter, and supersedes prior negotiations or agreements. All prior
agreements, understandings, representations, warranties, and negotiations
between the parties about the subject matter of this Agreement merge into this
Agreement and the Loan Documents.
12.6 Counterparts.
This Agreement may be executed in any number of counterparts and by
different parties on separate counterparts, each of which, when executed and
delivered, are an original, and all taken together, constitute one Agreement.
12.7 Survival.
All covenants, representations and warranties made in this Agreement
continue in full force while any Obligations remain outstanding. The obligations
of Borrower in Section 12.2 to indemnify Bank will survive until all statutes of
limitations for actions that may be brought against Bank have run.
14
12.8 Confidentiality.
In handling any confidential information, Bank will exercise the same
degree of care that it exercises for its own proprietary information, but
disclosure of information may be made: (i) to Bank's subsidiaries or affiliates
in connection with their present or prospective business relations with
Borrower; (ii) to prospective transferees or purchasers of any interest in the
Loans; (iii) as required by law, regulation, subpoena, or other order, (iv) as
required in connection with Bank's examination or audit; and (v) as Bank
considers appropriate in exercising remedies under this Agreement. Confidential
information does not include information that either: (a) is in the public
domain or in Bank's possession when disclosed to Bank, or becomes part of the
public domain after disclosure to Bank; or (b) is disclosed to Bank by a third
party, if Bank does not know that the third party is prohibited from disclosing
the information.
12.9 Attorneys' Fees, Costs and Expenses.
In any action or proceeding between Borrower and Bank arising out of the
Loan Documents, the prevailing party will be entitled to recover its reasonable
attorneys' fees and other reasonable costs and expenses incurred, in addition to
any other relief to which it may be entitled.
13 DEFINITIONS
-----------
13.1 Definitions.
In this Agreement:
"Accounts" are all existing and later arising accounts, contract rights,
and other obligations owed Borrower in connection with its sale or lease of
goods (including licensing software and other technology) or provision of
services, all credit insurance, guaranties, other security and all merchandise
returned or reclaimed by Borrower and Borrower's Books relating to any of the
foregoing.
"Affiliate" of a Person is a Person that owns or controls directly or
indirectly the Person, any Person that controls or is controlled by or is under
common control with the Person, and each of that Person's senior executive
officers, directors, partners and, for any Person that is a limited liability
company, that Person's managers and members.
"Bank Expenses" are all audit fees and expenses and reasonable costs and
expenses (including reasonable attorneys' fees and expenses) for preparing,
negotiating, administering, defending and enforcing the Loan Documents
(including appeals or Insolvency Proceedings).
"Borrower's Books" are all Borrower's books and records including
ledgers, records regarding Borrower's assets or liabilities, the Collateral,
business operations or financial condition and all computer programs or discs or
any equipment containing the information.
"Business Day" is any day that is not a Saturday, Sunday or a day on
which the Bank is closed.
"Closing Date" is the date of this Agreement.
"Code" is the California Uniform Commercial Code.
"Collateral" is the property described on Exhibit A.
---------
"Contingent Obligation" is, for any Person, any direct or indirect
liability, contingent or not, of that Person for (i) any indebtedness, lease,
dividend, letter of credit or other obligation of another such as an obligation
directly or indirectly guaranteed, endorsed, co-made, discounted or
15
sold with recourse by that Person, or for which that Person is directly or
indirectly liable; (ii) any obligations for undrawn letters of credit for the
account of that Person; and (iii) all obligations from any interest rate,
currency or commodity swap agreement, interest rate cap or collar agreement, or
other agreement or arrangement designated to protect a Person against
fluctuation in interest rates, currency exchange rates or commodity prices; but
"Contingent Obligation" does not include endorsements in the ordinary course of
business. The amount of a Contingent Obligation is the stated or determined
amount of the primary obligation for which the Contingent Obligation is made or,
if not determinable, the maximum reasonably anticipated liability for it
determined by the Person in good faith; but the amount may not exceed the
maximum of the obligations under the guarantee or other support arrangement.
"Credit Extension" is each Term Loan or any other extension of credit by
Bank for Borrower's benefit.
"Current Assets" are amounts that under GAAP should be included on that
date as current assets on Borrower's consolidated balance sheet.
"Equipment" is all present and future machinery, equipment, tenant
improvements, furniture, fixtures, vehicles, tools, parts and attachments in
which Borrower has any interest.
"ERISA" is the Employment Retirement Income Security Act of 1974, and its
regulations.
"GAAP" is generally accepted accounting principles.
"Indebtedness" is (a) indebtedness for borrowed money or the deferred
price of property or services, such as reimbursement and other obligations for
surety bonds and letters of credit, (b) obligations evidenced by notes, bonds,
debentures or similar instruments, (c) capital lease obligations and (d)
Contingent Obligations.
"Insolvency Proceeding" are proceedings by or against any Person under
the United States Bankruptcy Code, or any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, compositions, extensions
generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.
"Inventory" is present and future inventory in which Borrower has any
interest, including merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products intended for sale or
lease or to be furnished under a contract of service, of every kind and
description now or later owned by or in the custody or possession, actual or
constructive, of Borrower, including inventory temporarily out of its custody or
possession or in transit and including returns on any accounts or other proceeds
(including insurance proceeds) from the sale or disposition of any of the
foregoing and any documents of title.
"Investment" is any beneficial ownership of (including stock, partnership
interest or other securities) any Person, or any loan, advance or capital
contribution to any Person.
"Lien" is a mortgage, lien, deed of trust, charge, pledge, security
interest or other encumbrance.
"Loan Documents" are, collectively, this Agreement, any note, or notes or
guaranties executed by Borrower or Guarantor, and any other present or future
agreement between Borrower and/or for the benefit of Bank in connection with
this Agreement, all as amended, extended or restated.
"Material Adverse Change" is defined in Section 8.3.
16
"Obligations" are debts, principal, interest, Bank Expenses and other
amounts Borrower owes Bank now or later, including cash management services,
letters of credit and foreign exchange contracts, if any and including interest
accruing after Insolvency Proceedings begin and debts, liabilities, or
obligations of Borrower assigned to Bank.
"Permitted Indebtedness" is:
(a) Borrower's indebtedness to Bank under this Agreement or the Loan
Documents;
(b) Indebtedness existing on the Closing Date and shown on the Schedule;
(c) Subordinated Debt;
(d) Indebtedness to trade creditors and with respect to surety bonds and
similar obligations incurred in the ordinary course of business;
(e) Indebtedness secured by Permitted Liens;
(f) Indebtedness of Borrower to any Subsidiary and Contingent Obligations
of any Subsidiary with respect to obligations of Borrower (provided that the
primary obligations are not prohibited hereby), and Indebtedness of any
Subsidiary to any other Subsidiary and Contingent Obligations of any Subsidiary
with respect to obligations of any other Subsidiary (provided that the primary
obligations are not prohibited hereby);
(g) Other Indebtedness not otherwise permitted by Section 7.4 not
exceeding One Hundred Thousand Dollars ($100,000) in the aggregate outstanding
at any time; and
(h) Extensions, refinancings, modifications, amendments and restatements
of any items of Permitted Indebtedness (a) through (f) above, provided that the
principal amount thereof is not increased or the terms thereof are not modified
to impose more burdensome terms upon Borrower or its Subsidiary, as the case may
be.
"Permitted Investments" are:
(a) Investments shown on the Schedule and existing on the Closing Date;
(b) (i) marketable direct obligations issued or unconditionally
guaranteed by the United States or its agency or any State maturing within 1
year from its acquisition, (ii) commercial paper maturing no more than 1 year
after its creation and having the highest rating from either Standard & Poor's
Corporation or ▇▇▇▇▇'▇ Investors Service, Inc., (iii) Bank's certificates of
deposit issued maturing no more than 1 year after issue, and (iv) any
Investments permitted by Borrower's investment policy, as amended from time to
time, provided that such investment policy (and any such amendment thereto) has
been approved by Bank;
(c) Investments consisting of the endorsement of negotiable instruments
for deposit or collection or similar transactions in the ordinary course of
Borrower;
(d) Investments accepted in connection with Transfers permitted by
Section 7.1;
(e) Investments of Subsidiaries in or to other Subsidiaries or Borrower
and Investments by Borrower in Subsidiaries;
(f) Investments consisting of (i) travel advances and employee relocation
loans and other employee loans and advances in the ordinary course of business,
and (ii) loans to employees, officers or directors relating to the purchase of
equity securities of Borrower or its Subsidiaries
17
pursuant to employee stock purchase plans or agreements approved by Borrower's
Board of Directors;
(g) Investments (including debt obligations) received in connection with
the bankruptcy or reorganization of customers or suppliers and in settlement of
delinquent obligations of, and other disputes with, customers or suppliers
arising in the ordinary course of business;
(h) Investments consisting of notes receivable of, or prepaid royalties
and other credit extensions, to customers and suppliers who are not Affiliates,
in the ordinary course of business; provided that this paragraph (h) shall not
apply to Investments of Borrower in any Subsidiary; and
(i) Joint ventures or strategic alliances in the ordinary course of
Borrower's business consisting of the non-exclusive licensing of technology, the
development of technology or the providing of technical support, provided that
any cash investments by Borrower do not exceed $100,000 in the aggregate in any
fiscal year.
"Permitted Liens" are:
(a) Liens existing on the Closing Date and shown on the Schedule or
arising under this Agreement or other Loan Documents;
(b) Liens for taxes, fees, assessments or other government charges or
levies, either not delinquent or being contested in good faith and for which
Borrower maintains adequate reserves on its Books, if they have no priority over
--
any of Bank's security interests;
(c) Purchase money Liens (i) on Equipment acquired or held by Borrower or
its Subsidiaries incurred for financing the acquisition of the Equipment, or
(ii) existing on equipment when acquired, if the Lien is confined to the
--
property and improvements and the proceeds of the equipment;
(d) Leases or subleases and licenses or sublicenses granted in the
ordinary course of Borrower's business, if the leases, subleases, licenses and
--
sublicenses permit granting Bank a security interest;
(e) Liens incurred in the extension, renewal or refinancing of the
indebtedness secured by Liens described in (a) through (c), but any extension,
---
renewal or replacement Lien must be limited to the property encumbered by the
existing Lien and the principal amount of the indebtedness may not increase;
(f) Liens arising from judgments, decrees or attachments in circumstances
not constituting an Event of Default under Section 8.4 or 8.7;
(g) Liens in favor of other financial institutions arising in connection
with Borrower's deposit accounts held at such institutions, provided that Bank
has a perfected security interest in the amounts held in such deposit accounts;
excluding liens in an amount up to UK 250 Pounds on behalf of AIIL;
(h) Liens against accounts receivables generated and billed by AIIL, that
are not considered United States domestic accounts receivables; and
(i) Other Liens not described above arising in the ordinary course of
business and not having or not reasonably likely to have a material adverse
effect on Borrower and its Subsidiaries taken as a whole.
"Person" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company association, trust, unincorporated
organization, association, corporation,
18
institution, public benefit corporation, firm, joint stock company, estate,
entity or government agency.
"Prime Rate" is Bank's most recently announced "prime rate," even if it
is not Bank's lowest rate.
"Responsible Officer" is each of the Chief Executive Officer, the
President, the Chief Financial Officer and the Controller of Borrower.
"Schedule" is any attached schedule of exceptions.
"Subordinated Debt" is debt incurred by Borrower subordinated to
Borrower's debt to Bank (and identified as subordinated by Borrower and Bank).
"Subsidiary" is for any Person, or any other business entity of which
more than 50% of the voting stock or other equity interests is owned or
controlled, directly or indirectly, by the Person or one or more Affiliates of
the Person.
"Tangible Net Worth" is, on any date, the consolidated total assets of
AIC and its Subsidiaries minus, (i) any amounts attributable to (a) goodwill,
-----
(b) intangible items such as unamortized debt discount and expense, Patents,
trade and service marks and names, Copyrights and research and development
expenses except prepaid expenses, and (c) reserves not already deducted from
assets, and (ii) Total Liabilities.
---
"Term Loan" a loan of up to $2,000,000.
"Term Loan Maturity Date" is September 9, 2002.
"Tier 1 Pricing" is defined in Section 2.2(a).
"Tier 1 Pricing Guideline":
(i) Debt/Tangible Net Worth Ratio. A ratio of Total Liabilities less
Subordinated Debt to Tangible Net Worth plus Subordinated Debt of not more than
2.00 to 1.00.
(ii) Tangible Net Worth. A Tangible Net Worth of at least $4,000,000.
(iii) Liquidity Coverage/Debt Service Coverage. Cash and cash
equivalents plus 50% of accounts receivable in which the account debtors primary
office is located in the United States of not less than the greater of either
(a) 2 times the outstanding Credit Extension under the Term Loan, or (b) 6
months of the Average Monthly Cash Losses, as determined as determined during
the most recent 3 month period. For calculation purposes, Average Monthly Cash
Losses means the average monthly change in cash from operations in accordance
with GAAP.
At such time as AIC maintains 2 consecutive fiscal quarters of a
3 month minimum Debt Service Coverage of 1.50 to 1.00, the Liquidity Coverage,
above, shall be replaced by a minimum Debt Service Coverage ratio requirement of
1.50 to 1.00. For calculation purposes, Debt Service Coverage is defined as the
sum of earnings after tax plus interest and non-cash expenses, divided by the
sum of current portion of long term debt plus interest.
(iv) Profitability. AIC will have a minimum net profit of $1 for each
quarter, except that AIC may suffer a loss not to exceed $2,100,000 for the
fiscal quarter ending September 30, 1999; $800,000 for the fiscal quarter ending
December 31, 1999; $800,000 for the fiscal quarter ending March 31, 2000;
$500,000 for the fiscal quarter ending June 30, 2000; $500,000 for the fiscal
quarter ending September 30, 2000; $250,000 for the fiscal quarter ending
19
December 31, 2000; $100,000 for the fiscal quarter ending March 31, 2001; and
$100,000 for the fiscal quarter ending June 30, 2001.
"Tier 2 Pricing" is a per annum rate of 1.25 percentage points above the
Prime Rate (decreasing to 1.00 percentage point above the Prime Rate if AIC
maiintains a Debt Service Coverage, as described n Section 6, for 2 consecutive
quarters).
"Tier 2 Pricing Guideline":
(i) Debt/Tangible Net Worth Ratio. A ratio of Total Liabilities less
Subordinated Debt to Tangible Net Worth plus Subordinated Debt of not more than
1.75 to 1.00, decreasing to 1.50 to 1.00 beginning month ending April 30, 2000
and thereafter.
(ii) Tangible Net Worth. A Tangible Net Worth of at least $5,000,000.
(iii) Liquidity Coverage/Debt Service Coverage. Cash and cash
equivalents plus 50% of accounts receivable in which the account debtors primary
office is located in the United States of not less than the greater of either
(a) 2 times the outstanding Credit Extension under the Term Loan, or (b) 6
months of the Average Monthly Cash Losses, as determined as determined during
the most recent 3 month period. For calculation purposes, Average Monthly Cash
Losses means the average monthly change in cash from operations in accordance
with GAAP.
At such time as AIC maintains 2 consecutive fiscal quarters of a
3 month minimum Debt Service Coverage of 1.50 to 1.00, the Liquidity Coverage,
above shall be replaced by a minimum Debt Service Coverage ratio requirement of
1.50 to 1.00. For calculation purposes, Debt Service Coverage is defined as the
sum of earnings after tax plus interest and non-cash expenses, divided by the
sum of current portion of long term debt plus interest.
(iv) Profitability. AIC will have a minimum net profit of $1 for each
quarter, except that AIC may suffer a loss not to exceed $2,100,000 for the
fiscal quarter ending September 30, 1999; $800,000 for the fiscal quarter ending
December 31, 1999; $800,000 for the fiscal quarter ending March 31, 2000;
$500,000 for the fiscal quarter ending June 30, 2000; $500,000 for the fiscal
quarter ending September 30, 2000; and $250,000 for the fiscal quarter ending
December 31, 2000.
"Total Liabilities" is on any day, obligations that should, under GAAP,
be classified as liabilities on AIC's consolidated balance sheet, including all
Indebtedness, and current portion Subordinated Debt allowed to be paid, but
excluding all other Subordinated Debt.
20
BORROWER:
Applied Imaging Corp.
By:__________________________________
Title:_______________________________
Applied Imaging International Limited
By:__________________________________
Title:_______________________________
BANK:
SILICON VALLEY BANK
By:__________________________________
Title:_______________________________
21
Schedule to Loan Agreement dated September 9, 1999 between Silicon Valley
Bank and Applied Imaging Corp.
In reference to paragraphs 7.4 and 13.1 ("Permitted Indebtedness"), the Bank
acknowledges that Applied Imaging International Limited has a (Pound)750,000
credit facility with NatWest of which (Pound)500,000 is unsecured and
(Pound)250,000 is cash secured. Applied Imaging Corp. provides a corporate
guarantee for this loan. This guarantee shall not be in violation of the
aforementioned agreement.
EXHIBIT A
---------
The Collateral consists of all of AIC's right, title and interest in and to
the following:
All goods and equipment now owned or hereafter acquired, including, without
limitation, all machinery, fixtures, vehicles (including motor vehicles and
trailers), and any interest in any of the foregoing, and all attachments,
accessories, accessions, replacements, substitutions, additions, and
improvements to any of the foregoing, wherever located;
All inventory, now owned or hereafter acquired, including, without
limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is temporarily out of Borrower's custody or possession or in
transit and including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the
foregoing and any documents of title representing any of the above;
All contract rights and general intangibles now owned or hereafter
acquired, including, without limitation, goodwill, trademarks, servicemarks,
trade styles, trade names, patents, patent applications, leases, license
agreements, franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, infringements, claims, computer programs, computer
discs, computer tapes, literature, reports, catalogs, design rights, income tax
refunds, payments of insurance and rights to payment of any kind;
All now existing and hereafter arising accounts, contract rights,
royalties, license rights and all other forms of obligations owing to Borrower
arising out of the sale or lease of goods, the licensing of technology or the
rendering of services by Borrower, whether or not earned by performance, and any
and all credit insurance, guaranties, and other security therefor, as well as
all merchandise returned to or reclaimed by Borrower;
All documents, cash, deposit accounts, securities, securities entitlements,
securities accounts, investment property, financial assets, letters of credit,
certificates of deposit, instruments and chattel paper now owned or hereafter
acquired and Borrower's Books relating to the foregoing;
All copyright rights, copyright applications, copyright registrations and
like protections in each work of authorship and derivative work thereof, whether
published or unpublished, now owned or hereafter acquired; all trade secret
rights, including all rights to unpatented inventions, know-how, operating
manuals, license rights and agreements and confidential information, now owned
or hereafter acquired; all mask work or similar rights available for the
protection of semiconductor chips, now owned or hereafter acquired; all claims
for damages by way of any past, present and future infringement of any of the
foregoing; and
All AIC's Books relating to the foregoing and any and all claims, rights
and interests in any of the above and all substitutions for, additions and
accessions to and proceeds thereof.
Notwithstanding the foregoing, the security interest granted herein does
not extend to and the term "Collateral" does not include any license or contract
rights to the extent (i) the granting of a security interest in it would be
contrary to applicable law, or (ii) that such rights are nonassignable by their
terms (but only to the extent such prohibition is enforceable under applicable
law, including, without limitation, Section 9318(4) of the Code) without the
consent of the licensor or other party (but only to the extent such consent has
not been obtained). Except as disclosed on the Schedule, Borrower is not a
party to, nor is bound by, any license or other agreement that prohibits or
otherwise restricts Borrower from granting a security interest in Borrower's
interest in such license or agreement or any other property. Without prior
notice to Bank, Borrower shall not enter into, or become bound by, any such
license or agreement which is reasonably likely to have a material impact on
Borrower's business or financial condition. Borrower shall take such steps as
Bank requests to obtain the consent of, or waiver by, any person whose consent
or waiver is necessary for such licenses or contract rights to be deemed
"Collateral" and for Bank to have a security interest in it that might otherwise
be restricted or prohibited by law or by the terms of any such license or
agreement, whether now existing or entered into in the future.
EXHIBIT B
---------
LOAN PAYMENT/ADVANCE TELEPHONE REQUEST FORM
DEADLINE FOR SAME DAY PROCESSING IS 3:00 P.M., P.S.T.
TO: CENTRAL CLIENT SERVICE DIVISION DATE:
-----------------------
FAX#: (▇▇▇) ▇▇▇-▇▇▇▇ TIME:
-----------------------
--------------------------------------------------------------------------------
FROM: Applied Imaging Corp. and Applied Imaging International Limited
---------------------------------------------------------------
CLIENT NAME (BORROWER)
REQUESTED BY:
-------------------------------------------------------------------
AUTHORIZED SIGNER'S NAME
AUTHORIZED SIGNATURE:
-----------------------------------------------------------
PHONE NUMBER:
-------------------------------------------------------------------
FROM ACCOUNT # TO ACCOUNT #
---------------- -------------------------------------
REQUESTED TRANSACTION TYPE REQUESTED DOLLAR AMOUNT
-------------------------- -----------------------
PRINCIPAL INCREASE (ADVANCE) $
-------------------------------------------
PRINCIPAL PAYMENT (ONLY) $
-------------------------------------------
INTEREST PAYMENT (ONLY) $
-------------------------------------------
PRINCIPAL AND INTEREST (PAYMENT) $
-------------------------------------------
OTHER INSTRUCTIONS:
-------------------------------------------------------------
--------------------------------------------------------------------------------
All Borrower's representations and warranties in the Loan and Security Agreement
are true, correct and complete in all material respects on the date of the
telephone request for and Advance confirmed by this Borrowing Certificate; but
those representations and warranties expressly referring to another date shall
be true, correct and complete in all material respects as of that date.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
BANK USE ONLY
TELEPHONE REQUEST:
-----------------
The following person is authorized to request the loan payment transfer/loan
advance on the advance designated account and is known to me.
------------------------------------- ---------------------------------
Authorized Requester Phone #
------------------------------------- ---------------------------------
Received By (Bank) Phone #
----------------------------------------------------------------
Authorized Signature (Bank)
--------------------------------------------------------------------------------
EXHIBIT C
---------
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FROM: APPLIED IMAGING CORP.
The undersigned authorized officer of Applied Imaging Corp. ("Borrower")
certifies that under the terms and conditions of the Loan and Security Agreement
between Borrower and Bank (the "Agreement"), (i) Borrower is in complete
compliance for the period ending _______________ with all required covenants
except as noted below and (ii) all representations and warranties in the
Agreement are true and correct in all material respects on this date. Attached
are the required documents supporting the certification. The Officer certifies
that these are prepared in accordance with Generally Accepted Accounting
Principles (GAAP) consistently applied from one period to the next except as
explained in an accompanying letter or footnotes. The Officer acknowledges that
no borrowings may be requested at any time or date of determination that
Borrower is not in compliance with any of the terms of the Agreement, and that
compliance is determined not just at the date this certificate is delivered.
Please indicate compliance status by circling Yes/No under "Complies"
column.
Reporting Covenant Required Complies
------------------ -------- --------
Monthly financial statements + CC Monthly within 20 days Yes No
Annual (Audited) FYE within 90 days Yes No
10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No
Financial Covenant Required Actual Complies
------------------ -------- ------ --------
Tier 1 Pricing Guideline
------------------------
Maintain on a Monthly Basis:
Minimum Tangible Net Worth $4,000,000 $_________ Yes No
Maximum Debt/Tangible Net Worth 2.00:1.00 _____:1.00 Yes No
Minimum Liquidity Coverage* Yes No
Profitability: Quarterly $_________ Yes No
Losses not to exceed: $2,100,000 for the fiscal quarter Yes No
ending September 30, 1999; $800,000 for
the fiscal quarter ending December 31, 1999;
$800,000 for the fiscal quarter ending
March 31, 2000; $500,000 for the fiscal
quarter ending June 30, 2000; $500,000 for
the fiscal quarter ending September 30,
2000; $250,000 for the fiscal quarter
ending December 31, 2000; $100,000 for the
fiscal quarter ending March 31, 2001; and
$100,000 for the fiscal quarter ending
June 30, 2001.
Tier 2 Pricing Guideline (to be maintained for Tier 2 Pricing)
----------------------------------------------------------------
Maintain on a Monthly Basis:
Minimum Tangible Net Worth $5,000,000 $___________ Yes No
Maximum Debt/Tangible Net Worth 1.75:1.00
Decreasing to 1.50
beginning 4/30/2000
and thereafter _______:1.00 Yes No
Minimum Liquidity Coverage* Yes No
Profitability: Quarterly $_________ Yes No
Losses not to exceed: $2,100,000 for the fiscal quarter ending Yes No
September 30, 1999; $800,000 for the
fiscal quarter ending December 31, 1999;
$800,000 for the fiscal quarter ending
March 31, 2000; $500,000 for the fiscal
quarter ending June 30, 2000; $500,000 for
the fiscal quarter ending September 30,
2000; and $250,000 for the fiscal quarter
ending December 31, 2000.
* Cash and cash equivalents plus 50% of accounts receivable in which the
account debtors primary office is located in the United States of not less than
the greater of either (a) 2 times the outstanding Credit Extension under the
Term Loan, or (b) 6 months of the Average Monthly Cash Losses, as determined as
determined during the most recent 3 month period (for calculation purposes,
Average Monthly Cash Losses means the average monthly change in cash from
operations in accordance with GAAP). At such time as Borrower maintains 2
consecutive fiscal quarters of a 3 month minimum Debt Service Coverage of 1.50
to 1.00, the Liquidity Coverage, above shall be replaced by a minimum Debt
Service Coverage ratio requirement of 1.50 to 1.00. For calculation purposes,
Debt Service Coverage is defined as the sum of earnings after tax plus interest
and non-cash expenses, divided by the sum of current portion of long term debt
plus interest.
------------------------------------
BANK USE ONLY
Received by:
------------------------
AUTHORIZED SIGNER
Date:
-------------------------------
Verified:
---------------------------
AUTHORIZED SIGNER
Date:
-------------------------------
Compliance Status: Yes No
------------------------------------
Comments Regarding Exceptions: See Attached.
Sincerely,
Applied Imaging Corp.
---------------------------------
Signature
---------------------------------
Title
---------------------------------
Date
SILICON VALLEY BANK
PRO FORMA INVOICE FOR LOAN CHARGES
BORROWER: Applied Imaging Corp.
Applied Imaging International Limited
LOAN OFFICER: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
DATE: September 9, 1999
Term Loan Fee $10,000.00
Credit Report 35.00
UCC Search Fee 75.00
UCC Filing Fee 20.00
Documentation Fee 750.00
TOTAL FEE DUE $10,880.00
Less Deposit 5,000.00
NET DUE $ 5,880.00
==========
Please indicate the method of payment:
{_} A check for the total amount is attached.
{_} Debit DDA # __________________ for the total amount.
{_} Loan proceeds
Borrower:
By:
------------------------------------------------
(Authorized Signer)
----------------------------------------------------
Silicon Valley Bank (Date)
Account Officer's Signature
NEGATIVE PLEDGE AGREEMENT
This Negative Pledge Agreement is made as of September 9, 1999 by and between
Applied Imaging Corp. ("Borrower") and Silicon Valley Bank ("Bank").
In connection with, among other documents, the Loan and Security Agreement (the
"Loan Documents") being concurrently executed herewith between Borrower and
Bank, Borrower agrees as follows:
1. Borrower shall not sell, transfer, assign, mortgage, pledge, lease,
grant a security interest in, or encumber any of Borrower's
intellectual property, including, without limitation, the following:
a. Any and all copyright rights, copyright applications, copyright
registrations and like protections in each work or authorship and
derivative work thereof, whether published or unpublished and
whether or not the same also constitutes a trade secret, now or
hereafter existing, created, acquired or held;
b. All mask works or similar rights available for the protection of
semiconductor chips, now owned or hereafter acquired;
c. Any and all trade secrets, and any and all intellectual property
rights in computer software and computer software products now or
hereafter existing, created, acquired or held;
d. Any and all design rights which may be available to Borrower now
or hereafter existing, created, acquired or held;
e. All patents, patent applications and like protections including,
without limitation, improvements, divisions, continuations,
renewals, reissues, extensions and continuations-in-part of the
same, including without limitation the patents and patent
applications;
f. Any trademark and servicemark rights, whether registered or not,
applications to register and registrations of the same and like
protections, and the entire goodwill of the business of Borrower
connected with and symbolized by such trademarks, including
without limitation;
g. Any and all claims for damages by way of past, present and future
infringements of any of the rights included above, with the
right, but not the obligation, to ▇▇▇ for and collect such
damages for said use or infringement of the intellectual property
rights identified above;
h. All licenses or other rights to use any of the Copyrights,
Patents, Trademarks or Mask Works, and all license fees and
royalties arising from such use to the extent permitted by such
license or rights; and
i. All amendments, extensions, renewals and extensions of any of the
Copyrights, Trademarks, Patents, or Mask Works; and
j. All proceeds and products of the foregoing, including without
limitation all payments under insurance or any indemnity or
warranty payable in respect of any of the foregoing;
2. It shall be an event of default under the Loan Documents between
Borrower and Bank if there is a breach of any term of this Negative
Pledge Agreement.
3. Capitalized terms used but not otherwise defined herein shall have the
same meaning as in the Loan Documents.
BORROWER:
Applied Imaging Corp.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
BANK:
SILICON VALLEY BANK
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
2
CORPORATE BORROWING RESOLUTION
Borrower: Applied Imaging Corp. Bank: Silicon Valley Bank
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
I, the Secretary or Assistant Secretary of Applied Imaging Corp. ("Borrower"),
CERTIFY that Borrower is a corporation existing under the laws of the State of
Delaware.
I certify that at a meeting of Borrower's Directors (or by other authorized
corporate action) duly held the following resolutions were adopted.
It is resolved that any one of the following officers of Borrower, whose name,
title and signature is below:
NAMES POSITIONS ACTUAL SIGNATURES
----- --------- -----------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
may act for Borrower and:
Borrow Money. Borrow money from Silicon Valley Bank ("Bank").
Execute Loan Documents. Execute any loan documents Bank requires.
Grant Security. Grant Bank a security interest in any of Borrower's
assets.
Negotiate Items. Negotiate or discount all drafts, trade acceptances,
promissory notes, or other indebtedness in which Borrower has an interest
and receive cash or otherwise use the proceeds.
Letters of Credit. Apply for letters of credit from Bank.
Foreign Exchange Contracts. Execute spot or forward foreign exchange
contracts.
Issue Warrants. Issue warrants for Borrower's stock.
Further Acts. Designate other individuals to request advances, pay fees
and costs and execute other documents or agreements (including documents or
agreement that waive Borrowers right to a jury trial) they think necessary
to effectuate these Resolutions.
Further resolved that all acts authorized by these Resolutions and performed
before they were adopted are ratified. These Resolutions remain in effect and
Bank may rely on them until Bank receives written notice of their revocation.
I certify that the persons listed above are Borrower's officers with the titles
and signatures shown following their names and that these resolutions have not
been modified are currently effective.
CERTIFIED TO AND ATTESTED BY:
X
------------------------------------------------------
*Secretary or Assistant Secretary
X
------------------------------------------------------
*NOTE: In case the Secretary or other certifying officer is designated by the
foregoing resolutions as one of the signing officers, this resolution should
also be signed by a second Officer or Director of Borrower.
CORPORATE BORROWING RESOLUTION
Borrower: Applied Imaging International Limited Silicon Valley Bank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
I, the Secretary or Assistant Secretary of Applied Imaging International Limited
("Borrower"), certify that Borrower is a corporation existing under the laws of
Wales, England.
I certify that at a meeting of Borrower's Directors (or by other authorized
corporate action) duly held the following resolutions were adopted.
It is resolved that any one of the following officers of Borrower, whose name,
title and signature is below:
NAME TITLE SIGNATURE
---- ----- ---------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
may act for Borrower and:
Borrow Money. Borrow money from Silicon Valley Bank ("Bank").
Execute Loan Documents. Execute any loan documents Bank requires.
Grant Security. Grant Bank a security interest in any of Borrower's
assets.
Negotiate Items. Negotiate or discount all drafts, trade acceptances,
promissory notes, or other indebtedness in which Borrower has an interest
and receive cash or otherwise use the proceeds.
Letters of Credit. Apply for letters of credit from Bank.
Foreign Exchange Contracts. Execute spot or forward foreign exchange
contracts.
Issue Warrants. Issue warrants for Borrower's stock.
Further Acts. Designate other individuals to request advances, pay fees
and costs and execute other documents or agreements (including documents or
agreement that waive Borrowers right to a jury trial) they think necessary
to effectuate these Resolutions.
Further resolved that all acts authorized by these Resolutions and performed
before they were adopted are ratified. These Resolutions remain in effect and
Bank may rely on them until Bank receives written notice of their revocation.
I certify that the persons listed above are Borrower's officers with the titles
and signatures shown following their names and that these resolutions have not
been modified are currently effective.
X
-------------------------------------- --------------
*Secretary or Assistant Secretary Date
X
---------------------------------------
* If the certifying officer is designated as a signer in these resolutions then
another corporate officer must also sign.