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EXHIBIT 4.7
[BANK OF AMERICA LOGO]
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[ ] Business Line [X] Business Loan
Agreement
Secured
TO: Bank of America National Trust and Savings Association
Business Lending Services #1738
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CUSTOMER NAME LINE OF CREDIT/LOAN NO. CREDIT LIMITATION AMOUNT
MEDICAL SCIENCE SYSTEMS, INC. 0740829-9002 $500,000 .00
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BRANCH NO. DEPOSIT ACCOUNT NO. ("ACCOUNTS")
6155 06940-18831
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INTRODUCTION. This Agreement dated as of June 27, 1997, is entered into between
MEDICAL SCIENCE SYSTEMS, INC. _________________________________________________
_______________________________________________________________________________
(the "Borrower") and Bank of America National Trust and Savings Association
(the "Bank") concerning the Borrowing Business Loan credit facility with the
Bank. In consideration of, and to induce the Bank to make available to the
Borrower the Credit facility described herein, the Borrower agrees and warrants
as follows:
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[ ] I. THE LINE OF CREDIT
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A. NATURE OF THE LINE. If the box above is checked, the Bank has made
available to the Borrower a revolving line of credit ("Line") in the
principal amount shown above as "Credit Limit" subject to the terms and
conditions of this Agreement. This means that the Borrower, or any
person provided for in Section I.C. and I.D. below, may request an
advance of all or a part of the Line at any time while the Line is
available. Any amount repaid by the Borrower becomes available for the
Borrower to reborrow after the expiration of a hold period for payments
by personal checks of up to eleven business days. If the Bank delays the
availability of funds, it will mail to the Borrower a notice within one
business day.
B. ADVANCES. Advances under the Line may be in any amount not to exceed
the Credit Limit remaining available. Advances may be made by writing a
credit line check or by telephone authorization deposited into the
Borrower's account listed above, if any, or such other of the Borrower's
accounts with the Bank as designated by the Borrower in writing (the
"Account").
C. TELEPHONE AUTHORIZATION. The Bank may honor telephone instructions for
advances or repayments given by any one of the individuals who signed
the application for this Line on the Borrower's behalf, or any other
individual designated by any one of such authorized individuals.
Repayments authorized by telephone shall be withdrawn from the
Borrower's Account. The Borrower indemnifies and excuses the Bank
(including its officers, employees, and agents) from all liability,
loss, and costs in connection with any act resulting from telephone
instructions it reasonably believes are made by any individual
authorized by the Borrower to give such instructions. This indemnity and
excuse will survive this Agreement's termination.
D. CREDIT LINE CHECKS. The Bank will issue checks to the Borrower at no
cost. The Borrower may borrow money under the Line (up to the Credit
Limit remaining available) by writing checks. The Borrower agrees not to
write checks in an amount less than $300, and not to write more than
five checks in any one billing cycle. The Bank may charge a fee for any
checks written for a lesser amount, or if more than the permitted number
of checks are written. Each paid check will be charged to the Line.
checks may be signed by any one individual who signed the application
for credit. Only one signature shall be required on any check.
E. OVERDRAFT PROTECTION.
[ ] If the box to the left is checked, the following paragraph applies:
the Line has been linked for overdraft protection to the following
business checking account with the Bank: N/A. If the business checking
account is overdrawn, the Bank will transfer funds from the Line to
cover the overdraft in multiples of $50 as long as there is sufficient
available credit on the Line. Overdraft protection is not accessible by
in-branch transaction, ATM withdrawal or transfer through your home or
office computer.
F. DEFAULT. The Bank may, in its sole discretion, refuse to make advances
or pay checks hereunder if an Event of Default has occurred (as defined
in Section IX, below).
G. AVAILABILITY OF THE LINE. Advances under the Line will be available
until the earlier of the following (the "Termination Date"):
(1) _____________________; or (2) the date the Bank terminates the
Line because of an Event of Default pursuant to Section IX; or (3) the
date the Line is cancelled by the Borrower pursuant to Section IV.A.
On the Termination Date, no further advances will be available to the
Borrower. The entire outstanding principal balance of the Line,
together with all accrued and unpaid interest thereon, and fees and
charges owing in connection therewith, shall be due and payable in full
on the Termination Date.
H. CREDIT LIMIT. A credit limit has been set on the Line and is shown
above as "Credit Limit". The Borrower agrees not to allow the principal
amount which the Borrower owes at any one time under this Agreement to
exceed the Credit Limit. The Bank does not have to honor any request for
an advance or credit line check which, when added to the unpaid balance,
would exceed the Credit Limit.
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[X] II. THE LOAN
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A. AMOUNT. If the box above is checked, the Bank has made available to
the Borrower a term loan ("Loan") in the principal amount shown above
as "Loan Amount" subject to the terms and conditions of this Agreement.
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[ ] III. PAYMENTS, INTEREST AND FEES
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A. PAYMENTS.
1. AMOUNT. The Borrower promises to pay to the Bank principal and/or
interest payments as indicated by the box checked below.
[ ] a. INTEREST ONLY. The minimum payment due each month .... be the
amount of accrued interest.
[ ] b. PRINCIPAL AND INTEREST. Principal and interest in ..........
monthly installments of ______________________________________.
_______________________________ Dollars ($____________________
[X] c. PRINCIPAL PLUS INTEREST. Principal in 60 monthly installments
of Eight Thousand Three Hundred Thirty Four and 00/100 Dollars
($8,334.00) plus interest.
In addition, the Borrower must pay any amounts past due an amount that
exceeds the Credit Limit, if applicable, and any other charges assessed
as described in this Agreement.
2. PAYMENT DATE. The payments shall be due and payable monthly on
the 1st day of each month, beginning August 1, 1997 and continuing
until July 1, 2002, on which date any unpaid principal and interest
shall be paid in full. If the payment date falls on a Saturday or
Sunday, or on a holiday on which the Bank is closed, the payment shall
be due on the next business day. If this is a Loan, the principal and
interest may also at the Bank's option be due and payable in full upon
an Event of Default in accordance with Section IX, herein.
3. PAYMENT ALLOCATION. All sums received from the Borrower for
application to the Line or Loan shall be applied to the Borrower...
obligation under the Line or Loan in such order as determine by the
Bank.
4. PREPAYMENT. The Borrower can pay the balance of the credit
outstanding under this Agreement in full or part at any time without
premium or penalty. The Bank may accept partial payments, whether or
not marked "paid in full" without losing the Bank's rights under this
Agreement.
5. PAYMENT ADDRESS. Payments should be made to:
Bank of America National Trust and Savings Association
Business Lending Services #1738
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6. CREDITING THE PAYMENT. If the Bank receives the payment at the
above address by 9:00 a.m. on any business day, except Saturday or
Sunday, the Bank will credit the payment to the amount outstanding
under this Agreement as of that day. Payments may also be made at any
of the Bank's California branches. Payments received at a branch after
4 p.m. (7 p.m. on Fridays) or on a Saturday, Sunday or holiday will be
posted the following business day.
7. AUTOMATIC REPAYMENT.
[X] If the box to the left is checked, the following paragraphs apply.
a. AUTOMATIC PAYMENT SERVICE. The Borrower hereby chooses to have its
principal and interest payments made pursuant to the Bank's Automatic
Payment Service, and authorizes the Bank to collect all sums due
hereunder by charging the full amount hereof to the Borrower's Account.
Should there be insufficient funds in the Account to pay when due all
or any portion of the amount due, the full amount of such deficiency
shall be immediately due and payable by the Borrower.
b. TERMINATION. If, for any reason during the term of this Agreement,
this Automatic Payment Service is terminated by the Borrower or the
Bank, the interest rate under this Agreement will increase by one (1)
percentage point, the amount of each payment will be increased
accordingly, and the Borrower agrees to pay a documentation fee of $75.
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B. Interest Rate
1. Interest Rate Options. The principal balance outstanding under this
Agreement shall bear interest per annum equal to:
/x/ a. Variable Rate. The Bank's Reference Rate plus 1,750 percentage
points, as said Reference rate may change from time to time. The Reference Rate
is the rate of interest publicly announced from time to time by the Bank in San
Francisco, California as its Reference Rate. The Reference Rate is set by the
Bank based on various factors, including the Bank's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans. The Bank may price loans to its customers at, above, or
below the Reference Rate. Any change in the Reference Rate shall take effect
at the opening of business on the day specified in the public announcement of a
change in the Bank's Reference Rate.
/ / b. Fixed Rate. A fixed rate of N/A percentage points.
2. Computation of Interest and Fees. All computations of interest and fees made
or called for hereunder shall be calculated on the basis of:
/x/ a. 360 day year. A 360 day year and the actual number of days elapsed.
This results in more interest or a higher fee than if a 365 day year is used.
/ / b. 365 day year. An actual 365/366 day year and the actual number of
days elapsed.
3. Default Rate. Upon the occurrence and during the continuation of any
default under this Agreement, amounts outstanding under this Agreement will at
the option of the Bank bear interest at a rate per annum which is five (5)
percentage points higher than the rate of interest otherwise provided under
this Agreement. This will not constitute a waiver of any default.
C. Fees
1. Promise to Pay Fees and Costs. The Borrower promises to pay according
to the terms of this Agreement, all amounts outstanding and fees and costs
which may be assessed under this Agreement including reasonable attorney's fees
(which may include the allocated costs of in-house counsel), court costs, and
collection costs.
2. Loan Fee. Upon the date of this Agreement, the Borrower will pay a
nonrefundable loan fee of $5,000.00. If this is a Line, this fee may be paid by
check, charged to the Account, or treated as an advance. The advance will be
subject to all the terms of this Agreement.
3. Overdraft Transfer Fee. Each overdraft advance shall be subject to an
overdraft transfer fee equal to 2 percent (2%) of the amount of the advance,
subject to a minimum of $3 and a maximum of $15.
4. Late Fees. A late charge of 6% of the unpaid portion of the payment
amount, with a minimum fee of $6.00 and a maximum fee of $15.00, may be
assessed if payment is not received within fifteen days after the date the
payment is due. This fee may be charged by the Bank at its option.
5. Overlimit Fees. An overlimit fee may be assessed each time the Borrower
exceeds the Credit Limit, regardless of whether the Bank permits the Borrower
to exceed the Credit Limit.
6. Returned Item Fee. The Borrower may be charged a returned item fee each
time a payment is returned or if there are insufficient funds in the Account
when a payment is attempted through Automatic Payment Service.
IV. OTHER TERMS
A. Cancellation by the Borrower. The Borrower may cancel this Agreement by
written notice to the Bank. The Borrower's request will take effect at the
time it is received by the Bank. If there is more than one Borrower, the
Bank may treat a request by one of them under this paragraph as a request by
all of them. At the time of cancellation, the outstanding balance will be
immediately due and payable.
B. Statement Copies. A fee may be charged for each statement copy requested,
plus an hourly charge for any necessary research time.
C. Stop Payments on Credit Line Checks. The Borrower may stop payment on a
check as long as the request is received by the Bank prior to the time the
check is posted to the Line. The request must include the information which
the Bank requires. The Borrower may be charged a fee to place or renew a
stop payment order. A stop payment shall be effective for 180 days. The
Borrower must renew the stop payment if it wishes the stop payment to be
effective for a longer period. In some cases, the Bank may pay a check even
if a stop payment is in effect. For example, if a branch of the Bank or
another person or entity becomes a "holder in due course" of a check, the
Bank may still pay the check and post the amount to the Line.
D. Check Certification. The Bank will not certify checks.
E. Lost or Stolen Checks. The Borrower must notify the Bank immediately at the
Bank of America Address shown at the top of the Agreement if any checks are
lost or stolen.
F. Cancelled Checks. The Bank will not return the cancelled checks to the
Borrower, but will retain photocopies for eight (8) years. The Borrower
agrees to examine the monthly billing statement on the Account promptly in
order to identify improper or unauthorized transactions. If the Borrower
requests a copy of a check, the Borrower must write a letter to the Bank,
including the Account Check posted to the billing statement. The Bank may
charge a fee for providing a copy of checks.
G. Authorized Use. The Checks issued to the Borrower must be used only by the
Borrower. If the Borrower permits anyone else to use its checks without the
Bank's consent, the Borrower will be obligated to pay for any advances
obtained by that person plus any interest and other charges attributable to
such advances.
H. Return of Checks. At the Bank's request, the Borrower will return to the
Bank any unused checks if the Account is terminated. If any such event
occurs, the Bank may return unpaid any checks presented against the Account.
V. SECURITY
A. Security. As security for payment of this Line or Loan and all obligations
provided for herein, the Borrower grants to the Bank a security interest in
the property described below. The Borrower also grants to the Bank a
security interest in all renewals of this property, other property
substituted for it, and proceeds.
ACCOUNTS RECEIVABLE & INVENTORY
O VIN - MISCELLANEOUS EQUIPMENT
B. Stock/Bonds.
1. Margin Call. If at any time the Credit Limit, if a Line, or
the outstanding balance, if a Loan, to collateral value ratio exceeds 60%
for a Line or Loan secured partially or completely by stock, or 65% for a
Line or Loan secured only by bonds, the Bank may determine collateral value
using any reasonable method. If the additional collateral is not received
within the time given in the notice, the Borrower will be in default and the
Bank may terminate the Line or Loan as provided in Section IX.
2. Restriction on Use of Funds. The Borrower agrees not to use the Line or
Loan to finance the purchase of margin stock (as defined by Regulation U) or
to pay obligations incurred in the purchase of such securities.
C. Insurance. The Borrower agrees to maintain all risk property damage
insurance policies covering the tangible property comprising the security.
Each insurance policy must be in an amount acceptable to the Bank. The
insurance must be issued by an insurance company acceptable to the Bank and
must include a lender's loss payable endorsement in favor of the Bank in a
form acceptable to the Bank. If the Borrower fails to maintain insurance on
the security described in Paragraph A, above, the Bank may, in its sole
discretion, obtain such insurance and the cost of the premiums shall be
payable on demand with interest at the interest rate herein.
VI. CONDITIONS
The Bank must receive the following items in form and content acceptable to
the Bank before it is required to extend any credit to the Borrower under
this Agreement.
A. Authorization. Evidence that the execution, delivery and performance by the
Borrower of this Agreement and any instrument or agreement required under
this Agreement have been duly authorized.
B. Guaranties. Guaranties signed by those persons and in the amounts as
required.
C. Security Agreement. Signed original security agreement, financing
statements and fixture filings (together with collateral in which the Bank
requires a possessory security interest), which the Bank requires.
D. Evidence of Priority. Evidence that security interests and liens in favor
of the Bank are valid, enforceable, and prior to all others' rights and
interests, except those the Bank consents to in writing.
VII. FINANCIAL STATEMENTS
The Borrower represents and warrants that:
A. Statements and data submitted in writing by the Borrower to the Bank in
connection with this request for credit are true and correct, and said
statements truly present the financial condition of the Borrower as of the
date thereof and the results of the operations of the Borrower for the
period covered thereby, and have been prepared on a consistently maintained
basis, in accordance with generally accepted accounting principles or
another basis acceptable to the Bank. Since such date there have been no
material adverse changes in the ordinary course of business. The Borrower
has no knowledge of any liabilities, contingent or otherwise, at such date
not reflected in said statements, and the Borrower has not entered into any
special commitments or substantial contracts which are not reflected in said
statements, other than in the ordinary and normal course of its business,
which may have a materially adverse effect upon its financial condition,
operations or business as now conducted.
B. The representation and warranty contained in Section VII.A. above shall
apply to each financial statement submitted pursuant to Section VIII.B.
herein and shall be continuous and shall be automatically restated for each
such financial statement as of the date of such statement.
N-2362-CA 12/96 Page 2 of 4 Classification: Confidential
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VIII. COVENANTS
The Borrower agrees that so long as credit is available under this
Agreement and until the Bank is repaid in full, it will, unless the Bank
shall otherwise consent in writing:
A. INSURANCE. Maintain public liability, property damage and worker's
compensation insurance and insurance on all its insurable property
against fire and other hazards with responsible insurance carriers to
the extent usually maintained by similar businesses.
B. RECORDS AND REPORTS. Maintain a standard and modern system of accounting
in accordance with generally accepted accounting principles or another
basis acceptable to the Bank on a basis consistently maintained; permit
Bank's representative to have access to and to examine its properties,
books and records at all reasonable times; and furnish the Bank; (1)
Promptly, a notice in writing of the occurrence of any event of default
hereunder or of any event which would become an event of default
hereunder upon giving of notice, lapse of time, or both; and (2) The
following financial information and statements by one year from the date
of this Agreement and annually thereafter, and such other information
relating to the affairs of the Borrower as the Bank may request from
time to time:
a. BORROWER'S FINANCIAL STATEMENT. The Borrower's annual financial
statements compiled by a Certified Public Accountant ("CPA") acceptable
to the Bank;
b. BORROWER'S TAX RETURN. The Borrower's federal income tax return
(with all K-1 forms attached), together with a statement of any
contributions made by the Borrower to any subchapter S corporation or
trust, and copies of any extensions of the filing date;
c. GUARANTOR'S FINANCIAL STATEMENT. Each guarantor's annual financial
statement in form satisfactory to the Bank; and
d. GUARANTOR'S TAX RETURN. Copies of each guarantor's federal income
tax return (with all K-1 forms attached), together with a statement of
any contributions made by the guarantor to any subchapter S corporation
or trust, and copies of any extensions of the filing date.
C. TYPE OF BUSINESS. Not make any substantial change in the character of
its business.
D. PURPOSE. Use the proceeds of this loan solely for business purposes.
E. OUTSIDE INDEBTEDNESS. Not create, incur, assume or permit to exist any
indebtedness for borrowed money other than loans from the Bank except
obligations now existing as shown on the credit application or the
personal financial statement or data submitted with such application
pursuant to Section VII.A, herein; or sell or transfer, either with or
without recourse, any accounts or notes receivable or any money due or
to become due.
F. LIENS AND ENCUMBRANCES. Not create, incur, assume or permit to exist any
mortgage, deed of trust, security interest (whether possessory or
nonpossessory) or other encumbrance of any kind (including without
limitation, the charge upon property purchased under conditional sale or
other title retention agreement) upon or on any of its property or
assets, or sell, assign, pledge or otherwise transfer for security any
of its accounts, contract rights, general intangibles, or chattel paper
with or without recourse, whether now owned or hereafter acquired
(hereinafter collectively called "Liens"), other than (1) Liens for
taxes not delinquent or being contested in good faith in appropriate
proceedings; (2) Liens in connection with worker's compensation,
unemployment insurance or social security obligations; (3) Mechanics',
workmens', materialmens', landlords', carriers', or other like liens
arising in the ordinary and normal course of business with respect to
obligations which are not due or which are being contested in good
faith; (4) Liens on margin stock as declined within Regulation U of
the Board of Governors of the Federal Reserve System, as amended from
time to time, and (5) Liens in favor of the Bank.
G. LOANS, SECONDARY LIABILITIES. Not make any loans or advances to any
person or other entity other than in the ordinary and normal course of
its business as now conducted; or guarantee or otherwise become liable
upon the obligation of any person or other entity, except by endorsement
of negotiable instruments for deposit or collection in the ordinary and
normal course of its business.
H. ACQUISITION OR SALE OF BUSINESS; MERGER OR CONSOLIDATION. Not purchase
or otherwise acquire the assets of business of any person or other
entity, or liquidate, dissolve, merge or consolidate, or commence any
proceedings therefor; or sell any assets except in the ordinary and
normal course of its business as now conducted, or sell, lease, assign,
or transfer any substantial part of its business or fixed assets, or any
property or other assets necessary for the continuance of its business
as now conducted, including without limitation the selling of any
property or other asset accompanied by the leasing back of the same.
I. COMPLIANCE WITH LAWS. Comply with the laws, regulations and orders of
any government body with authority over the Borrower's business.
J. TRUSTS. Not transfer any of the Borrower's assets to a trust.
IX. EVENTS OF DEFAULT
The occurrence of any of the following events of default shall, at the
Bank's option, terminate the Bank's obligation to extend credit under
this Agreement, and make all sums of principal and interest immediately
due and payable, all without demand, presentment or notice, all of which
are hereby expressly waived and the Bank may exercise all its rights
against the Borrower, any guarantor and any collateral as provided by
law.
A. FAILURE TO PAY INDEBTEDNESS. Failure to pay when due any obligation
of the Borrower to the Bank.
B. OTHER DEFAULTS. The occurrence of any event of default whether or not
waived by the obligee under any other indebtedness extended by any
institution or individual to the Borrower.
C. BREACH OF COVENANT. Failure of the Borrower to perform any other term or
condition of this Agreement binding upon the Borrower.
D. BREACH OF WARRANTY. Any of the Borrower's representations or
warranties made herein or any statement or certificate at any time
given pursuant hereto or in connection herewith shall be false or
misleading in any material respect.
E. INSOLVENCY; RECEIVER OR TRUSTEE. The Borrower, any guarantor or the
indebtedness of the Borrower to the Bank or general partner of the
Borrower shall become insolvent; or admit its inability to pay its
debts as they mature, or make an assignment for the benefit of
creditors; or apply for or consent to the appointment of a receiver
or trustee for it or for a substantial part of its property or
business?-?-?
F. JUDGMENTS, ATTACHMENTS. Any money judgment, writ, or warrant of
attachment, or similar process shall be entered or filed against the
Borrower or any guarantor of any of the Borrower's obligations to the
Bank or any of its assets and shall remain unvacated, unbonded or
unstayed for a period of 10 days or in any event later than 5 days prior
to the date of any proposed sale thereunder.
G. BANKRUPTCY. Bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings for relief under any bankruptcy law or
any law for the relief of debtors shall be instituted by or against the
Borrower, any guarantor of the indebtedness of the Borrower to the
Bank or general partner of the Borrower.
H. MATERIAL ADVERSE CHANGE. A material adverse change occurs in the
Borrower's financial condition or the financial condition of any
guarantor of the Borrower's obligations to the Bank, which, in the
opinion of the Bank, would affect the ability of the Borrower to
repay any advances made by the Bank hereunder or any other of the
Borrower's obligations hereunder, or of such guarantor to perform
under its guaranty.
I. GUARANTY. Any guaranty of the indebtedness of the Borrower to the
Bank, at any time after the execution and delivery of such guaranty and
for any reason other than satisfaction in full of all indebtedness
incurred hereunder, ceases to be in full force and effect or is
declared to be null and void; or the validity or enforceability
thereof is contested in a judicial proceedings; or any guarantor
denies that it has any further liability under such guaranty; or any
guarantor defaults in any provision of any guaranty; or any financial
information provided by any guarantor is false or misleading in any
material respect.
J. DEATH. The Borrower of any guarantor dies; if the Borrower is a sole
proprietorship, any owner dies, if the Borrower is a trust, a
trustor dies; if the Borrower is a partnership, any general partner
dies; or if the Borrower is a corporation, any principal officer or
majority stockholder dies.
K. GOVERNMENT ACTION. Any government authority takes action the Bank
believes materially adversely affects the Borrower's or any
guarantor's financial condition or ability to repay.
L. DEFAULT IN SECURITY DOCUMENTS. A default shall occur in any document
or instrument provided by the Borrower to the Bank in connection
with the security provided the Bank pursuant to Section V.A. herein.
M. COLLATERAL VALUE. The Credit Limit, if a Line, or the principal balance,
if a Loan, equals or exceeds the collateral value.
▇. ▇▇▇▇ PRIORITY. The Bank fails to have an enforceable first lien (except
for any prior liens to which the Bank has consented in writing) on or
security interest in any property given as security for this Line or
Loan.
If the Borrower is in default the Bank may also without prior notice, do any
one or more of the following: (a) exercise any remedies available to a
secured party under the Uniform Commercial Code or any other applicable law;
(b) proceed in the foreclosure of its security interest in the property
described in the paragraph entitled "Security"; (c) sell or otherwise dispose
of the property at public or private sale, upon terms and in such manner as it
may determine and it may purchase same at such sale; (d) refrain from
disposing of the property and continue to maintain possession of the property
for such time as it deems appropriate and the Borrower takes the risk of any
depreciation to the value of the property pending disposition; or (e) transfer
any of the property into the name of the Bank or the Bank's nominee.
X. MISCELLANEOUS PROVISIONS
A. FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part of the
Bank, in the exercise of any power, right or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise
thereof or of any other right, power or privilege. All rights and
remedies existing under this Agreement are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
B. OTHER AGREEMENTS. Nothing herein shall in any way limit the effect of
the conditions set forth in any security or other agreement executed by
the Borrower, but each and every condition hereof shall be in addition
hereto.
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C. GOVERNING LAW AND WAIVER. The Borrower understands and agrees that (1) this
Agreement will be governed by and interpreted in accordance with the laws of
the State of the State of California; and (2) the Borrower waives its right,
under Section 1808.21 of the California Vehicle Code, to the confidentiality
of its residence address in the records of the Department of Motor Vehicles,
and the Borrower authorizes the Bank to request its residence address from
the Department of Motor Vehicles if required by the Bank enforcing this
Agreement.
D. SEVERABILITY. If any provision of this Agreement is held to be
unenforceable, such determination shall not affect the validity of the
remaining provisions of this Agreement.
E. SUCCESSORS AND ASSIGNS. This Agreement is binding on the Borrower's and the
Bank's successors and assigns. The Borrower agrees that it may not assign
this Agreement without the Bank's prior consent.
F. HAZARDOUS WASTE INDEMNIFICATION. The Borrower will indemnify and hold
harmless the Bank from any loss or liability directly or indirectly arising
out of the use, generation, manufacture, production, storage, release,
threatened release, discharge, disposal or presence of a hazardous substance.
This indemnity will apply whether the hazardous substance is on, under or
about the Borrower's property or operations of property leased to the
Borrower. The indemnity includes but is not limited to attorney's fees
(including the reasonable estimate of the allocated cost to in-house counsel
and staff. The indemnity extends to the Bank, its parent, subsidiaries and
all of their directors, officers, employees, agents, successors, attorneys
and assigns. For these purposes, the term "hazardous substances" means any
substance which is or becomes designated as "hazardous" or "toxic" under any
federal, state or local law. This indemnity will survive repayment of the
Borrower's obligations to the Bank.
G. MULTIPLE BORROWERS. If there are two or more Borrowers under this Agreement,
each will individually obligated to repay the Bank in full, and all will be
obligated to repay the Bank in full, and all will be obligated together. The
Bank may terminate the availability of credit under this Agreement if the
Bank receives conflicting instructions from the Borrowers.
H. ONE AGREEMENT. This Agreement and any related security or other agreements
required by this Agreement collectively: (1) represent the sum of the
understandings and agreements between the Bank and the Borrower concerning
this credit; and (2) replace any prior oral or written agreements between
the Bank and the Borrower concerning this credit; and (3) are intended by
the Bank and the Borrower as the final, complete and exclusive statement of
the terms agreed to by them. In the event of any conflict between this
Agreement and any other agreements required by this Agreement, this
Agreement will prevail.
I. CHANGE OF TERMS. The Bank may change any term or condition of this
Agreement, to the extent permitted by law, by providing written notice to
the Borrower. Any such change shall apply to any unpaid balance outstanding
under this Agreement as well as any future transactions under this
Agreement.
J. NOTICE. AS required herein, notice to the Bank shall be sent to the address
shown on the Borrower's latest billing statement, to be effective when
received. Any written notice to the Borrower shall be sent to the Borrower's
address in the Bank's records, to be effective when deposited in the U.S.
mail, postage prepaid, unless otherwise stated in the notice. The Borrower
agrees to notify the Bank promptly in writing of a change in the Borrower's
mailing address.
K. COSTS. If the Bank incurs any expense in connection with administering or
enforcing this Agreement, of if the Bank takes collection action under this
Agreement, it is entitled to costs and reasonable attorney's fees,
including any allocated costs of in-house counsel. At the Bank's option, the
Bank may add these costs to the principal amount outstanding under this
Agreement.
L. ATTORNEY'S FEES. In the event of a lawsuit or arbitration proceeding, the
prevailing party is entitled to recover costs and reasonable attorney's fees
(including any allocated costs of in-house counsel) incurred in connection
with the lawsuit or arbitration proceeding, as determined by the court or
arbitrator.
M. TELEPHONE MONITORING. To the extent not prohibited by law, the Bank's
personnel may listen to telephone calls between the Borrower and the Bank's
employees for the purpose of monitoring the quality of service the Borrower
receives.
N. ARBITRATION.
1. This paragraph concerns the resolution of any controversies or claims
between the Borrower and the Bank, including but not limited to those that
arise from: (a) This Agreement (including any renewals, extensions of
modifications of this Agreement); (b) Any document, agreement or procedure
related to or delivered in connection with this Agreement; (c) Any violation
of this Agreement; or (d) Any claims for damages resulting from any business
conducted between the Borrower and the Bank, including claims for injury to
persons, property or business interests (torts).
2. At the request of the Borrower or the Bank, any such controversies or
claims will be settled by arbitration in accordance with the United States
Arbitration Act. The United States Arbitration Act will apply despite the
provisions of paragraph C., "Governing Law and Waiver," above.
3. Arbitration proceeding will be administered by the American Arbitration
Association and will be subject to its commercial rules of arbitration.
4. For purposes of the application of the statute of limitations the filing
of an arbitration pursuant to this paragraph is the equivalent of the filing
of a lawsuit, and any claim or controversy which may be arbitrated under
this paragraph is subject to any applicable statute of limitations. The
arbitrators will have the authority to decide whether any such claim or
controversy is barred by the statute of limitations and, if so, to dismiss
the arbitration on that basis.
5. If there is a dispute as to whether an issue is arbitrable, the
arbitrators will have the authority to resolve any such dispute.
6. The decision that results from an arbitration proceeding may be
submitted to any authorized court of law to be confirmed and enforced.
7. This provision does not limit the right of the Borrower or the Bank to:
(a) exercise self-help remedies such as setoff; (b) foreclose against or
sell any real or personal property collateral; or (c) act in a court of law,
before, during or after the arbitration proceeding to obtain (i) an interim
remedy; and/or (iii) additional or supplementary remedies.
8. The pursuit of or a successful action for interim, additional or
supplemental remedies, or the filing of a court action, does not constitute
a waiver of the right of the Borrower or the Bank, including the suing
party, to submit the controversy of claim to arbitration if the other party
contests the lawsuit.
This Agreement is effective as of the date stated at the top of the first page.
MEDICAL SCIENCE SYSTEMS, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇, CEO
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ DDS, Chief Scientific Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ DDS, Secretary
By
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