EXHIBIT 6.11
AMENDED AND RESTATED
LOAN AGREEMENT
between
CVD FINANCIAL CORPORATION
A Delaware Corporation
("Lender")
and
SERACARE, INC., also known as American Blood Institute, Inc.
a Delaware corporation
AVRE, INCORPORATED
a Nevada corporation
BINARY ASSOCIATES, INC.
a Colorado corporation
February 5, 1996
TABLE OF CONTENTS
SECTION PAGE
1. Definition of Terms. . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 1933 Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 1934 Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Accounts, Chattel Paper, Contracts, Equipment, Fixtures, General
Intangibles, Goods, Instruments and Inventory. . . . . . . . . 2
1.4 Affiliate(s) . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 Bankruptcy Plan. . . . . . . . . . . . . . . . . . . . . . . . 2
1.7 Bankruptcy Proceedings . . . . . . . . . . . . . . . . . . . . 2
1.8 Blood Business . . . . . . . . . . . . . . . . . . . . . . . . 3
1.9 Borrowers. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.10 Business Day(s). . . . . . . . . . . . . . . . . . . . . . . . 3
1.11 Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.12 Compliance Certificate . . . . . . . . . . . . . . . . . . . . 5
1.13 Consolidated Loan. . . . . . . . . . . . . . . . . . . . . . . 5
1.14 Consolidated Note. . . . . . . . . . . . . . . . . . . . . . . 5
1.15 Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.16 Effective Date of Bankruptcy Plan. . . . . . . . . . . . . . . 5
1.17 Environmental Law(s) . . . . . . . . . . . . . . . . . . . . . 5
1.18 Event(s) of Default. . . . . . . . . . . . . . . . . . . . . . 6
1.19 Existing Facility. . . . . . . . . . . . . . . . . . . . . . . 6
1.20 Financing Statement(s) . . . . . . . . . . . . . . . . . . . . 6
1.21 GAAP.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.22 Gross Revenue. . . . . . . . . . . . . . . . . . . . . . . . . 6
1.23 Hazardous Substance(s) . . . . . . . . . . . . . . . . . . . . 6
1.24 Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.25 Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.26 Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . 7
1.27 Negative Pledge Agreement. . . . . . . . . . . . . . . . . . . 7
1.28 Note Rate. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.29 Original Loan Agreement. . . . . . . . . . . . . . . . . . . . 7
1.30 Original Revolving Loan. . . . . . . . . . . . . . . . . . . . 7
1.31 Original Term Loan . . . . . . . . . . . . . . . . . . . . . . 7
1.32 Stock Pledge Agreement . . . . . . . . . . . . . . . . . . . . 7
1.33 Security Agreements. . . . . . . . . . . . . . . . . . . . . . 8
1.34 Settlement Agreement . . . . . . . . . . . . . . . . . . . . . 8
1.35 Vacant Parcels . . . . . . . . . . . . . . . . . . . . . . . . 8
1.36 Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2. Amount and Terms of Consolidated Loan. . . . . . . . . . . . . . . . 8
2.1 Consolidated Loan . . . . . . . . . . . . . . . . . . . . . . . 9
2.1.1 Consolidated Loan Amount. . . . . . . . . . . . . . . . . 9
2.1.2 Interest. . . . . . . . . . . . . . . . . . . . . . . . . 9
2.1.3 Amortization. . . . . . . . . . . . . . . . . . . . . . . 9
2.1.4 Late Charge; Default Interest . . . . . . . . . . . . . . 9
2.1.5 Maturity. . . . . . . . . . . . . . . . . . . . . . . . 10
2.1.6 Prepayments . . . . . . . . . . . . . . . . . . . . . . 10
2.2 Collateral. . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.2.1 Security Interest . . . . . . . . . . . . . . . . . . . 10
2.2.2 Recourse. . . . . . . . . . . . . . . . . . . . . . . . 10
2.2.3 Conversion Guaranty . . . . . . . . . . . . . . . . . . 10
2.3 No Readvances . . . . . . . . . . . . . . . . . . . . . . . . 10
3. Effective Date of this Agreement . . . . . . . . . . . . . . . . . 10
3.1 Loan Documents. . . . . . . . . . . . . . . . . . . . . . . . 10
3.2 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.3 Bankruptcy Plan Approved and Effective. . . . . . . . . . . . 11
3.4 Bankruptcy Plan Payment . . . . . . . . . . . . . . . . . . . 11
3.5 No Default. . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.6 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.7 Compliance Documents. . . . . . . . . . . . . . . . . . . . . 11
4. Continuing Obligations of Borrowers. . . . . . . . . . . . . . . . 11
4.1 Performance of Obligations. . . . . . . . . . . . . . . . . . 11
4.2 Notice of Change. . . . . . . . . . . . . . . . . . . . . . . 11
4.3 Records . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.4 Financial Information . . . . . . . . . . . . . . . . . . . . 12
4.4.1 Financial Statements. . . . . . . . . . . . . . . . . . 12
4.4.2 Tax Returns . . . . . . . . . . . . . . . . . . . . . . 13
4.4.3 Compliance Certificates . . . . . . . . . . . . . . . . 13
4.4.4 Accounts Receivable and Payable Aging . . . . . . . . . 13
4.4.5 Public Reports. . . . . . . . . . . . . . . . . . . . . 13
4.5 Other Information . . . . . . . . . . . . . . . . . . . . . . 14
4.6 Insurance.. . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.7 Liens.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.8 Contingent Liabilities. . . . . . . . . . . . . . . . . . . . 15
4.9 Reorganization. . . . . . . . . . . . . . . . . . . . . . . . 15
4.10 Corporate Actions . . . . . . . . . . . . . . . . . . . . . . 15
4.11 Limitations on Loans, Investments and Advances. . . . . . . . 19
4.12 Other Agreements. . . . . . . . . . . . . . . . . . . . . . . 19
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4.13 Additional Documents. . . . . . . . . . . . . . . . . . . . . 19
4.14 Ordinary Operations . . . . . . . . . . . . . . . . . . . . . 19
4.15 Maintenance of Property . . . . . . . . . . . . . . . . . . . 20
4.16 Debts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.17 Bankruptcy; Advance Waiver. . . . . . . . . . . . . . . . . . 20
5. Representations; Warranties. . . . . . . . . . . . . . . . . . . . 21
5.1 Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.2 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.3 No Default. . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.4 Financial Information . . . . . . . . . . . . . . . . . . . . 21
5.5 Validity, Enforceability and Perfection . . . . . . . . . . . 21
5.6 Status of Borrowers . . . . . . . . . . . . . . . . . . . . . 22
5.7 Compliance With Laws. . . . . . . . . . . . . . . . . . . . . 22
5.8 Environmental Liability . . . . . . . . . . . . . . . . . . . 22
5.9 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.10 Additional Representations, Warranties and Covenants. . . . . 22
(a) Accounts Receivable Information . . . . . . . . . . . . 23
(b) Affiliates; Investments . . . . . . . . . . . . . . . . 23
(c) AVRE and Binary Shares. . . . . . . . . . . . . . . . . 23
5.11 Additional Matters. . . . . . . . . . . . . . . . . . . . . . 24
6. Environmental Compliance . . . . . . . . . . . . . . . . . . . . . 24
7. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . 25
7.1 Nonpayment. . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.2 Breach of Agreement . . . . . . . . . . . . . . . . . . . . . 25
7.3 Lien Filings. . . . . . . . . . . . . . . . . . . . . . . . . 25
7.4 Casualty Loss . . . . . . . . . . . . . . . . . . . . . . . . 25
7.5 Representations and Warranties. . . . . . . . . . . . . . . . 25
7.6 Insolvency; Bankruptcy. . . . . . . . . . . . . . . . . . . . 26
7.7 Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.8 Other Debt. . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.9 Adverse Change. . . . . . . . . . . . . . . . . . . . . . . . 26
7.10 Impairment of Existing Facility from Affiliate's Operations . 26
7.11 Corporate Existence . . . . . . . . . . . . . . . . . . . . . 26
7.12 Repudiation . . . . . . . . . . . . . . . . . . . . . . . . . 27
7.13 Certain Proceedings . . . . . . . . . . . . . . . . . . . . . 27
7.14 Challenge to Enforcement. . . . . . . . . . . . . . . . . . . 27
8. Remedies. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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8.1 Acceleration of Maturity. . . . . . . . . . . . . . . . . . . 27
8.2 Selective Enforcement . . . . . . . . . . . . . . . . . . . . 28
8.3 Performance by Lender . . . . . . . . . . . . . . . . . . . . 28
8.4 Waiver of Default . . . . . . . . . . . . . . . . . . . . . . 28
8.5 Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . 28
8.6 Waiver of Marshalling of Assets . . . . . . . . . . . . . . . 29
9. No Further Modification. . . . . . . . . . . . . . . . . . . . . . 29
10. Release of Lender. . . . . . . . . . . . . . . . . . . . . . . . . 29
11. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.1 Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.2 Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.3 Successors and Assigns. . . . . . . . . . . . . . . . . . . . 30
11.4 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . 31
11.5 Partial Invalidity. . . . . . . . . . . . . . . . . . . . . . 31
11.6 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.7 Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . 31
11.8 Integration; Sole Agreement . . . . . . . . . . . . . . . . . 32
11.9 Jury Waiver . . . . . . . . . . . . . . . . . . . . . . . . . 32
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SCHEDULES
A Form of Consolidated Promissory Note
B Form of Security Agreements of SI, AVRE
and Binary
C Form of Stock Pledge Agreement
D Form of Compliance Certificate
E Form of Negative Pledge Agreement
F List of Affiliates
G List of Insurance
H List of Leases
I List of Existing Facilities
J List of Pending Litigation
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AMENDED RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT ("Agreement") is made
effective the 5th day of February, 1996, between CVD Financial Corporation, a
Delaware corporation ("Lender"); Seracare, Inc., a Delaware corporation formerly
known as "American Blood Institute, Inc." ("SI"); AVRE, Incorporated, a Nevada
corporation ("AVRE"); and Binary Associates, Inc., a Colorado corporation
("Binary"). SI, AVRE and Binary are referred to herein collectively as the
"Borrowers."
WITNESSETH
A. SI is a party to that certain Comprehensive Loan Facility and
Security Agreement, dated October 1, 1993 (the "Original Loan Agreement"), under
which Lender made a revolving loan to SI in the amount of $1,500,000 (the
"Original Revolving Loan") and a term loan in the amount of $1,000,000 (the
"Original Term Loan") to the Borrower, represented by an Original Revolving Loan
Note in the principal amount of $1,500,000, dated October 1, 1993 (the
"Original Revolving Note") and an Original Term Loan Note in the principal
amount of $1,000,000, dated October 1, 1993 (the "Original Term Note"). On
October 5, 1993, AVRE and Binary ratified the Original Loan Agreement, Original
Revolving Note and Original Term Note and agreed to repay all sums due
thereunder and provided Lender with security therefor as reflected in that
certain Agreement to be Bound by Comprehensive Loan Facility and Security
Agreement, dated October 5, 1993.
B. On January 7, 1994, SI filed a voluntary petition under chapter
11 of title 11 of the United States Code (Case No. LA 94-11730-AA). Binary and
AVRE also filed voluntary chapter 11 petitions on January 7, 1994, as Case Nos.
LA 94-11736-AA and LA 94-11738-AA, respectively. The foregoing cases are
presently pending in United States Bankruptcy Court for the Central District of
California (the "Bankruptcy Court"), under joint administration, and are
referred to herein collectively as the "Bankruptcy Proceedings."
C. The parties hereto have entered into a Settlement Agreement,
dated January 8, 1996 in connection with the Bankruptcy Proceedings (the
"Settlement Agreement"), pursuant to which Lender and Borrowers have agreed to
amend and restate the Original Revolving Loan and Original Term Loan as provided
herein, subject only to the terms and conditions hereof and of the Settlement
Agreement and of the Bankruptcy Plan (as defined below).
D. It is the intention of the Borrowers and Lender (as defined
below) that their obligations, rights and remedies be governed by this
Agreement, the
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Settlement Agreement and the Bankruptcy Plan, without reference to the Original
Loan Agreement, Original Revolving Loan and Original Term Loan (as defined
below).
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITION OF TERMS. As used in this Agreement, the following terms
will have the meanings hereafter indicated:
1.1 1933 ACT. The Securities Act of 1933, as amended, and the rules
and regulations of the Securities Exchange Commission promulgated thereunder.
1.2 1934 ACT. The Securities Act of 1934, as amended, and the rules
and regulations of the Securities Exchange Commission promulgated thereunder.
1.3 ACCOUNTS, CHATTEL PAPER, CONTRACTS, EQUIPMENT, FIXTURES, GENERAL
INTANGIBLES, GOODS, INSTRUMENTS AND INVENTORY. Accounts, Chattel Paper,
Contracts, Equipment, Fixtures, General Intangibles, Goods, Instruments, and
Inventory shall have the same respective meanings as are given to those terms in
the Uniform Commercial Code as presently adopted and in effect in the State of
California. To the extent not included within the meanings provided in said
Code, the terms "Goods" and "Inventory" shall further include, without
limitation, blood and blood products.
1.4 AFFILIATE(S). All subsidiaries, partnerships, joint ventures and
other entities not previously identified as a Borrower in which any Borrower
holds (either now or in the future) an ownership interest or the right to
exercise management or operational control, and all such persons or entities
which control or which are under common control with such Borrower, a complete
list of which is included in Schedule "F" hereto.
1.5 AGREEMENT. This Loan Agreement including Schedules "A" through
"J" inclusive, which are attached as a part hereof made in connection with
Borrowers' Bankruptcy Plan and all extensions, renewals and modifications
hereof.
1.6 BANKRUPTCY PLAN. THE THIRD AMENDED JOINT PLAN OF REORGANIZATION
OF AMERICAN BLOOD INSTITUTE. INC.. AVRE. INC.. AND BINARY ASSOCIATES. INC.
modified as contemplated by the Settlement Agreement, and confirmed in the
Bankruptcy Proceedings by order entered on January 24, 1996.
1.7 BANKRUPTCY PROCEEDINGS. The bankruptcy proceedings of the
Borrowers described in Recital B to this Agreement.
1.8 BLOOD BUSINESS. The operation of any office or facility
collecting or providing blood or plasma collection, processing or sales or
related services.
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1.9 BORROWERS. SI, AVRE and Binary.
1.10 BUSINESS DAY(S). Any day which is not a Saturday, Sunday or a
holiday on which California banking institutions are authorized by law to close.
1.11 COLLATERAL. The property of a kind described herein and all other
property which is the subject of a mortgage, deed of trust, lien, security
interest or other encumbrance now held by the Lender or hereafter granted by the
Borrowers or their Affiliates to the Lender to secure payment of the Original
Revolving Loan and/or the Original Term Loan and/or the Consolidated Loan or any
other obligations of the Borrowers to the Lender and all increases, replacements
and substitutions therefor, additions and accessions thereto and proceeds and
products thereof, including without implied limitation all property described in
the Security Agreements. Without limiting the foregoing, Collateral includes
with respect to each Borrower:
1.11.1 All now owned and hereafter acquired right, title and
interest of such Borrower in, to and in respect of all Accounts; interests in
Goods represented by Accounts; rights in returned, reclaimed or repossessed
Goods and rights as an unpaid vendor of Goods; Contracts; contract rights;
Chattel Paper; General Intangibles (including, but not limited to, tax and duty
refunds, registered and unregistered patents, trademarks, service marks,
copyrights, trade names, applications for the foregoing, trade secrets,
goodwill, processes, drawings, blueprints, customer lists, licenses, whether as
licensor or licensee, causes of action and other claims, and existing and future
leasehold interests in equipment, real estate and fixtures; documents;
Instruments; letters of credit, bankers' acceptances or guaranties, cash monies,
deposits, securities, bank accounts, deposit accounts, credits and other
property now or hereafter held in any capacity by Lender or at any other
depository or other institution; agreements or property securing or relating to
any of the items referred to above;
1.11.2 All now owned and hereafter acquired right, title and
interest of such Borrower in, to and in respect of Goods, including, but not
limited to: All Inventory, wherever located, whether now owned, or hereafter
acquired, of whatever kind, nature or description, including all raw materials,
work-in-process, finished goods, and materials to be used or consumed in
Borrower's business; and all names or marks affixed to or to be affixed thereto
for purposes of selling the same by the seller, manufacturer, lessor or licensor
thereof;
1.11.3 All Equipment and Fixtures, wherever located, whether now
owned or hereafter acquired by such Borrower, including, without limitation, all
machinery, equipment, motor vehicles, furniture and fixtures, and any and all
additions, substitutions, replacements (including spare parts), and accessions
and accessories thereof and thereto;
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1.11.4 All medical products, including without limitation blood
and blood products of such Borrower, wherever located, whether now owned or
hereafter acquired, of whatever kind, nature or description;
1.11.5 All now owned or hereafter acquired right, title and
interest of such Borrower in, to and in respect of any real or other personal
property in or upon which Lender has or may hereafter have a security interest,
lien or right of setoff;
1.11.6 All present and future books and records of such Borrower
relating to any of the above including, without limitation, all computer
programs, printed output and computer readable data in the possession or control
of the Borrower, any computer service bureau or other third party;
1.11.7 All of the issued and outstanding shares of stock of AVRE
and Binary;
1.11.8 The Vacant Parcels;
1.11.9 All products and proceeds of the foregoing in whatever form
and wherever located, including, without limitation, all insurance proceeds and
all claims against third parties for loss or destruction of or damage to any of
the foregoing; and
1.11.10 The Collateral shall not include the stock, warrants,
options, rights or other form of equity security of wholly-owned Affiliates of
SI or any assets of such Affiliates (including investments of SI which are
permitted by this Agreement) unless specifically pledged hereafter, any and all
claims of Borrowers under 11 U.S.C. Sections 362 and 544-553, inclusive, in the
Bankruptcy Proceedings and the funds received from the Debtor Notes required by
the Bankruptcy Plan.
1.11.11 THIRD PARTY OR LEGAL RESTRICTIONS ON PLEDGE OF COLLATERAL.
Lender acknowledges that certain kinds of property of a character which could be
encompassed in the definition of Collateral may not be subject to pledge or
encumbrance because of statute, regulation, other restriction or the requirement
of consent of persons not parties to the Loan Documents. With respect to such
property, Borrowers will use their reasonable diligence and cooperation with
Lender to secure permission to grant security interests in or liens against such
property or a waiver of the regulation, law or statute or attornment agreement
in a form satisfactory to Lender. In the event Borrowers are able to do so, such
property shall constitute Collateral. If Borrowers are unable to do so,
Borrowers shall notify Lender in accordance with paragraph 11.2 hereof.
1.12 COMPLIANCE CERTIFICATE. The document in substantially the form
which appears as Schedule "D" to be executed by the Borrowers and delivered to
the
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Lender upon the execution of this Agreement and on a monthly basis to confirm
the Borrowers' compliance with the terms of the Loan Documents, signed by the
Chief Executive Officer, President or Chief Financial Officer of each Borrower.
1.13 CONSOLIDATED LOAN. The extension of credit having an outstanding
principal amount of One Million One Hundred Fifty Thousand Dollars ($1,150,000)
made by the Lender to the Borrowers pursuant to the terms of this Agreement,
which amends and restates, modifies and entirely controls the prior terms of the
Original Loan Agreement, Original Revolving Loan and the Original Term Loan, and
all extensions, renewals, increases, consolidations and modifications thereof
prior to this Agreement. Provided, however, that after the Effective Date of
this Agreement, all of Borrowers' obligations to Lender and Lender's rights and
remedies vis-a-vis Borrowers shall be governed without reference to the Original
Loan Agreement, Original Revolving Loan and Original Term Loan such that neither
Borrowers nor Lender will be responsible for any obligation or be subject to any
remedy not expressly stated in the Settlement Agreement, the Bankruptcy Plan or
the Loan Documents.
1.14 CONSOLIDATED NOTE. The amended and restated instrument to be
executed by the Borrowers and delivered to the Lender to evidence the amount of
the Consolidated Loan subject to the provisions of paragraph 1.13 in the form
and containing the terms which appear as Schedule "A" and all extensions,
renewals and modifications thereof.
1.15 DEFAULT. The occurrence of any one or more of the Events of
Default and the determination by the Lender that the Lender will exercise the
remedies available to the Lender by reason thereof.
1.16 EFFECTIVE DATE OF BANKRUPTCY PLAN. The first business day: (a)
that is at least ten (10) days after the date the confirmation order was entered
by the Bankruptcy Court, as specified in paragraph 1.6 of this Agreement; and
(b) on which no stay of such order is in effect but in no event after March 1,
1996.
1.17 ENVIRONMENTAL LAW(S). Any federal, state, local or foreign law,
statute, ordinance, code, rule, regulation, order or decree now or hereafter in
effect pertaining to health, air pollution, water pollution, noise control,
waste transportation or disposal, Hazardous Substances, industrial hygiene or
the environment, including without implied limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendment and Reauthorization Act of 1986, 42 U.S.C. Sections
9601, the Resource Conservation and Recovery Act of 1976, as amended by the
Hazardous and Solid Waste Amendment Act of 1984, 42 U.S.C. Sections 6901 ET SEQ.
the Clean Air Act, 42 U.S.C. Section 7401, ET SEQ., the Clean Water Act of 1977,
33 U.S.C. Sections 1251, et SEQ., the Toxic Substances Control Act, 15 U.S.C.
Sections 2501, ET SEQ., the Hazardous Materials Transportation Act, 49 U.S.C.
Sections 0000, XX
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XXX., the National Environmental Policy Act, 42 U.S.C. Sections 4321, ET SEQ.,
and the Rivers and Harbors Act of 1899, as amended, 33 U.S.C. Sections 401, ET
SEQ.
1.18 EVENT(S) OF DEFAULT. The occurrence of an event specified in
paragraph 7 of this Agreement.
1.19 EXISTING FACILITY. Any and all existing facilities of AVRE and
Binary listed on Schedule "I" hereto conducting Blood Business as of the date
hereof and shall also include facilities of AVRE, Binary or Affiliate in which
Lender hereafter acquires a Collateral interest, at which time the Borrowers
shall promptly update and provide Schedule "I" to Lender.
1.20 FINANCING STATEMENT(S). Forms UCC-1 to be executed from time to
time by the Borrowers at the request of the Lender to enable the Lender to
perfect security interests covering the Collateral and all extensions, renewals
and modifications thereof, provided, however, that the Financing Statements
shall only perfect security interests in Collateral identified in paragraphs
1.11.1, ET SEQ., or hereafter granted.
1.21 GAAP. The generally accepted accounting principles adopted by the
Financial Accounting Standards Board of the American Institute of Certified
Public Accountants from time to time. All accounting terms used in this
Agreement will, unless otherwise specifically provided herein, have the meaning
customarily given such terms in accordance with GAAP and, unless otherwise
specifically provided herein, all financial computations hereunder will be
computed in accordance with GAAP consistently applied.
1.22 GROSS REVENUE. Gross Revenue shall have the meaning customarily
given such term in accordance with GAAP.
1.23 HAZARDOUS SUBSTANCE(S). Those substances included within the
definition of "hazardous substances," "hazardous materials," "toxic substances"
or "solid waste" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, the Resource Conservation and Recovery Act of
1987, as amended, the Hazardous Materials Transportation Act, 49 U.S.C. Sections
1801 ET SEQ. and in the regulations promulgated thereunder; those substances
listed in the United States Department of Transportation Table (49 CFR 172.101,
as amended) or by the Environmental Protection Agency (or any successor agency)
as hazardous substances (40 CFR Part 302, as amended); those substances
designated as a "hazardous substance" pursuant to Section 311 of the Clean Water
Act, as amended, or listed pursuant to the Clean Water Act; such other
substances, materials and wastes which are or become regulated under applicable
federal, state, local or foreign law, statute, ordinance or regulation now or
hereafter enacted which are classified as hazardous or toxic; any material,
waste or substance which is a petroleum product, asbestos, polychlorinated
biphenyl, flammable material, explosive or radioactive material.
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1.24 LEASES. The facility leases of Borrowers described on Schedule "H"
hereto respecting the business of the Existing Facilities and all subsequent
renewals, extensions or new leases of Borrowers other than office leases.
1.25 LENDER. CVD Financial Corporation, a Delaware corporation, its
past, present or future participating lenders, and successors and assigns of
each of them.
1.26 LOAN DOCUMENTS. This Agreement, Stock Pledge Agreement, the
Security Agreements, the Financing Statements, the Consolidated Note, Negative
Pledge Agreements, and all instruments issued pursuant thereto, all other
instruments delivered by the Borrowers or the Affiliates to the Lender to be
issued concurrently with the execution of this Agreement or subsequent thereto
in connection with the Consolidated Loan and all extensions, renewals and
modifications thereof.
1.27 NEGATIVE PLEDGE AGREEMENT. That instrument in substantially the
form attached hereto as Schedule "E" to be delivered to Lender by each Affiliate
of Borrowers in accordance with the provisions of paragraph 4.11 hereof.
1.28 NOTE RATE. Fourteen percent (14%) per annum.
1.29 ORIGINAL LOAN AGREEMENT. The Comprehensive Loan Facility and
Security Agreement between SI and Lender, dated October 1, 1993.
1.30 ORIGINAL REVOLVING LOAN. The extension of credit with a maximum
principal amount of One Million Five Hundred Thousand Dollars ($1,500,000)
described in subsection 2.1 of the Original Loan Agreement made by Lender to the
Borrowers as consolidated, amended and restated hereby, and hereafter included
within and entirely controlled by the terms of the Consolidated Loan.
1.31 ORIGINAL TERM LOAN. The extension of credit in the original
principal amount of One Million Dollars ($1,000,000) described in subsection 2.1
of the Original Loan Agreement made by Lender to the Borrowers, as consolidated,
amended and restated hereby, and hereafter included within and entirely
controlled by the terms of the Consolidated Loan provided that Borrowers'
obligations to Lender and Lender's rights and remedies under the Original Term
Loan shall be subject to the limitations set forth in paragraph 1.13.
1.32 STOCK PLEDGE AGREEMENT. The instrument to be executed by SI
granting to Lender a security interest in all shares of AVRE and Binary, whether
previously issued or issued hereafter, in substantially the form and containing
substantially the terms which appear as Schedule "C" and all extensions,
renewals and modifications thereof, which Stock Pledge Agreement amends and
restates the Pledge Agreement of SI, dated October 1, 1993, delivered to Lender
under the Original Loan
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Agreement (the "Pledge Agreement") subject to the proviso that the rights,
remedies and obligations of Lender vis-a-vis Borrowers shall be limited to those
expressly stated in the Stock Pledge Agreement or applicable law.
1.33 SECURITY AGREEMENTS. The security agreements, mortgages, deeds of
trust and other instruments to be executed by the Borrowers concurrently or in
connection herewith or as may be thereafter reasonably requested by Lender in
form and content as other Security Agreements and as are consistent with
Lender's rights under the Loan Agreement and delivered to the Lender, and which
shall also secure payment of the Consolidated Loan and all other obligations
under the Loan Documents and hereafter owing from the Borrowers to the Lender,
including such instruments which grant to the Lender security interests covering
the Collateral, in substantially the form and containing the terms which appear
as Schedule "B," and all extensions, renewals and modifications thereof, which
Security Agreements amend and restate and modify the security provisions of the
Original Loan Agreement such that the Borrowers' obligations to Lender shall be
governed by the terms of the Security Agreements and not by the original Loan
Agreement but which continue the prior perfection of such security provisions of
the Original Loan Agreement from the original dates of perfection only to the
extent and for the Collateral identified in paragraphs 1.11.1, ET SEQ., or
hereafter granted.
1.34 SETTLEMENT AGREEMENT. The Settlement Agreement between Lender and
the Borrowers described in Recital C to this Agreement.
1.35 VACANT PARCELS. That certain undeveloped real estate owned by
Binary and located at 0000 Xxxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx, and 0000 Xxxxxxxx
Xxxxxx, Xxxx Xxxxx, Xxxxx, and respectively identified as PIDN 47840-C-31-20 and
PIDN 47840-C-1-30 and more fully described as that certain real estate situated
in Tarrant County, State of Texas, to wit: All of Lots Thirty-One (31), Thirty-
Two (32), One (1) and Two (2), Block C, XXXX ADDITION, Fort Worth, Tarrant
County, Texas.
1.36 WARRANTS. The Stock Purchase Warrant, dated October 1, 1993,
executed by SI and delivered to Lender under which Lender was granted the right
to purchase 225,000 shares of Common Stock of SI, subject to adjustment as
provided therein.
2. AMOUNT AND TERMS OF CONSOLIDATED LOAN. Subject to the realization of
the Effective Date of the Bankruptcy Plan, the Lender agrees to the following
terms:
2.1 CONSOLIDATED LOAN. The Consolidated Loan, inclusive of all sums due
in connection with the Original Loan Agreement, Original Revolving Loan and
Original Term Loan, will be repayable on the following terms:
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2.1.1 CONSOLIDATED LOAN AMOUNT. The Consolidated Loan will be
evidenced by the Consolidated Note in the face amount of One Million One Hundred
Fifty Thousand Dollars ($1,150,000). Lender acknowledges the receipt from
Borrowers, concurrent with the execution hereof, of the sum of $625,000 which
has been first applied to all the outstanding amounts due under the Original
Revolving Note then to amounts due under the Original Loan Agreement. CVD
asserts that the amount remaining due and owing under the Original Term Note,
after payment of the $625,000 by Borrowers, exceeds the amount of $1,150,000,
but the obligations thereunder as well as all obligations under the Original
Loan Agreement and Original Revolving Loan shall be reduced by compromise,
renewal, extension and modification and be represented by the Consolidated Note.
Except for the amounts represented by the Consolidated Note, from and after the
Effective Date of this Agreement, all other sums due and owing under the
Original Loan Agreement, Original Term Note and Original Revolving Note are
deemed to be amended and restated in full, modified and entirely controlled by
the terms of the Loan Documents, whether consisting of principal, interest,
default interest, late charges, costs of collection, attorneys' fees or other
sums. The Warrants, and the rights of Lender thereunder, are canceled. Upon the
Effective Date of this Agreement, and after receipt by Lender of $625,000, the
total amount due to Lender by Borrowers shall be the principal sum of One
Million One Hundred Fifty Thousand Dollars ($1,150,000).
2.1.2 INTEREST. The Consolidated Note will bear interest on the
unpaid principal balance accrued from the Effective Date of this Agreement at
the Note Rate calculated on the basis of the actual days elapsed based on a per
diem charge computed over a year composed of three hundred sixty (360) days.
Interest under the Consolidated Note, accrued through the last day of each
month, will be paid on the first day of the succeeding calendar month.
2.1.3 AMORTIZATION. The unpaid principal balance of the
Consolidated Note will be paid in consecutive quarterly installments of
$82,142.86 payable on May 1, August 1, November 1 and February 1 of each year
during the term of this Note, the first principal payment being due May 1, 1996.
The final principal installment will be due at maturity on August 1, 1999.
2.1.4 LATE CHARGE; DEFAULT INTEREST. If any payment of principal
or interest is paid more than ten (10) days after when due, the Borrowers will
pay Lender a late charge equal to five percent (5%) of the late payment. In
addition, after an Event of Default, default interest may be charged at a rate
of 2.0% per annum in excess of the Note Rate.
2.1.5 MATURITY. Absent Default, the entire unpaid balance of
principal and accrued but unpaid interest owing on the Consolidated Note will be
due and payable August 1, 1999.
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2.1.6 PREPAYMENTS. The Borrowers will have the right at any time
and from time to time to prepay all or any portion of the unpaid principal
balance of the Consolidated Note without penalty. Such payment may be
accomplished by, among other things, a sale of the Collateral permitted by
paragraph 4.10(c) or which is a part of a single transaction that pays Lender in
full the then outstanding principal, interest and other charges Lender may
lawfully assess against Borrowers and which payment occurs upon the consummation
of the sale. All prepayments may be applied to any or all obligations or
principal due under the Consolidated Note in the discretion of the Lender.
2.2 COLLATERAL. Payment of the Consolidated Note and performance of all
of the Borrowers' obligations under the Loan Documents will be secured by the
following Collateral of the Borrowers:
2.2.1 SECURITY INTEREST. A first priority security interest
(subject only to statutory liens incurred in the ordinary course of business
which have a higher priority under applicable law) covering all of the
Collateral identified in paragraph 1.11.1, ET SEQ., including without implied
limitation, the Collateral described in the Security Agreements and Stock Pledge
Agreement or hereafter granted.
2.2.2 RECOURSE. The unlimited liability of the Borrowers.
2.2.3 CONVERSION GUARANTY. The prepetition guaranty of Conversion
Industries Inc. ("Conversion") of the Original Term Note given to Lender under
the Original Loan Agreement and which CVD asserts was called before Conversion
filed a chapter 11 bankruptcy case in which bankruptcy case no plan of
reorganization has been confirmed or distribution to creditors has been made as
of the execution hereof.
2.3 NO READVANCES. The Consolidated Loan shall not be a revolving
credit and Borrowers shall not be entitled to redraw upon or to obtain
readvances of any principal advanced to Borrowers by the Lender and repaid to
the Lender hereunder. As of the date hereof the Consolidated Loan has been fully
advanced.
3. EFFECTIVE DATE OF THIS AGREEMENT. This Agreement shall be effective
only upon the following conditions precedent, unless waived by Lender:
3.1 LOAN DOCUMENTS. The Loan Agreement and documents reflected in
Schedule A through E, UCC-1 Financing Statements for each Existing Facility and
in California, Stock Assignments Separate from Stock Certificates and if
prepared by Lender before the Effective Date of the Bankruptcy Plan, a Security
Agreement and Deed of Trust covering the Vacant Parcels shall have been duly
executed, acknowledged (where appropriate) and unconditionally delivered by the
Effective Date of the
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Bankruptcy Plan, but in no event after February 28, 1996, to the Lender by the
Borrowers, all in form and substance reasonably satisfactory to the Lender.
3.2 INSURANCE. The Lender shall have received copies of certificates or
policies of casualty and public liability insurance currently insuring the
Collateral issued in amounts, by companies and against such risks as are
presently existing, naming the Lender as an additional insured or the Lender as
loss payee, and including such ordinary and customary notice provisions to
Lender as such a loss payee. A list of all such insurance presently in effect is
set forth at Schedule "G" hereto. The Borrowers must continue to provide
adequate insurance in accordance with paragraph 4.6 hereof.
3.3 BANKRUPTCY PLAN APPROVED AND EFFECTIVE. The Bankruptcy Court
shall have approved the Loan Documents pursuant to the Order confirming the
Bankruptcy Plan and the Effective Date of the Bankruptcy Plan shall have
occurred.
3.4 BANKRUPTCY PLAN PAYMENT. The Lender shall receive concurrently upon
the execution of this Agreement the payment of the $625,000 required by the
Bankruptcy Plan.
3.5 NO DEFAULT. The representations and warranties set forth in
paragraph 5 of this Agreement shall be true and correct as of the execution of
this Agreement in all material respects, and there shall not have occurred and
be continuing any Event of Default.
3.6 AUTHORITY. The Lender shall have received certified copies of
corporate resolutions and other documents reasonably required to authorize the
execution, delivery and performance of the Loan Documents, all in form and
substance reasonably satisfactory to the Lender.
3.7 COMPLIANCE DOCUMENTS. Borrower shall provide Lender with a
Compliance Certificate concurrently with the execution of this Agreement.
4. CONTINUING OBLIGATIONS OF BORROWERS. Upon the Effective Date of this
Agreement, the Borrowers shall have the continuing obligation to perform and
comply with the following:
4.1 PERFORMANCE OF OBLIGATIONS. The Borrowers agree to pay and perform
all of the Borrower's obligations under the Loan Documents
4.2 NOTICE OF CHANGE. The Borrowers agree to give prompt written notice
to the Lender of:
4.2.1 The occurrence of any Event of Default of which they become
aware;
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4.2.2 All litigation involving the Borrowers or the Collateral, in
which the amount claimed exceeds Twenty-Five Thousand Dollars ($25,000) in a
single action or in the aggregate of all actions;
4.2.3 Their knowledge of the acquisition by any person of five
percent (5%) or more of any class of equity securities of any Borrower, or the
filing by any person of any form or schedule under Section 13 of the 1934 Act,
or any amendment or supplement to any such filing, or the filing by any person
of any Form 3 or 4 Report under the 1934 Act or the regulations of the
Securities Exchange Commission thereunder; and
4.2.4 Any matter which has resulted in, or is likely to result in,
a material change in the business of a material adverse change in the financial
condition of Borrowers or the value of the Collateral.
4.2.5 The change of any name or location of any Borrower or in the
location of any Collateral (other than the sales of materials, supplies and
products in the ordinary course of business), to be given prior to any such
change.
4.3 RECORDS. The Borrowers agree to maintain full and accurate
accounts and records of the Borrowers' and the Affiliates' operations in the
usual, regular and ordinary manner according to GAAP. The Lender and the
Lender's designated representatives will have the right to examine and copy the
records and accounts of the Borrowers relating to the Collateral, to discuss the
business activities and finances of the Borrowers and the Affiliates and to be
informed of the same by the Borrowers monthly and at such other times and
intervals as the Lender might reasonably request.
4.4 FINANCIAL INFORMATION. The Borrowers agree to furnish or cause to
be furnished to the Lender the following information:
4.4.1 FINANCIAL STATEMENTS. The Borrowers will deliver to the
Lender the following financial statements:
(a) As soon as available, but no later than ninety (90)
days after the end of each fiscal year of the Borrowers, annual consolidated
financial statements of SI, AVRE, Binary and SI's Affiliates, together with
unconsolidated financial statements of each of AVRE and Binary, the consolidated
statements to be certified and to have been prepared in accordance with GAAP by
the unqualified opinion of the Borrowers' independent certified public
accountants;
(b) As soon as available and in any event within ten (10) days
of receipt, copies of all audit or recommendation letters provided to the
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management of the Borrowers by the Borrowers' independent accountants and copies
of any responses made thereto.
(c) Within thirty (30) days after the end of each month,
unaudited consolidated financial statements of SI and the Affiliates, and
unconsolidated statements of each of AVRE and Binary, including, without
limitation, a balance sheet and statement of operations and production volumes
by facility, in such form which is usually and customarily prepared by Borrowers
and all reporting is to commence from the Effective Date of the Bankruptcy Plan.
(d) Within thirty (30) days after the end of each month,
reports in such form and details as the Lender might reasonably request
including, without limitation, details of any acquisition or disposition of
property, excluding purchase and sales of materials, supplies, products and
inventory in the ordinary course of business, by each of the Borrowers, having
an aggregate value in excess of Ten Thousand Dollars ($10,000) and all reporting
is to commence from the Effective Date of the Bankruptcy Plan.
(e) The financial reports described in (c) above will be
certified by the Chief Executive Officer, President or Chief Financial Officer
of each Borrower to have been prepared in accordance with GAAP.
4.4.2 TAX RETURNS. The Borrowers will, as soon as practicable and
in any event, within fifteen (15) days of filing its tax returns with the
Internal Revenue Service, deliver or cause to be delivered to Lender the
Internal Revenue Service tax returns of the Borrowers for such fiscal year.
4.4.3 COMPLIANCE CERTIFICATES. On the first day of each month
after the Effective Date of this Agreement, the Borrowers will deliver a
Compliance Certificate to the Lender.
4.4.4 ACCOUNTS RECEIVABLE AND PAYABLE AGING. Each of the Borrowers
will, as soon as practicable and in any event within thirty (30) days after the
end of each month commencing at the end of the first calendar month which
includes at least 15 days after the Effective Date of this Agreement, deliver or
cause to be delivered to Lender monthly accounts receivable aging reports and
aged accounts payable reports, aging such accounts in thirty (30) day increments
in form and substance such as is customarily prepared by the Borrowers.
4.4.5 PUBLIC REPORTS. The Borrowers shall timely file as required
by law or regulation, and promptly make available to the Lender, not later than
five (5) business days following the filing thereof, complete copies of all
registration statements, financial statements, reports, proxy statements and
other documents filed with the SEC under the 1934 Act or the 1933 Act including,
without implied limitation, all reports
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filed or Forms 10-K, 10-Q and 8-K. In addition, the Borrowers shall provide the
Lender with a copy of all press reports or news releases or similar
communications within five (5) business days of issuance or publication.
4.5 OTHER INFORMATION. The Borrowers agree to furnish to the Lender
such other financial statements and information concerning the business
activities of the Borrowers as may be reasonably requested by Lender to
interpret or clarify the financial information required from the Borrowers;
provided, however, that Borrowers shall have a reasonable time to respond.
4.6 INSURANCE. The Borrowers will keep its business and properties
insured at all times by insurance companies against the risks for which
provision for such insurance is no less adequate than as set forth on Schedule
"G" attached hereto (including, without limitation, insurance for fire and other
hazards, and insurance against liability on account of damage to person or
property and insurance under all applicable xxxxxxx'x compensation laws), and to
the same extent thereto and carry such other types and amounts of insurance as
are usually carried by persons engaged in the same or a similar business
similarly situated and, upon request, deliver to the Lender evidence of such
insurance. Lender has been named the sole loss payee other than Borrowers under
all insurance policies in effect as of the date hereof.
4.7 LIENS. The Borrowers will not create, assume or suffer to exist
any trust deed, mortgage, pledge, security interest, encumbrance or other lien
(including the lien of an attachment, judgment or execution) securing a charge
or obligation affecting the Collateral which one or more of the Borrowers own,
excepting only:
(a) Liens for governmental charges (i) which are not delinquent
(ii) the validity of which is being contested by the Borrowers in good faith by
diligent prosecution of appropriate proceedings or (iii) which shall be paid in
accordance with the Bankruptcy Plan as soon as practicable after the Effective
Date thereof;
(b) Liens created by the Loan Documents;
(c) Liens, the validity of which is being contested by the
Borrowers in good faith by diligent prosecution of appropriate proceedings,
provided that title insurance or other indemnity arrangements reasonably
satisfactory to the Lender have stayed the effect of such liens;
(d) Statutory liens in the aggregate not exceeding $75,000
outstanding at any given time.
4.8 CONTINGENT LIABILITIES. The Borrowers will not assume, guarantee,
endorse or otherwise become contingently liable for the obligation of any other
person, firm or corporation, except by the endorsement of negotiable instruments
for deposit
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or collection or other similar transactions in the ordinary course of the
Borrowers' business, except for SI's guaranty of wholly-owned Affiliate's debts
or any uninsured tort liability arising from the ordinary course of Borrowers'
business.
4.9 REORGANIZATION. AVRE and Binary will not liquidate, dissolve,
enter into any consolidation or merger, or amend their Articles of Incorporation
(except as required by the Bankruptcy Plan), or change in any material manner
the rights of the holders of their capital stock or the general character of
their businesses. SI must remain the direct and ultimate parent entity of AVRE
and Binary. Prior to the shares of SI trading on any of the following national
stock exchanges (New York Stock Exchange, American Stock Exchange, NASDAQ
National Market System, Toronto Stock Exchange, NASDAQ Small Cap or American
Stock Exchange Emerging Market), if SI is the subject of any merger,
acquisition, stock purchase, reverse takeover, consolidation or other
transaction or reorganization which results in an entity becoming the parent of
or holding, directly or indirectly, an equity interest of over thirty percent
(30%) in SI prior to full payment of all obligations to Lender under the Loan
Documents, then such parent or entity (in addition to SI) must become a Borrower
and assume the Consolidated Loan within thirty (30) days and fulfil all of SI's
obligations under the Loan Documents. It is the Borrowers' intent for SI to
issue shares to be traded on a recognized securities exchange. SI will not
liquidate, dissolve or materially change the general character of its business.
Notwithstanding the foregoing, SI may establish and invest in Affiliates which
are wholly-owned subsidiaries of SI consistent with the provisions of this
Agreement and, specifically, the limitations of paragraphs 4.10 and 4.11 hereof
so long as no Event of Default shall have occurred and be continuing.
4.10 CORPORATE ACTIONS. The Borrowers will not:
(a) Declare or pay dividends on account of any stock of the
Borrowers, except that SI may issue warrants, options, stock, rights or any
other form of equity security as a dividend;
(b) Permit AVRE or Binary to directly or indirectly, make or
commit to make investments of any kind or capital expenditures or expenditures
for the lease or rental of real or personal property during any fiscal year
which shall exceed in the aggregate Two Hundred Thousand Dollars ($200,000),
except for new acquisitions of centers or startup Facilities conducting Blood
Business which becomes part of Lender's Collateral, and Borrowers execute and
deliver all reasonable Security Agreements in substantially similar form to the
Loan Documents to grant the Lender a perfected first priority lien and security
interest therein;
(c) Without Lender's prior consent, the Borrowers will not
sell, transfer, liquidate, assign or otherwise dispose of the Collateral or any
interest therein, except as to (i) sales of Inventory in the ordinary course of
business; (ii) one or more
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sales of assets outside the ordinary course of business in any fiscal year
having an aggregate book value of Seventy-Five Thousand Dollars ($75,000) or
less; or (iii) a sale of an Existing Facility provided that the following
conditions are met: (a) Lender must receive the purchase price less costs of
sale (the "Net Sale Proceeds"); (b) all cash proceeds of sale due on sale
closing after deducting costs of sale ("Cash Sale Proceeds") are paid to Lender
at closing; (c) the sale will provide Lender with at least Two Hundred Thousand
Dollars ($200,000) in Cash Sale Proceeds OR Borrowers will pay to Lender the
difference between Two Hundred Thousand Dollars ($200,000) and the Cash Sale
Proceeds concurrently with the closing of the sale; (d) Borrowers disclose all
relations with and provide information concerning the identity of the proposed
purchaser to the extent reasonably satisfactory to Lender so that Lender can
verify that the proposed purchaser is in no way related to or affiliated with
one or more of the Borrowers; (e) the purchaser must be a bona fide third party
and cannot be an Affiliate or affiliated with an officer, director or
shareholder of any Borrower or Affiliate; and (f) before a Borrower may sell an
Existing Facility or accept a binding offer, letter of intent or agreement to do
so, the Borrower will notify Lender of all terms of sale and provide all
documents then existing reflecting the binding offer, letter of intent and
agreement, and unconditionally offer to sell the Existing Facility to Lender in
writing on the same material terms as the proposed sale to the third party
except any terms which would preclude Lender from accepting because it would
place Lender at a competitive disadvantage with respect to the exercise of the
rights of first refusal. Lender shall have thirty (30) days after receiving the
offer, letter of intent or preliminary agreement concerning the proposed sale to
the third party, during which Lender and its agents will be given full access to
conduct any due diligence concerning the proposed sale and the purchaser and to
notify Borrowers that Lender unequivocally accepts and will purchase the
Existing Facility for the same purchase price, method of purchase price payment
(subject to Lender's credit bit rights as set forth below) and material terms as
the third party, except any terms which would preclude Lender from accepting
because it would place Lender at a competitive disadvantage with respect to its
first refusal rights. After the earlier of Lender's notice of non-acceptance or
expiration of Lender's option period, Borrowers are free to complete the
transaction presented to the Lender, on the conditions set forth below in this
paragraph 4.10(c), free and clear of Lender's liens and security interests for a
period of ninety (90) days.
So long as Borrowers' obligations to Lender exceed the
proposed sale price of the Existing Facility to the third party, Lender may
purchase the Existing Facility and satisfy the proposed sale price by credit
bidding a sufficient amount of Borrowers' then outstanding obligations to Lender
against the sale price. Lender's credit bid will be deemed to have been made no
later than the time period scheduled for the closing of the proposed sale to the
third party.
With respect to a proposed sale of an Existing Facility to a
third party calling for a partial payment of the purchase price upon the closing
and deferred payments thereafter, Lender shall credit bid such amounts of
Borrowers' then
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outstanding obligations to Lender in such amounts and such times as the proposed
third party purchaser is required to pay under the proposed sale or sooner in
Lender's discretion. In the event of such a sale of an Existing Facility, the
Borrower must take back a negotiable purchase money promissory note ("Purchase
Money Note") secured by a first priority security interest in such Existing
Facility and, if previously pledged to Lender, Lender's lien on the Leasehold.
At the sale closing, the selling Borrower must assign as Collateral such
Purchase Money Note and security documents and deliver them to Lender or Lender
shall not be required to release its liens and security interests against the
Existing Facility. In the event of a reasonable request by Borrower to retake
possession of the Purchase Money Note for purposes of collection, Lender shall
deliver it to Borrower and Borrower will take all necessary steps to continue
Lender's perfected security interest in such Collateral. Unless there is an
Event of Default, Borrower can undertake reasonable steps to enforce the
Purchase Money Note and deliver collections of the Purchase Money Note to
Lender. If the Cash Sale Proceeds were less than $200,000 on closing, Borrower
shall pay Lender the difference between $200,000 and the Cash Sale Proceeds at
closing. Borrowers shall remit the full amount of each payment under the
Purchase Money Note to Lender within ten (10) days of receipt until Lender has
received a total amount equal to the Net Sale Proceeds. Thereafter, Borrower may
recoup their prior payments to Lender at closing from the subsequent collections
of the Purchase Money Note.
In the event the sale of the Existing Facility to the third
party is in an amount in excess of all of Borrowers' then outstanding
obligations to Lender, Lender may credit bid the remaining obligations of
Borrowers to Lender and pay the remaining portion of the purchase price in cash
in a manner consistent with the other provisions of this Paragraph, except that
Lender's obligations to pay cash shall not arise until all of Borrowers' then
outstanding obligations to Lender have first been satisfied in full.
(d) Permit AVRE or Binary to transfer, sell, liquidate, assign
or otherwise dispose of any license or permit to conduct a Blood Business
without Lender's prior approval, except as permitted hereby;
(e) Have outstanding accounts receivable (except as permitted
by subparagraph 1) of this paragraph 4.10), loans or other advances owing to any
Borrower by any Affiliate, shareholders, directors, officers, consultants or
employees of any Borrower or any Affiliate;
(f) Permit any ownership interest in AVRE, Binary or a
subsidiary of AVRE or Binary or other Affiliate to be owned or held, in whole or
in part, by any other person or entity other than SI or, as applicable, AVRE or
Binary;
(g) Permit payment by AVRE or Binary, of any salary, bonus,
compensation, expense sharing, tax reimbursement, management fee, overhead
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allocation (including office rent expenses), or other payment of any kind
whatsoever to SI (except payments for obligations owed to Lender), any
Affiliate, any shareholder, director, officer, consultant or employee of SI or
any Affiliate except for payments by AVRE or Binary for management or overhead
fees which shall not exceed (i) $70,000 per month, and (ii) $840,000 in any
calendar year. It is understood that for such fees AVRE and Binary will be
provided such general and administrative services of at least the scope and
quality as are being currently provided so that neither AVRE nor Binary will
incur any other general or administrative expenses or any other expenses for
such services.
(h) Except as approved in writing by Lender, which approval
may be withheld for any reason, invest in or permit the operation by any
Affiliate of any Blood Business other than a Blood Business conducted at
facilities operated by an Affiliate, directly or indirectly, which is a wholly-
owned subsidiary of SI other than AVRE or Binary.
(i) Permit any Affiliate to conduct Blood Business within ten
(10) miles of an Existing Facility, except under the following conditions:
(1) Lender shall be first notified that the Affiliate is
engaging in the Blood Business;
(2) The Borrowers provide the Lender with the historical
operating information for such Existing Facility, including production volume,
gross revenue and operating income for each of the previous twelve (12) months.
(3) The Affiliate shall have first executed a Negative
Pledge Agreement;
(4) At Lender's request, such Affiliate adheres to the
same reporting requirements of AVRE and Binary as set forth in paragraphs 4.3
through 4.5 of this Agreement; and
(5) The Affiliate first certifies to Lender in writing
that it will not violate the unfair trade practice laws of the State where is it
located.
(j) Permit any Existing Facility to substantially curtail its
Blood Business operation or close an Existing Facility unless Borrowers first
pay Lender Two Hundred Thousand Dollars ($200,000) prior to or contemporaneously
with Borrowers' decision to substantially curtail the operations of or close the
Existing Facility which may be applied by Lender in its discretion as permitted
by the Loan Documents.;
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(k) Knowingly permit any Affiliate to offer Blood Business or
other products and services on terms, including without limitation, price and
quality, that would place the services and products provided by the Existing
Facilities at a competitive or economic disadvantage with those offered at the
facilities of such Affiliate;
(l) Permit SI or any Affiliate to engage in purchases, sales or
other transactions with AVRE or Binary other than in the ordinary course of
business on economic terms no less favorable than those available from third
parties which are not Affiliates;
(m) To violate any of the terms or conditions of or fail to
perform any of Borrowers' obligations under the Settlement Agreement or the
Bankruptcy Plan;
4.11 LIMITATIONS ON LOANS. INVESTMENTS AND ADVANCES. The Borrowers will
not, directly or indirectly, make or have outstanding any loan or advance to or
an equity or other investment in, or acquire all or a substantial part of the
assets or properties of, or own or acquire stock or debt instruments except for
(i) government securities, or (ii) certificates of deposit, money market
accounts, deposit account balance of any kind or instruments which are fully
insured by either an agency of the United States of America or through a state
chartered financial institution, or other securities of, any entity or person,
except that SI, but not AVRE or Binary, may invest in wholly-owned Affiliates
conducting business in accordance with the provisions of paragraph 4.10 hereof,
and which execute and deliver to Lender a Negative Pledge Agreement in
substantially the form set forth on Schedule "E" hereto concurrent with its
receipt of any investment from SI.
4.12 OTHER AGREEMENTS. The Borrowers will not enter into any agreement
or do any act which might limit or restrict the Borrowers' ability to comply
with the terms of the Loan Documents or the ability of any Affiliate to comply
with the Negative Pledge Agreement.
4.13 ADDITIONAL DOCUMENTS. The Borrowers agree to execute and deliver
any documents, including Security Agreements, which are necessary in the
reasonable judgment of the Lender to obtain, maintain and perfect the mortgage
liens and security interests intended to be created by the Loan Documents and to
enable the Lender to comply with any federal or state law otherwise applicable
to the Lender.
4.14 ORDINARY OPERATIONS. The Borrowers shall use all reasonable
efforts to operate their business in the usual, regular and ordinary course so
as to maintain the goodwill it now enjoys, and to use all reasonable efforts to
preserve and maintain its present business organization, keep available the
service of its present employees, and preserve its relationship with suppliers,
customers and other having business dealings
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with it; provided that this paragraph will not limit management's ability to
hire and fire employees.
4.15 MAINTENANCE OF PROPERTY. The Borrowers shall maintain all of their
properties in customary repair, order and condition, reasonable wear in use and
damage by fire or unavoidable casualty excepted. In the event Borrowers enter
into a new Lease, or modify or extend any existing Lease, Borrowers shall use
reasonable diligence and cooperate with the Lender to obtain Landlord's approval
to a pledge of Borrowers' interest in such Lease, and an attornment agreement
recognizing Lender's rights. Copies of all of the Leases listed on Schedule "H"
hereto have been delivered to Lender, which leases constitute the only
facilities leased by the Borrowers as of the date hereof. The Borrowers own no
facilities or other real property, except the Vacant Parcels.
4.16 DEBTS. Neither AVRE nor Binary shall directly or indirectly, incur
any indebtedness of any kind, except (i) obligations to the Lender arising under
the Loan Documents; (ii) taxes, surcharges or fees incurred and paid in the
ordinary course of business; (iii) any obligations of AVRE or Binary required to
be paid pursuant to any law or regulation; (iv) obligations related to the
conduct of the Blood Business operations, except neither AVRE nor Binary will be
permitted to borrow any money; (v) subject to the limitation of paragraph
4.10(g), obligations for professional persons and/or consultants deemed
necessary by management of the Borrowers. Neither AVRE nor Binary shall create,
assume or suffer to exist any trust deed, mortgage, pledge, security interest,
encumbrance or other lien except as permitted under paragraph 4.7.
4.17 BANKRUPTCY; ADVANCE WAIVER. In the event any Borrower (or any
transferee or successor of any Borrower) files a bankruptcy proceeding or
attempts to reopen or modify the Plan to affect the treatment of Lender
postconfirmation, or has commenced against it any involuntary bankruptcy
proceeding which is not dismissed within thirty (30) days, at any time after
execution of this Agreement and before the earlier of: (i) a period of two (2)
years; or (ii) seventy-five percent (75%) of the principal indebtedness owing to
Lender under the Consolidated Note has been repaid, and subjects all or any part
of the Collateral to the jurisdiction of the United States Bankruptcy Courts, as
a substantial consideration for Lender's consent to the terms of the Settlement
Agreement, the Bankruptcy Plan and acceptance of the Loan Documents, Lender
shall be entitled to immediate and unconditional relief from the automatic stay
(11 U.S.C. Section 362) in order to pursue all legal and equitable remedies
hereunder, including any foreclosure proceeding against the Collateral and any
other security for the Consolidated Note or other Loan Documents, and the filing
of such proceeding shall be deemed consent to such relief by all Borrowers or
the owner of the Collateral. Lender and Borrowers expressly acknowledge and
agree that this provision neither directly nor indirectly waives, prohibits or
limits the right or ability of Borrowers (or any transferee or successor of
Borrowers) to file any bankruptcy proceeding.
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5. `REPRESENTATIONS; WARRANTIES. The Borrowers jointly and severally
represent and warrant to the Lender as follows:
5.1 OWNERSHIP. The Borrowers are the sole owners of the Collateral
free from all claims, liens, security interests, encumbrances and title
retention devices, except possible liens on the Vacant Parcels. The Borrowers
will defend title to the Collateral against all claims and demands of any person
which are adverse to the Lender as long as the Consolidated Loan has not been
paid in full.
5.2 LITIGATION. To the best of Borrowers' knowledge, other than the
Bankruptcy Proceeding, there is no action, suit, proceeding or investigation
pending or threatened against the Borrowers or the Collateral (except as listed
in Schedule "J"). In addition, Borrowers are not aware of litigation which might
materially and adversely affect the Borrowers or the Collateral or result in any
substantial liability not adequately covered by insurance or impair the ability
of Borrower to carry on Borrowers' business as the same is conducted as of the
date hereof.
5.3 NO DEFAULT. Execution and delivery by the Borrowers of, and the
performance by the Borrowers, of its obligations under this Agreement and each
of the Loan Documents have been authorized by all necessary action and do not
and to the best of Borrowers' knowledge will not: (a) violate or conflict with
any provision of any contract, lease or other agreement or document to which any
Borrower is a party or by which any of its assets or the Collateral are bound;
(b) result in or require the creation of any lien, claim, charge or other right
of others of any kind on or with respect to any property now or hereafter owned
or leased by any Borrower other than the liens granted to the Lender; or (c)
violate any provision of any law or regulation presently in effect.
5.4 FINANCIAL INFORMATION. The financial information to be delivered
to the Lender relating to the Borrowers and the Collateral is correct, complete
and fairly represents the financial condition and the results of operations of
the Borrowers and the value of the Collateral as of the dates of such financial
information and there has occurred no material adverse change in such financial
information.
5.5 VALIDITY. ENFORCEABILITY AND PERFECTION. As already approved by
the Bankruptcy Court's confirmation Order in the Bankruptcy Proceedings, (i) the
Loan Documents constitute the legal, valid and binding obligations of the
Borrowers enforceable against the Borrowers in accordance with their respective
terms; (ii) the Lender has good, valid and perfected first priority security
interests in the Collateral described in the Security Agreements (with the
possible exception of the Vacant Parcels), subject to paragraph 1.11.11 and the
provisions of paragraph 4.7(a), (c) and (d) of this Agreement; and (iii) Lender
has a good, valid and perfected first priority security interest in and to the
shares of AVRE and Binary pledged to Lender under the Stock Pledge Agreement. To
the best of Borrower's knowledge after appropriate
-21-
inquiry, the grant of such security interests to Lender shall not violate the
rights of any third party.
5.6 STATUS OF BORROWERS. Each of Borrowers: (a) is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its incorporation; (b) has all requisite authority to conduct its business and
own and lease its properties, including the Collateral; and (c) is qualified to
do business in every jurisdiction in which the nature of such Borrower's
business requires such qualification The individuals executing the Loan
Documents on behalf of the Borrowers have the power and authority to execute,
deliver and perform Borrowers' obligations under the Loan Documents.
5.7 COMPLIANCE WITH LAWS. No Borrower is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, or a
"holding company" or an "affiliate" of a "holding company" or a "public utility"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended. The Borrowers are in compliance in all material decrees which are
applicable to the Borrowers or the Collateral including, without implied
limitation, all state and federal securities laws, the Employee Retirement
Income Security Act of 1974, as amended, the Fair Labor Standards Act,
Regulations of 1974, as amended, the Fair Labor Standards Act, Regulations G, T,
U and X of the Board of Governors of the Federal Reserve System and all
environmental, health and safety laws.
5.8 ENVIRONMENTAL LIABILITY. No Borrower is in violation of any
Environmental Law or subject to any claims for remediation of Hazardous
Substances with respect to any property owned or occupied by Borrower. Before
acquiring or entering any new lease or purchase of property, Borrowers shall
make reasonable inquiry into compliance with all Environmental Laws and any
claims for remediation of Hazardous Substances with respect to any new property
to be owned or occupied by any Borrower.
5.9 DISCLOSURE. No representation or warranty made by the Borrowers in
the Loan Documents contains any untrue statement of a material fact or omits to
state any material fact necessary to make the statements therein not misleading.
There is no fact known to the Borrowers which has or might reasonably be
anticipated to have a material adverse effect on the business, assets, financial
condition or operations of the Borrowers or the value of the Collateral which
has not been disclosed to the Lender in writing.
5.10 ADDITIONAL REPRESENTATIONS. WARRANTIES AND COVENANTS. The
Borrowers further jointly and severally represent, warrant, covenant and agree
as follows:
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(a) ACCOUNTS RECEIVABLE INFORMATION. In addition to the account
receivables aging report delivered each month to Lender under the terms of
paragraph 4.4.4 hereof, at Lender's request, the Borrowers will provide
supplementary information sufficient to show the customer names, addresses,
phone and fax numbers for each account debtor of the Borrowers, together with
the name of the principal contact of the Borrowers at such customer.
(b) AFFILIATES; INVESTMENTS. Schedule "F" hereto contains a
complete list of all corporations, joint ventures, partnerships, or other
entities in which any Borrower has any equity interest or interest as a lender,
all of which shall be deemed Affiliates hereunder. Borrowers shall promptly
notify Lender in the event that future actions cause Schedule "F" to become
inaccurate or incomplete, and shall promptly thereafter provide Lender with an
updated, accurate Schedule "F."
(c) AVRE AND BINARY SHARES.
(i) Except as set forth in the 1933 Act, there are no
restrictions upon the transfer of any of the shares of AVRE and Binary owned by
SI (the "Shares"), and SI has the right to pledge and grant a security interest
in or otherwise transfer the Shares free of any encumbrances or rights of third
parties and all Shares shall be held as Collateral as defined under the Stock
Pledge Agreement;
(ii) All of the Shares are and shall remain free from all
liens, claims, encumbrances, and purchase money or other security interests
subject to the provisions of paragraphs 4.7(a), (c) and (d) of this Agreement.
SI shall not, without Lender's prior written consent, sell, transfer or
otherwise dispose of any or all of the Shares;
(iii) The Stock Pledge Agreement, and the delivery to Lender of the Shares,
creates a valid and perfected security interest in the Shares and as a result of
the entry of an order described in paragraph 3.3 above, all actions necessary or
desirable to such perfection have been duly taken;
(iv) Except as set forth in the 1933 Act or applicable
state securities laws, and as a result of the entry of an order described in
paragraph 3.3 above, no authorization or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required either
(A) for the perfection of or exercise by Lender of its rights and remedies under
the Stock Pledge Agreement (except as may have been taken by or at the direction
of Lender or as may be required in connection with a disposition of Shares by
laws affecting the offering and sale of securities generally), or (B) for the
exercise by Lender of the voting or other rights provided for in the Stock
Pledge Agreement or the remedies in respect of the Shares pursuant to the Stock
Pledge Agreement;
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(v) The Shares represent 100% all of the issued and
outstanding shares of capital stock of AVRE and Binary;
(vi) No person holds no options, warrants or other rights
to acquire capital stock of AVRE or Binary; and
(vii) All of the Shares have been duly and validly issued,
and they are fully paid and nonassessable.
5.11 ADDITIONAL MATTERS. Each of the Borrowers and Lender represents
and warrants that they (a) have been advised by legal counsel of the their
choice in the transactions contemplated by the Agreement; (b) are fully aware
and clearly understands all of the terms and provisions contained in this
Agreement; (c) have voluntarily, with full acknowledge and without coercion or
duress of any kind, entered into this Agreement; (e) on their own initiative
have made proposals to the Lender, the terms of which are reflected by this
Agreement; and (f) have received actual and adequate consideration to enter into
this Agreement, to become obligated hereby and to grant the security interests
granted under the Loan Documents to the Lender.
6. ENVIRONMENTAL COMPLIANCE. The Borrowers agree that they will not use,
generate manufacture, produce, store, release, discharge or dispose of any
Hazardous Substance or knowingly allow any other person to do so in violation of
any Environmental Law. The Borrowers agree to give prompt written notice to the
Lender of: (a) any proceeding or inquiry by any federal, state, local or foreign
governmental authority with respect to any violation of Environmental Law by the
Borrowers or any Affiliate; (b) all claims made or threatened by any third party
against the Borrowers or any Affiliate relating to any loss or injury resulting
from any Hazardous Substance; and (c) the discovery by the Borrowers or any
Affiliate of any occurrence or condition that could reasonably cause the
Borrowers or any Affiliate to be subject to any restrictions on the ownership,
occupancy, transferability or use of any property of the Borrowers under any
Environmental Law. With respect to any act or conduct occurring after the date
of this Agreement and any new leases or purchases of property by the Borrower,
the Borrowers agree to protect, indemnify and hold harmless the Lender, its
directors, officers, employees, agents, successors and assigns against all loss,
damage, cost, expense or liability (including reasonable attorneys' fees and
costs) directly or indirectly arising out of or attributable to the use,
generation, manufacture, production, storage, release, threatened release,
discharge, disposal or presence of a Hazardous Substance by the Borrowers or any
Affiliate, including without implied limitation: (i) all foreseeable
consequential damages; and (ii) the costs of any required or necessary repair,
cleanup or detoxification and the preparation and implementation of any closure,
remedial or other required plan. The foregoing indemnity agreement will survive
the payment of the Loan and the release or other termination of the Loan
Documents. In the event that any investigation, site monitoring, containment,
cleanup, removal, restoration or other remedial work of any kind or nature is
reasonably necessary or desirable
-24-
under any applicable Environmental Law or required by any governmental or
nongovernmental entity or person because of, or in connection with, the current
or future presence, suspected presence, release or suspected release of a
Hazardous Substance on or into the air, soil, groundwater, surface water or soil
vapor by the Borrowers or any Affiliate, the Borrowers agree within thirty (30)
days after written demand for performance thereof by the Lender (or such shorter
period of time as might be required under any applicable Environmental Law) to
commence, or cause to be commenced, and thereafter diligently prosecute or cause
to be prosecuted to completion, all such remedial work except as to any property
of an Affiliate not subject to a lien or security interest in favor of Lender.
At Lender's option, remedial work will be performed by one or more contractors
approved by the Lender under the supervision of a consulting engineer approved
by the Lender. All costs and expenses of such remedial work will be paid by the
Borrowers including, without implied limitation, the charges of such
contractor(s) and consulting engineer(s), and the Lender's reasonable attorneys'
fees and costs incurred in connection with monitoring or review of such remedial
work.
7. EVENTS OF DEFAULT. The Lender may terminate all obligations of the
Lender hereunder and may exercise the remedies held by the Lender under the Loan
Documents if any of the following events occur and are not remedied by the
Borrowers or waived in writing by the Lender.
7.1 NONPAYMENT. The nonpayment, within ten (10) days of the date when
due, of any installment of interest or principal owing under the Consolidated
Note or of any other amount payable to the Lender under the terms of the Loan
Documents.
7.2 BREACH OF AGREEMENT. The failure by the Borrowers to perform or
observe any representation, warranty or agreement contained in any of the Loan
Documents, including defaults described in paragraph 7.3 through 7.14, including
without implied limitation any provision of paragraphs 3, 4, 5 and 6 hereof,
which shall continue for a period of twenty (20) days after the Borrowers become
aware thereof, except that any obligations related to the payment of money or
maintenance of insurance shall have no grace period except as otherwise
expressly provided in paragraph 7.1 hereof.
7.3 LIEN FILINGS. The existence for a period of sixty (60) days of any
lien other than liens created by the Loan Documents or permitted hereunder, or
liens being diligently contested by Borrowers, covering all or any portion of
the Collateral.
7.4 CASUALTY LOSS. Substantial damage, destruction or taking of all or
any portion of the Collateral which is an uninsured risk.
7.5 REPRESENTATIONS AND WARRANTIES. Any representation, statement,
certificate, schedule or report made or furnished to the Lender by or on behalf
of the
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Borrowers proves to be false or erroneous in any material respect at the time of
the making thereof or any representation or warranty contained in the Loan
Documents ceases to be complied with in any material respect.
7.6 INSOLVENCY: BANKRUPTCY. The insolvency of any Borrower, or the
institution of bankruptcy, reorganization, liquidation, receivership or
conservatorship proceeding by or against any Borrower. For the purposes of this
paragraph, insolvency shall mean (i) an inability to pay debts as the same
become due as to any of the Borrowers or (ii) the existence of liabilities in
excess of assets (using book value,, but including goodwill), as to SI on a
consolidated basis including the obligation to Lender hereunder as a liability
or as to either AVRE or Binary on an unconsolidated basis without including the
obligation to Lender hereunder as a liability).
7.7 JUDGMENT. Entry by any court of a final uninsured money judgment
in excess of $50,000 against any Borrower unless the Borrower timely appeals and
posts a bond therefor or an attachment of the Collateral or any part thereof
which is not discharged or stayed to the satisfaction of the Lender.
7.8 OTHER DEBT. The default in payment or acceleration of the maturity
of any indebtedness of any Borrower owing in excess of $50,000.
7.9 ADVERSE CHANGE. The occurrence of a material adverse change in the
financial condition of any Borrower or the value of the Collateral, except as
permitted in paragraphs 4.10(c) and (j).
7.10 IMPAIRMENT OF EXISTING FACILITY FROM AFFILIATE'S OPERATIONS. If
any Existing Facility is being operated within ten (10) miles of an Affiliate's
Blood Business facility, it shall be an Event of Default if:
(a) Volume of Plasma in any period of three consecutive months
at such Existing Facility falls twenty-five percent (25%) below the level
produced in the same months of the year before the Affiliate started operation
in the vicinity;
(b) Gross Revenues in any period of three consecutive months at
such Existing Facility falls twenty-five percent (25%) below the level produced
in the same months of the year before the Affiliate started operation in the
vicinity;
Unless Lender has previously been granted, or is granted within ten (10) days
after written demand to Borrowers and Affiliate (i) a first priority security
interest and lien in the Affiliate's new center, or (ii) additional or
replacement collateral for such Existing Facility, each in form and substance
satisfactory to the Lender.
7.11 CORPORATE EXISTENCE. Any act or omission (formal or informal) of
the Borrowers or their officers, directors or shareholders leading to, or
resulting in, the
-26-
termination, invalidation (partial or total), revocation, suspension,
interruption or unenforceability of their corporate existences, rights,
licenses, franchises or permits, or the transfer or disposition (whether by
sale, lease or otherwise) to any person of all or a substantial part of their
property, provided that such revocation, suspension or interruption is not cured
within sixty (60) days.
7.12 REPUDIATION. The repudiation by any Borrower of any obligations
under this Agreement or any other Loan Document or the assertion of any claim or
liability against the Lender by any Borrower.
7.13 CERTAIN PROCEEDINGS. The indictment of any Borrower under any
criminal statute or the commencement of any civil or criminal proceedings
against any Borrower pursuant to the penalties and remedies sought or available
include the forfeiture of property having a value in excess of $150,000 or the
cessation of the ability of any Borrower to conduct the normal course of its
business.
7.14 CHALLENGE TO ENFORCEMENT. If any material provision of this
Agreement or any Loan Document shall at any time for any reason cease to be
valid and binding or fully enforceable against any party thereto (other than
Lender) or shall be contested by any party (other than Lender) unless (i) the
provision relates to the validity or perfection of a security interest in
Collateral which is impaired by virtue of a third party's interest in the
Collateral (excluding a third party to whom one or more Borrowers is in
contractual privity or to whom such Borrower is a direct obligor); (ii) such
provision relates to Collateral and results from either a disposition of
Collateral authorized by this Agreement or the impairment, loss or forfeiture of
Collateral is covered by an insurance policy under which Lender is the sole Loss
Payee other than Borrowers; (iii) the provision relates to an impairment of
Lender's security interest in Collateral and the impairment is authorized by
this Agreement; (iv) such enforceability is due to a provision of law which
Borrowers may not waive; or (v) such remedy or right to which Lender may not be
entitled by applicable law, in which case the Lender shall be afforded rights
and remedies to the fullest extent of the law.
8. REMEDIES. On the occurrence of an Event of Default, in addition to any
other rights and remedies which the Lender might hold under the terms of any one
or more of the Loan Documents, the Lender will have the following remedies to
the full extent permitted by law:
8.1 ACCELERATION OF MATURITY. The Lender may, at the Lender's option,
terminate any or all obligations of the Lender hereunder and/or declare the
Consolidated Note and all other amounts owing by the Borrowers to the Lender to
be immediately due and payable, demand performance of all other obligations of
the Borrowers under the Loan Documents and proceed to selectively and
successively enforce any one or more of the Lender's rights under the Loan
Documents.
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8.2 SELECTIVE ENFORCEMENT. In the event the Lender elects to
selectively and successively enforce the Lender's rights under any one or more
of the Loan Documents, such action will not be deemed a waiver or discharge of
any other right, lien or encumbrance securing payment of the Consolidated Note.
Lender may proceed against the Borrowers or any guarantor selectively and
without any requirement to proceed against all of them or against any of them in
any particular order.
8.3 PERFORMANCE BY LENDER. In the event the Borrowers fail to cure or
cause to be cured any Event of Default within the time periods provided herein,
the Lender will at any time thereafter have the right, but not the obligation,
to cause the Event of Default to be cured on the Borrowers' behalf and to pay
any secured or unsecured claim (whether prior to or subordinate to the claims of
the Lender) affecting the Collateral or lease payments in such manner and at
such times as the Lender determines to be appropriate under the circumstances.
The Borrowers hereby authorize the Lender to increase the indebtedness owing by
the Borrowers to the Lender by the cost of curing any Event of Default or
satisfying any claim against the Borrowers or the Collateral and agrees that the
Loan Documents will evidence and secure payment of such costs whether or not the
total funds advanced by the Lender exceed the face amount of the Loan Documents.
8.4 WAIVER OF DEFAULT. The Lender may, by an instrument in writing
signed by the Lender, waive any Event of Default which has occurred and any of
the consequences of such Event of Default and, in such event, the Lender, the
Borrowers will be restored to their respective former positions, rights and
obligations hereunder. Any Event of Default so waived will, for the purposes of
the Loan Documents, be deemed to have been cured and not to be continuing, but
no such waiver will extend to any subsequent or other Event of Default or impair
any consequences of such subsequent or other Event of Default. No waiver of any
Event of Default by the Lender will be implied from the failure or delay by the
Lender to take any action in respect of the Event of Default. No express waiver
of any condition precedent or Event of Default will affect any other Event of
Default or extend any period of time for performance other than as specified in
such express waiver. One or more waivers of any Event of Default will not be
deemed a waiver of any subsequent failure by the Borrowers to perform the same
provision or any other provision. The consent to or approval of any act or
request by the Lender will not be deemed to waive or render unnecessary the
consent to or approval of any subsequent similar act or request. The partial
exercise of any right or remedy under the Loan Documents will not preclude any
other or further exercise thereof or the exercise of any other right or remedy.
No course of dealing between the Borrowers and the Lender will be deemed to
amend the terms of the Loan Documents or to preclude the Lender from exercising
the rights and remedies therein contained notwithstanding such course of
dealing.
8.5 CUMULATIVE REMEDIES. The rights and remedies of the Lender
provided by the Loan Documents are cumulative and no right or remedy will be
exclu-
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sive of any other or of any other right or remedy which the Lender might
otherwise have by virtue of the occurrence of an Event of Default and the
exercise of any right or remedy by the Lender will not impair the Lender's
standing to exercise any other right or remedy.
8.6 WAIVER OF MARSHALLING OF ASSETS. The Borrowers, jointly and
severally, for themselves and all who may claim through or under them, hereby
expressly waive and release all rights to have the Collateral, or any part
thereof, or any of their other properties, marshalled on any foreclosure, sale
or other enforcement of remedies, and the Lender or any court in which the
foreclosure of liens or security interests in the Collateral are sought, shall
have the right to sell the Collateral as an entirety in a single parcel.
9. NO FURTHER MODIFICATION. No provision hereof can be changed, waived,
discharged or terminated, except by an instrument in writing signed by the party
against whom the enforcement of the change, waiver, discharge or termination is
sought. It is understood that the Lender is under no obligation to extend the
term of any credit extended under this Agreement or any other Loan Document and
any such further modifications or extensions will be made in the Lender's sole
and absolute discretion. Any such modifications or extensions will be evidenced
by the acceptance by Lender of a written agreement having terms acceptable to
the Lender. Each of the Borrowers acknowledge that all of the terms and all of
the obligations of Lender with respect to any credit of any kind extended to the
Borrowers is fully contained in this Agreement and any other Loan Documents and
that no other understanding, written or oral, has been entered into in
connection herewith.
10. RELEASE OF LENDER. As additional consideration for the undertaking to
execute and deliver this Agreement, the Borrowers hereby each release and
forever discharge the Lender, the Lender's agents, servants, employees,
officers, directors, attorneys, and shareholders, as well as the respective
successors and assigns of any and all thereof (collectively, the "Released
Lender Parties") from all damage, loss, claims, demands, liabilities,
obligations, actions and causes of action whatsoever which the Borrowers, or any
of them, might now have or claim to have against the Lender, whether presently
known or unknown, and of every nature and extent whatsoever, on account of or in
any way concerning, arising out of or founded on the Original Loan Agreement, or
any document described therein or delivered in connection therewith, or any
other dealings between Borrowers and Lender, and including without implied
limitation, all such loss or damage of any kind heretofore sustained that might
arise as a consequence from the dealings between the parties.
To the extent applicable, the Borrowers each waive the provisions of
Section 1542 of the California Civil Code which provides as follows:
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"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR"
________ _______ ________
SI AVRE BINARY
11. MISCELLANEOUS. It is further agreed as follows:
11.1 TIME. Time is the essence of each provision of this Agreement.
11.2 NOTICE. Any notice, demand or communication required or permitted
to be given by any provision of this Agreement will be in writing and will be
deemed to have been given when delivered personally, to the party designated to
receive such notice, or on the date following the day sent by overnight courier,
or on the third (3rd) business day after the same is sent by certified mail,
postage and charges prepaid, directed to the following addresses or to such
other or additional addresses as any party might designate by written notice to
the other party:
To the Borrowers: SeraCare, Inc.
AVRE, Inc.
Binary Associates, Inc.
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx, President
and Chief Executive Officer
To the Lender: CVD Financial Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
XXXXXX
Attention: Xxx Xxxxxxx
11.3 SUCCESSORS AND ASSIGNS. This Agreement will inure to the benefit
of and bind the respective successors and permitted assigns of the Borrowers and
Lender.
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11.4 ATTORNEYS' FEES. If any legal action or proceeding is brought by
any party in order to enforce a provision of this Agreement or any Loan
Document, the unsuccessful party in such action or proceeding, whether or not
such action or proceeding is prosecuted to final judgment, shall pay all of the
attorneys' fees and costs incurred by the prevailing party. If any Borrower
shall become the subject of any bankruptcy or insolvency proceeding, the
Borrowers shall pay to the Lender on demand all attorneys' fees, costs and
expenses which the Lender may incur (i) to obtain relief from or otherwise in
connection with any bankruptcy or insolvency proceeding which delays or
otherwise impairs the Lender's exercise of any right or remedy under this
Agreement, or any of the Loan Documents, or (ii) to obtain adequate protection
or assurance for any of the Lender's rights or collateral.
11.5 PARTIAL INVALIDITY. If any provision of this Agreement is
determined by a court having jurisdiction to be illegal, invalid or
unenforceable under any present or future law, the remainder of this Agreement
will not be affected thereby. It is the intention of the parties that if any
provision is so held to be illegal, invalid or unenforceable, there will be
added in lieu thereof a provision as similar in terms to such provision as is
possible that is legal, valid and enforceable.
11.6 HEADINGS. The headings used in this Agreement are for ease in
reference and are not intended to affect the interpretation of this Agreement in
any way.
11.7 APPLICABLE LAW. The lending transaction contemplated by this
Agreement and the Loan Documents has been negotiated, consummated and is to be
performed in the State of California. This Agreement and the other Loan
Documents described herein shall be governed by, and construed and enforced in
accordance with the substantive law of the State of California to the fullest
extent permitted by law, including choice of laws. The parties hereto recognize
that the laws of other states may govern, among other things issues of
perfection and foreclosure. Any action or proceeding arising in connection with
this Agreement and the Loan Documents shall be brought in a federal or state
court within Los Angeles County, California, and the Borrowers hereby consent to
the jurisdiction of any federal or state court within the State of California
and located in State of California and located in Los Angeles County,
California. The Borrowers and Lender irrevocably and unconditionally submit to
the jurisdiction (both subject matter and personal) of each such court and
irrevocably and unconditionally waive (a) any objection that they might now or
hereafter have to the venue in any such court; and (b) any claim that any action
or proceeding brought in any such court has been brought in an inconvenient
forum. Notwithstanding the foregoing, the Lender may, in its sole and absolute
discretion, initiate proceedings in the courts of any other jurisdiction in
which any Borrower may be found or in which its assets may be located.
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11.8 INTEGRATION; SOLE AGREEMENT. The parties expressly acknowledge and
agree that, with regard to the subject matter of this Agreement and the
transactions contemplated herein (i) there are no oral agreements between the
parties; and (ii) this Agreement, the Bankruptcy Plan, the Loan Documents and
Settlement Agreement as defined herein (a) embody the final, complete and entire
agreement between the parties, (b) supersede all prior and contemporaneous
negotiations, offers, proposals, agreements, loan commitments, term sheets,
promises, acts, conduct, course of dealing, representations, statements,
assurances and understandings, whether oral or written, and (c) may not be
varied or contradicted by evidence of such prior contemporaneous matter or by
evidence of any subsequent oral agreement of the parties. In the extent there is
any inconsistency or any conflicts between the terms of the Loan Documents and
the Bankruptcy Plan, the provisions of the Loan Documents shall control the
parties rights hereunder.
11.9 JURY WAIVER. THE PARTIES HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL
BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS
AGREEMENT, ANY OF THE LOAN DOCUMENTS DESCRIBED HEREIN OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION WITH, OR (2) IN ANY
WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT, THE LOAN DOCUMENTS, OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE; AND THE PARTIES BY AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND
THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS TEN EVIDENCE OF THE
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CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
LENDER: CVD FINANCIAL CORPORATION,
a Delaware corporation
By: /s/ Xxx Xxxxxxx
-----------------------------
Its: VP & Sec
----------------------------
By:
-----------------------------
Its:
----------------------------
BORROWERS: SERACARE, INC., a Delaware corporation
formerly known as AMERICANBLOOD
INVESTMENT, INC. aDelaware
corporation
By: /s/ Xxxxx Xxxxx
-----------------------------
Its: President
----------------------------
By: /s/ Xxxxx X Xxxxxxx
-----------------------------
Its: Secretary
----------------------------
AVRE, INCORPORATED,
a Nevada Corporation
By: /s/ Xxxxx Xxxxx
-----------------------------
Its: President
----------------------------
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Its: Secretary
----------------------------
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BINARY ASSOCIATES, INC.,
a Colorado corporation
By: /s/ Xxxxx Xxxxx
-----------------------------
Its: President
----------------------------
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Its: Secretary
----------------------------
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