EXHIBIT 10.57
LOAN AGREEMENT
THIS AGREEMENT is made as of the first day of May 1998 by and between
POSITRON CORPORATION ("Borrower"), a Texas corporation with its principal place
of business at 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxx 00000 and IMATRON INC.
("Lender"), a New Jersey corporation with its principal place of business at 000
Xxxxxx Xxxxx Xxxx., Xx. Xxx Xxxxxxxxx, XX 00000.
R E C I T A L S:
WHEREAS, Borrower has requested Lender to make certain loans to Borrower
for working capital and certain other needs as provided herein and Lender is
agreeable to make such loans upon the terms and conditions hereof;
NOW THEREFORE, in consideration of these premises and the mutual
covenants and agreements herein contained and other valuable consideration,
the receipt and adequacy of which the parties hereto acknowledge, the
parties have agreed as follows:
1. DEFINITIONS.
As used in this Loan Agreement, the following terms shall have the
following meanings unless the context requires otherwise:
Borrower's Obligations means all present and future obligations of Borrower
to Lender hereunder, under the Note, or any other document executed in
connection herewith.
Default means any event set forth in Section 6.1 hereof.
Lender's Obligations means all present and future obligations of Lender to
Borrower hereunder, or any other document executed in connection herewith.
Loan Agreement means this Loan Agreement and all attachments, exhibits,
schedules hereto, all as may be amended from time to time.
Loan Rate means the Prime Rate listed in the Western edition of the Wall
Street Journal or, if not so listed, the reference rate in use by Bank of
America NS & TA on the final business day of each month, plus one-half percent
(1/2 %), as applied to the payment for the next month.
Payment Dates means the first day of each calendar month.
2. LOANS.
2.1. Lender agrees, on terms and conditions of this Loan Agreement, to make
loans (hereinafter called individually a "Loan" and, collectively "The Loans"),
to Borrower in an aggregate principal amount at any one time outstanding up to
but not exceeding Five Hundred Thousand Dollars ($500,000). Within such limit,
and subject to the various conditions set forth herein, Borrower may borrow,
repay, re-borrow at any time or from time to time from the date hereof up to and
including the earlier of March 1, 2000 and the termination of the commitment of
Lender, as provided at Section 6.2 below. The obligation of Lender to make Loans
up to but not exceeding such aggregate amount at any one time outstanding herein
is hereinafter called its "Commitment."
2.2. Except for the borrowing contemplated to be made upon execution of
this Agreement, as set forth in Schedule 3.1(g), Borrower shall give Lender at
least three(3) calendar days' written notice (effective upon receipt) specifying
the amount and date of each borrowing under Section 2.1. The foregoing
notwithstanding, and provided all conditions have otherwise been met, the timing
set forth in Schedule 3.1(g) shall be deemed written notice of the amounts and
dates set forth in the Schedule.
2.3. Borrower's obligations to pay the principal of and interest on the
Loans shall be evidenced by its grid promissory note in the form of Exhibit A
hereto (the "Note") payable to the order of Lender. The Note shall reflect the
amount of the Commitment, with actual Loans, repayments and balances noted by
Lender on the grid attached to the Note and made a part thereof. The Note shall
bear interest on the unpaid principal amount thereof until such principal amount
shall be paid in full at a per annum rate equal to the Loan Rate (based on a
year of 365 or actual number of days elapsed). The Loan Rate shall apply to the
average outstanding principal balance on the Note during any month which shall
be the summation of the daily balances during such month divided by the number
of days in the particular month. Unless accelerated in accordance with the
provisions of this Loan Agreement, the interest on the Note for any calendar
month shall be paid within fifteen (15) days of each consecutive Payment Date
immediately following such calendar month until full payment of the Loan (and
related interest), with the first Payment Date being the first day of the month
immediately following execution of this Agreement. All principal and interest on
the Note shall be due and payable in full on March 1, 2000. If any Payment Date
(or other date for payment hereunder) falls on a day which is not a business
day, such Payment Date (or other date of payment) shall be the next succeeding
business day.
2.4. Mandatory Repayment. The foregoing notwithstanding, beginning on and
after any date, from the date of this Loan Agreement to the termination of
Lender's Commitment, that Borrower receives third party financing, whether
equity or debt ("Financing"), in an amount in excess of One Million U.S. Dollars
($1,000,000) in the aggregate ("Financing Threshold"), Borrower shall repay,
fifty percent (50%) of each dollar received above the Financing Threshold from
such Financing, toward any and all amounts of principal and interest outstanding
under this Loan Agreement until such amounts have been fully repaid and further,
Lender's Commitment shall terminate and not be renewed. Solely by way of
example, in the event Borrower shall receive Financing in an aggregate amount of
$750,000 at any time during the first nine (9) months of this Agreement, and six
(6) months thereafter Borrower receives additional Financing in an amount
$500,000, Borrower shall repay to Lender, promptly following receipt of the
$500,000, the sum of $125,000 representing fifty percent (50%) of all Financing
received above the Financing Threshold, which amount shall be applied to all
interest accrued on the Loans and unpaid to that date plus, to the extent that
accrued unpaid interest constitutes less than $125,000, that amount of principal
outstanding representing the difference between the amount of accrued unpaid
interest and $125,000. Thereafter, fifty percent (50%) of every dollar of
additional Financing provided to Borrower shall be paid over to Lender, and no
more Loans shall be authorized, until the full amount of any and all unpaid
principal and interest on the Loans shall have been paid.
2.5. All payments to Lender shall be paid by Borrower to Lender at Lender's
address as follows: Imatron Inc., 000 Xxxxxx Xxxxx Xxxx., Xx. Xxx Xxxxxxxxx, XX
00000, Attn. President. All amounts paid shall be applied first, to the payment
of all interest accrued and payable with respect to the Note; and second, to the
payment of outstanding principal of the Loan; and third, following Default, to
the payment of all expenses and charges, including reasonable attorneys' fees,
included by Lender for the protection of its rights or the pursuance of its
remedies.
2.6. The Loans or any part thereof may be prepaid at any time without
penalty.
2.7. The interest and other charges charged with respect to the Loans shall
not exceed the highest rate permissible under any law which a court of competent
jurisdiction or an arbitrator or panel of arbitrators shall, in a final
determination, deem applicable to the Loans. As of the date of execution of this
Loan Agreement, the parties hereto, in good faith, agree that the total interest
and other charges payable by Borrower to Lender under the terms of this Loan
Agreement do not exceed the maximum legal interest rate applicable to the Loans.
If it is determined that Lender has received interest and other consideration
with respect to the Loans in excess of the highest rate applicable to the Loans,
Lender shall promptly refund not more than such excess amount to Borrower and
the provisions hereof shall be deemed amended to provide for such permissible
rate.
3. CONDITIONS OF LENDING.
The obligations of Lender to make a Loan is subject to the fulfillment of
the following conditions:
3.1. The following documents shall have been duly authorized, executed and
delivered by the Borrower to the Lender, and shall be in form and substance
satisfactory to the Lender and its counsel and shall be in full force and effect
on the date of the Loan.
Prior to the first Loan:
(a) an executed Loan Agreement, and all executed documents,
certificates and instruments contemplated by this Loan
Agreement, including but not limited to the Security
Agreement;
(b) a certified copy of the resolution of the Board of Directors
of Borrower, certified by the Secretary or a responsible
officer thereof, duly authorizing execution, delivery and
performance of this Loan Agreement and the Note contemplated
hereby;
(c) a certificate of recent date from the Secretary of State of
the state of incorporation of Borrower as to its good
standing;
(d) an incumbency certificate of Borrower dated as of the date of
funding, as to (i) the person or persons authorized to execute
and deliver this Loan Agreement, the Note, the Security
Agreement, and any other documents to be executed on behalf of
them in connection with the transactions contemplated hereby
and (ii) the signature of each person or persons;
(e) the executed Note;
(f) documentary evidence satisfactory to Lender that any and all
liens or other security interests on any of Borrower's
tangible or intangible property, including but not limited to
accounts, computer hardware and software, copyrights,
equipment, inventory, licenses, patents, trade secrets,
trademarks, general intangibles, chattel paper or other
property, and all proceeds thereof, shall have been
released or otherwise subordinated to Lender's security
interests contemplated herein, except as otherwise provided
by that certain agreement by and among ProFutures Bridge
Capital Fund, L.P., a Delaware limited partnership
("ProFutures"), Lender and Borrower, dated as of April 28,
1998 and attached hereto as Exhibit D, and except as provided
by that certain agreement by and among Uro-Tech, Ltd.,
Lender and Borrower, dated as of April 28, 1998 and attached
hereto as Exhibit E; and
(g) an expense plan and budget, including an acceptable cash
control system for managing expenditures within the plan and
budget, ("Expense Plan"), attached hereto as Schedule 3.1(g) ;
and
(h) documentary evidence satisfactory to Lender that any Letter of
Intent or contract arrangements of whatever nature between
Borrower and CTI PET Systems, Inc. have expired or otherwise
been terminated, and that there are no obligations of whatever
nature in effect between Borrower and CTI PET Systems, Inc.
For each Loan (including the first):
(i) an officer's certificate in the form of Exhibit B which shall
include the written request from Borrower setting forth the
requested amount of the Loan and the proposed date of
borrowing;
(j) for each Loan after the first Loan, documentary evidence
satisfactory to Lender, including but not limited to Exhibit
B, that Borrower is adhering strictly to the Expense Plan; and
(k) such other documents and evidence with respect to Borrower as
Lender may reasonably request.
3.2. On the date of each borrowing pursuant to Section 2.1 above, (i) no
Default or event that with the giving of notice or lapse of time or both would
constitute a Default hereunder has occurred and is continuing or would result
from the performance of this Loan Agreement, (ii) no material adverse change
shall have occurred since the date of this Loan Agreement in the financial
condition or operations of the Borrower, and (iii) there shall be no juridical
proceeding or regulatory action instituted by or against the Borrower, or, to
the best of Borrower's knowledge, any threatened proceeding or action which may
materially adversely affect the business, property, operation, or financial
condition of the Borrower. By acceptance of a Loan, Borrower represents as of
such Loan date, that each of the foregoing items is true. The foregoing
notwithstanding, Lender acknowledges that it has been advised of the status of
Borrower's lease for space located at 0000 Xxxxxxx Xxxxx Xxxxx, #000, Xxxxxxx,
Xxxxx 00000, as set forth on Schedule 4.5 herein, and that such status will not
be deemed a breach of this Section 3.2.
4. REPRESENTATIONS AND WARRANTIES.
4.1. Borrower is a corporation duly organized and validly existing
in good standing under the laws of the state
of Texas.
4.2. Borrower has full corporate power to own its properties, to carry on
its business as now being conducted and has full corporate power to execute,
deliver and perform all of its obligations under this Loan Agreement and the
Note.
4.3. The execution, delivery and performance by Borrower of this Loan
Agreement, the Note, the Security Agreement and all related documents
contemplated by this transaction have been duly authorized by all necessary
corporate action of Borrower and do not violate any provision of law, statute,
rule or regulation, applicable to Borrower, or any judgment, franchise, permit,
order, decree, ruling, writ or injunction of any court or administrative body,
applicable to Borrower, or of Borrower's certificate of incorporation, by-laws
or the terms of any of its securities or result in the breach of, or constitute
a Default under, or require any consent under, any indenture, bank loan, credit
agreement or other agreement or instrument to which Borrower is a party or by
which Borrower or any of its property may be bound or affected.
4.4. No filings, recordations, notifications, registrations, notarizations,
authentications or other formalities or property, stamp or similar taxes or
duties and no approvals, licenses, orders, authorizations, consents or
undertakings of any governmental bodies or regulatory, supervisory authorities
are necessary in connection with the execution, delivery and performance by
Borrower of this Loan Agreement or the Note, or for the payment to Lender of all
sums hereunder or under the Note or for the legality, validity, binding effect
or enforceability hereof or thereof.
4.5. Except as disclosed and described in Schedule 4.5 hereto, Borrower has
good and marketable title to, or a valid leasehold interest in, the tangible
personal property or other properties and assets used by it, located on its
premises, or shown on the most recent balance sheet, free and clear of all liens
or other security interests.
4.6. This Loan Agreement and the Note, have been duly executed and
delivered by Borrower and are legal, valid and binding obligations of Borrower,
enforceable in accordance with their respective terms, subject to (i) the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally, (ii) the
availability of the remedies of specific performance or injunctive relief as
subject to the discretion of the court before which a proceeding for such
remedies may be brought, and (iii) the exercise by any court before which any
proceeding may be brought of equitable judicial discretion.
4.7. Borrower has delivered to Lender its unaudited balance sheet of the
Borrower and the related statements of income, retained earnings and cash flow
of Borrower (collectively "Financial Statements") for the nine month period
ending September 30, 1997. Such balance sheet and statement fairly present the
financial condition of the Borrower as of such date and the results of the
operations of the Borrower for the period ended on such date, and such statement
has been prepared in accordance with generally accepted accounting principles
consistently applied, and contain any disclosure that would normally be required
by financial statements prepared in accordance with generally accepted
accounting principles. Since the end of the period reflected in such financial
statements there has been no material adverse change in such condition or
operations.
4.8. Except as disclosed and described on Schedule 4.8, Borrower has filed
all applicable tax returns required to be filed by it, and has paid or made
provisions for the payment of all taxes which have become due pursuant to said
returns or pursuant to any assessment received by Borrower except such taxes, if
any, as are being contested in good faith and as to which adequate reserves have
been provided in accordance with generally accepted accounting principles, and
warrants that such returns properly reflect the United States, state and local
income and tax liability of the Borrower for the period covered thereby.
4.9. Except as disclosed and fully described on Schedule 4.9, there is no
action, suit or proceeding pending or, to the knowledge of the Borrower
threatened, against the Borrower or any of its property before any court,
governmental department, administrative agency or instrumentality which, if such
action, suit or proceeding were adversely determined, would materially affect
the financial condition or the results of operations of the Borrower or its
business or the ability of the Borrower to perform its obligations hereunder.
4.10. Except as disclosed and described on Schedule 4.10 hereto, Borrower
is not in default on or has otherwise delayed or postponed payment of any
accounts payable or other liabilities in excess of $25,000 outside the ordinary
course of business.
4.11. Each Loan shall be fully applied by Borrower solely for its working
capital needs or for the purchase of equipment or leasehold improvements,
consistent with Schedule 3.1(g) and the Cash Control System, and for no other
purpose.
4.12. No broker or finder acting on behalf of Borrower brought about the
obtaining, making or closing of this Loan Agreement and Borrower has no
obligation to pay any finder's or brokerage fees in connection with the
transactions contemplated herein.
4.13. As of the date of execution of this Loan Agreement, the aggregate
interest and other charges payable by Borrower to Lender under the terms of this
Loan Agreement do not exceed the maximum legal interest rate applicable to the
Loans.
5. COVENANTS.
Borrower hereby covenants and agrees that until satisfaction of all its
obligations, it shall:
5.1. Preserve and maintain its corporate existence and all of its rights,
privileges and franchises, and continue the conduct of its present business in
an orderly, efficient and regular manner; comply in all material respects with
all applicable laws, rules, regulations and orders of any governmental
authority, non-compliance with which would materially affect the ability of
Borrower to perform its obligations.
5.2. Make payments or commitments for payments only in strict compliance
with the Expense Plan and Cash Control System, or otherwise as authorized by
Lender.
5.3. Furnish Lender promptly with any financial information or statements,
and other current information regarding or relating to Borrower, as reasonably
requested by Lender, other than information relating to Borrower's proprietary
know-how and technology information.
5.4. Timely file any and all tax returns and tax filings required under any
governmental statute or regulation and timely pay and discharge, when due, all
tax obligations, and material obligations to third parties, except those
obligations being contested in good faith, and for which Borrower shall have
maintained, in accordance with generally accepted accounting principles,
adequate reserves for the payment of the same.
5.5. Notify Lender immediately upon receipt of notice of any lien,
attachment, administrative or judicial proceeding, pending or threatened claim,
dispute, litigation or governmental proceedings, material to the financial
condition or operations of Borrower, which for this purpose shall be any amount
in excess of $ 10,000; provide immediate written notice to Lender of any Default
or event which with the lapse of time or giving of notice or both would
constitute a Default.
5.6. Promptly and duly execute and deliver to Lender such further
documents, instruments and assurances and take such further action as Lender may
from time to time reasonably request in order to carry out the intent and
purpose of this Loan Agreement and to establish and protect the rights and
remedies created or intended to be created in favor of Lender hereunder.
5.7. Reimburse Borrower for its costs and reasonable attorneys' fees
incurred in enforcing its rights pursuant to the provisions of this Agreement.
6. DEFAULTS AND REMEDIES.
6.1. Any of the following shall constitute a default by Borrower hereunder
("Default"): (a) failure by Borrower to pay any amounts hereunder or under any
Note when due and such remains unremedied for a period of fifteen (15) days from
the due date; or (b) failure of Borrower to comply with any provisions or
perform any of its obligations arising under this Loan Agreement (other than
those referred to in clause (a) above), or if, but only if, such failure to
comply is remediable, it remains unremedied by Borrower for a period of ten (10)
days from notice to Borrower; or (c) any representations or warranties made or
given by Borrower in connection with this Loan Agreement were false or
misleading when made, in any material way; or (d) subjection of any of the
assets in an amount in excess of $10,000.00 of Borrower to attachment, levy,
execution, forfeiture or cancellation or other administrative or judicial
process which is not or cannot be removed with reasonable diligence within sixty
(60) days from the subjection thereof, or (e) commencement of any insolvency,
bankruptcy or similar proceedings, by or against Borrower, including any
assignment by Borrower for the benefit of creditors, and in the case of any
involuntary proceedings, such is not dismissed within ninety (90) days of
institution; or the inability of Borrower to pay its debts as they become due;
or (f) the liquidation or dissolution of Borrower or the commencement of any
acts relative thereto, or without the prior written consent of Lender, any sale
or other disposition of all or substantially all of the assets of Borrower, or
any merger or consolidation of Borrower, or the cessation of business by
Borrower; or (g) a default by Borrower under any agreement for borrowed money or
under any lease, except with regard to the lease of premises located at 00000
Xxxx Xxx Xxxxx, Xxxxxxx, Xxxxx 00000, whereby the holder of the obligation has
accelerated it prior to its stated maturity and such accelerated amount exceeds
$100,000.00, except as otherwise disclosed on Schedule 4.10; or (h) there shall
be a money judgment, in excess of $25,000.00 entered against Borrower which is
not fully covered by insurance or remains unvacated, unbonded, unstayed or
undischarged for more than sixty (60) days.
6.2. Upon any default, Lender, upon written notice to Borrower, may
exercise any one or more of the following remedies (which remedies shall be
cumulative to the extent permitted by law): (a) terminate any further obligation
of Lender hereunder (including any obligation to make further loans); (b)
declare the remaining unpaid principal balances of the Note, plus all accrued
but unpaid interest thereon, plus all other amounts due from Borrower hereunder,
immediately due and payable in full without notice or demand, whereupon such
shall become due and payable; (c) exercise any other right or remedy which may
be available to it under applicable law; or (d) require the Borrower to purchase
from Lender, and Borrower shall have the obligation to purchase from Lender
("Put") any, or all, or less than all, of any shares of common stock issued by
Borrower and owned by Lender at the price of $ 0.01 per share. Upon a default
any proceeds received from Borrower shall be applied by Lender to the
obligations, in the order of application as Lender shall elect.
7. NOTICES; CHANGES.
Notices, requests or other communications required hereunder to be sent to
either party shall be in writing and shall be by: (a) United States first class
mail, postage prepaid, and addressed to the other party at the address set forth
above (or to such other address as such party shall have designated by proper
notice), effective five days after deposit; (b) by personal or overnight
delivery, effective upon receipt.
8. GOVERNING LAW.
This Loan Agreement shall be governed and construed in accordance with the
laws of the State of California without giving effect to the principles of
conflict of laws thereof.
9. DISPUTE RESOLUTION.
9.1. Any controversy or claim between or among the parties arising out of
or relating to this Loan Agreement or any related agreements or instruments
("Subject Documents"), including any claim based on or arising from an alleged
tort, shall be submitted to and determined by arbitration before one (1)
arbitrator who shall be an attorney admitted to practice law in the state of
California, in accordance with Title 9 of the U.S. Code and the Commercial
Arbitration Rules of the American Arbitration Association ("AAA") then in
effect, and shall be held in the county of San Francisco, CA. All statutes of
limitations which would otherwise be applicable shall apply to any arbitration
proceeding under this subparagraph 9.1. Judgment upon the award rendered may be
entered in any court having jurisdiction. This subparagraph 9.1 shall apply only
if, at the time of the proposed submission to AAA, none of the obligations to
Lender described in or covered by any of the Subject Documents are secured by
real property collateral or, if so secured, all parties consent to such
submission.
9.2. If the controversy or claim is not submitted to arbitration as
provided and limited in Section 9.1, but becomes the subject of a judicial
action, any party may elect to have all decisions of fact and law determined by
a referee in accordance with applicable state law. If such an election is made,
the parties shall designate to the court a referee or referees selected under
the auspices of the AAA in the same manner as arbitrators are selected in
AAA-sponsored proceedings. The referee, or presiding referee of the panel, shall
be an active attorney or retired judge. Judgment upon the award rendered shall
be entered in the court in which such proceeding was commenced.
9.3. Except as provided herein, no provision of, or the exercise of any
rights under, Section 9.1, shall limit the right of any party to exercise self
help remedies such as setoff, or to obtain provisional or ancillary remedies
such as injunctive relief or the appointment of a receiver from a court having
jurisdiction before, during or after the pendency of any arbitration. The
institution and maintenance of an action for judicial relief or pursuit of
provisional or ancillary remedies or exercise of self help remedies shall not
constitute a waiver of the right of any party, including the plaintiff, to
submit the controversy or claim to arbitrators.
9.4. The parties understand and agree the arbitration will be their
exclusive form of resolving disputes between them regarding the issues covered
by this Agreement. BOTH PARTIES EXPRESSLY WAIVE THEIR ENTITLEMENT, IF ANY, TO
HAVE CONTROVERSIES BETWEEN THEM DECIDED BY A JURY OR COURT OF LAW.
10. MISCELLANEOUS.
This Loan Agreement or any part hereof, may not be assigned by Borrower
without the written consent of Lender and shall be binding upon and inure to the
benefit of the parties hereto, their legal representatives, permitted successors
and assigns. This Loan Agreement and/or the note or any part thereof may be
assigned by Lender without the consent of Borrower. No amendment hereunder shall
be effective unless in writing signed by the parties hereto and no waiver
hereunder shall be effective unless in writing, signed by the party to be
charged. No failure to exercise, no delay in exercising, and no single or
partial exercise on the part of Lender of any right, remedy, or power hereunder,
shall operate as a waiver thereof or preclude Lender from exercising any other
right, remedy or power hereunder. Any provision of this Loan Agreement or the
Note which is unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability, without
invalidating the remaining provisions hereof or of the note. The
representations, warranties, obligations and indemnities of Borrower herein
shall survive the termination of this Loan Agreement to the extent required for
their full observance and performance. The obligation of each comaker (if any)
of this Loan Agreement or the Note shall be primary, joint and several and each
such comaker hereby irrevocably consents to any extension of time of payments
and/or the execution of any refinancing or restructuring agreements relative to
this Loan Agreement or the Note. In the event Borrower fails to meet any
obligation of it hereunder, Lender may at its option satisfy such obligation and
Borrower shall reimburse Lender on demand therefor. The captions in this Loan
Agreement are for convenience only and shall not define or limit any of the
terms hereof. This Loan Agreement may be executed in counterparts and all said
counterparts taken together shall be deemed to constitute one and the same
instrument.
THIS LOAN IS SECURED BY THE TERMS OF THAT CERTAIN SECURITY AGREEMENT OF
EVEN DATE BY AND BETWEEN BORROWER AND LENDER HEREUNDER, ATTACHED HERETO AS
EXHIBIT C.
IN WITNESS WHEREOF, the parties hereto have duly executed this Loan
Agreement as of the date first above written. Borrower acknowledges that this
Loan Agreement shall not be effective until accepted by Lender at its address
above.
LENDER: BORROWER:
IMATRON INC. POSITRON CORPORATION
By: /s/ S. Xxxxx Xxxxx By: /s/ Xxxx X. Xxxx
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Its: President/CEO Its: Chief Executive Officer
----------------------------- ---------------------------------
Attest: Attest:
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
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Its: CFO Its: Executive Vice President
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