Exhibit 10.24
LOAN AND SECURITY AGREEMENT
Stereotaxis, Inc.
September 30, 2002
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TABLE OF CONTENTS
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l ACCOUNTING AND OTHER TERMS ......................................................................3
2 LOAN AND TERMS OF PAYMENT .......................................................................3
2.1 Credit Extensions...........................................................................3
2.1.1 Equipment Loan............................................................................3
2.2 Interest Rate: Payments.....................................................................4
2.3 Agreements Regarding Interest and Other Charges.............................................4
2.4 Fees .......................................................................................5
2.5 Additional Costs............................................................................5
3 CONDITIONS OF LOAN...............................................................................5
3.1 Conditions Precedent to Initial Credit Extension............................................5
3.2 Reserved....................................................................................5
4 CREATION OF SECURITY INTEREST....................................................................5
4.1 Grant of Security Interest..................................................................5
4.2 Reserved....................................................................................6
5 REPRESENTATIONS AND WARRANTIES...................................................................6
5.1 Due Organization and Authorization..........................................................6
5.2 Collateral..................................................................................6
5.3 Litigation..................................................................................6
5.4 No Material Adverse Change in Financial Statements..........................................6
5.5 Solvency....................................................................................6
5.6 Regulatory Compliance.......................................................................7
5.7 Subsidiaries................................................................................7
5.8 Full Disclosure.............................................................................7
6 AFFIRMATIVE COVENANTS ...........................................................................7
6.1 Government Compliance ......................................................................7
6.2 Financial Statements, Reports, Certificates ................................................7
6.3 Inventory; Returns..........................................................................8
6.4 Taxes.......................................................................................8
6.5 Insurance...................................................................................8
6.6 Bank Accounts...............................................................................9
6.7 Further Assurances..........................................................................9
6.8 Financial Covenants.........................................................................9
6.9 Expense Tracking............................................................................9
6.10 Revenue Tracking...........................................................................9
6.11 Equity Financing/IPO.......................................................................9
7 NEGATIVE COVENANTS ..............................................................................9
7.1 Dispositions................................................................................9
7.2 Changes in Business, Ownership, Management or Business Locations............................9
7.3 Negative Pledge ...........................................................................10
7.4 Mergers or Acquisitions....................................................................10
7.5 Indebtedness...............................................................................l0
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7.6 Encumbrance................................................................................10
7.7 Investments, Distributions.................................................................10
7.8 Transactions with Affiliates...............................................................10
7.9 Subordinated Debt..........................................................................10
7.10 Compliance ...............................................................................10
8 EVENTS OF DEFAULT ..............................................................................11
8.1 Payment Default............................................................................11
8.2 Covenant Default ..........................................................................11
8.3 Material Adverse Change....................................................................11
8.4 Attachment.................................................................................11
8.5 Insolvency.................................................................................11
8.6 Other Agreements...........................................................................12
8.7 Judgments..................................................................................12
8.8 Misrepresentations ........................................................................12
9 BANK'S RIGHTS AND REMEDIES .....................................................................12
9.1 Rights and Remedies........................................................................12
9.2 Power of Attorney..........................................................................13
9.3 Accounts Collection........................................................................13
9.4 Bank Expenses..............................................................................13
9.5 Bank's Liability for Collateral............................................................13
9.6 Remedies Cumulative........................................................................13
9.7 Demand Waiver .............................................................................14
10 NOTICES .......................................................................................14
11 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER ....................................................14
12 GENERAL PROVISIONS ............................................................................14
12.1 Successors and Assigns....................................................................14
12.2 Indemnification...........................................................................14
12.3 Time of Essence...........................................................................15
12.4 Severability of Provision.................................................................15
12.5 Amendments in Writing, Integration........................................................15
12.6 Counterparts..............................................................................15
12.7 Survival..................................................................................15
12.8 Confidentiality ..........................................................................15
12.9 Attorneys' Fees, Costs and Expenses ......................................................15
13 DEFINITIONS ...................................................................................16
13.1 Definitions...............................................................................16
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Interest accrues at the rate in Section 2.2(a). The Equipment Loan when
repaid may not be reborrowed.
(c) To obtain the Equipment Advance, Borrower must deliver to Bank the
Payment/Advance Form attached as Exhibit B which must be signed by a Responsible
Officer and include a copy of the invoices for the Eligible Equipment being
financed. Bank shall credit the Equipment Advance to Borrower's deposit account.
Borrower can transfer the Equipment Advance from Borrower's account on the date
the Bank makes the Equipment Advance, if the transfer is within regular business
hours of the Bank. Bank may make the Equipment Advance under this Agreement
based on instructions from a Responsible Officer or his or her designee. Bank
may rely on any telephone notice given by a person whom Bank believes is a
Responsible Officer or designee.
2.2 INTEREST RATE: PAYMENTS.
(a) Interest Rate. The Equipment Loan accrues interest on the outstanding
principal balance at the rate of 10 per cent per annum. After an Event of
Default, Obligations accrue interest at 5 percent above the rate effective
immediately before the Event of Default. Interest is computed on a 360-day year
for the actual number of days elapsed.
(b) Payments. Interest and principal on the Equipment Loan is payable on
the first day of each month following the Advance under the Equipment Loan. Bank
may debit any of Borrower's deposit accounts including Account Number 501569370
for principal and interest payments or any other amounts that Borrower owes Bank
under this Agreement if the same are not paid within fifteen days of the date
when due. Bank will notify Borrower when it debits Borrower's accounts. These
debits are not a set-off. Payments received after 12:00 noon Pacific time, are
considered received at the opening of business on the next Business Day. When a
payment is due on a day that is not a Business Day, the payment is due the next
Business Day.
(c) Pre-Payments. Borrower shall be allowed to prepay the Equipment Loan
without premium or penalty, except with respect to the Final Payment, described
in Section 2.2(d) below.
(d) Final Payment. On the date of the final Equipment Loan Payment, or upon
prepayment of the Equipment Loan in full, Borrower will pay, in addition to the
unpaid principal and accrued interest and all other amounts due on such date
with respect to the Equipment Loan, an amount equal to the Final Payment.
2.3 AGREEMENTS REGARDING INTEREST AND OTHER CHARGES.
Borrower and the Bank agree that the only charges imposed or to be imposed
by Bank upon Borrower for the use of money in connection with the Obligations is
and will be the interest required to be paid under the provisions of this
Agreement as well as the related provisions of the Loan Documents, the amount of
interest due and payable under this Agreement or the Loan Documents will not
exceed the maximum rate of interest allowed by applicable law and, if any
payment is made by Borrower or received by Bank in excess of such payment, such
sum shall be credited as a payment of principal. It is the express intent that
Borrower not pay and the Bank
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not receive, directly or indirectly or in any manner, interest in excess of that
which may be lawfully paid under applicable law. All interest and other charges,
fees or other amounts deemed to be interest which are paid or agreed to be paid
to Bank under this Agreement or the Loan Documents shall, to the maximum extent
permitted by applicable law, be amortized, allocated and spread on a pro-rata
basis throughout the entire actual term of the Obligations. Any and all fees
payable under this Agreement are not intended, and will not be deemed to be
interest or a charge for use of money, but rather will constitute an "other
charge."
2.4 FEES. Borrower will pay to Bank:
(a) Facility Fee. A facility fee of $5,000 for the Equipment Loan shall be
paid upon execution of this Agreement; and
(b) Bank Expenses. All Bank Expenses incurred through and after the date of
this Agreement, are payable when due.
2.5 ADDITIONAL COSTS. If, after the date hereof, any new law or regulation
increases Bank's costs or reduces its income for any loan to a level that would
have been achieved but for such new regulation or law, Borrower will pay the
increase in cost or reduction in income or additional expense; provided,
however, that Borrower shall not be liable for any amount attributable to any
period before 180 days prior to the date Bank notifies Borrower of such
increased costs. Bank agrees that it will allocate any increased costs among its
customers similarly affected in good faith and in a manner consistent with
Bank's customary practice.
3 CONDITIONS OF LOAN
3.1 CONDITIONS PRECEDENT TO INITIAL CREDIT EXTENSION. Bank's obligation to make
the initial Credit Extension is subject to the conditions precedent that the
Borrower executes, and the Bank receives (i) a fully executed copy of this
Agreement; (ii) a fully executed copy of the Warrant Agreement, attached hereto
as Exhibit D; (iii) all executed financing statements, termination statements,
and subordination agreements which the Bank requires; (iv) corporate resolutions
authorizing Borrower to enter into the Agreement; (v) the opinion of Borrower's
counsel in a form acceptable to the Bank; (vi) timely receipt of Payment/Advance
Form attached hereto as Exhibit B; and (vii) the representations and warranties
in Section 5 must be materially true on the date of the Payment/Advance Form.
Bank shall have received from Borrower revised balance sheet projections
reclassifying equipment from research and development expenses to capitalized
fixed assets.
3.2 RESERVED.
4 CREATION OF SECURITY INTEREST
4.1 GRANT OF SECURITY INTEREST. Borrower grants Bank a continuing security
interest in all presently existing and later acquired Collateral, and the
proceeds of all Collateral, to secure all Obligations and performance of each of
Borrower's duties under the Loan Documents. Except for Permitted Liens, any
security interest will be a first priority security interest in the Collateral.
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Bank may place a "hold" on any deposit account pledged as Collateral. If the
Agreement is terminated, Bank's lien and security interest in the Collateral
will continue until Borrower fully satisfies its Obligations.
4.2 RESERVED.
5 REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
5.1 DUE ORGANIZATION AND AUTHORIZATION. Borrower is duly existing under the laws
of the state of Delaware and qualified and licensed to do business in, and in
good standing in, any state in which the conduct of its business or its
ownership of property requires that it be qualified, except where the failure to
do so could not reasonably be expected to cause a Material Adverse Change.
The execution, delivery and performance of the Loan Documents have been
duly authorized, and do not conflict with any of Borrower's formation documents,
nor constitute an event of default under any material agreement by which
Borrower is bound. Borrower is not in default under any agreement to which or by
which it is bound in which the default could cause a Material Adverse Change.
5.2 COLLATERAL, Borrower has good title to the Collateral, free of Liens except
Permitted Liens. All inventory is in all material respects of good and
marketable quality, free from material defects except for work in process and
inventory, which due to manufacturing yield issues, may not be free from defect.
Borrower is the sole owner of, or has adequate license rights in, the
Intellectual Property, except for non-exclusive licenses granted to its
customers in the ordinary course of business. No patent has been judged invalid
or unenforceable, in whole or in part, and no claim has been made that any
patent violates the rights of any third party, except to the extent such
invalidity, unenforceability or claim could not reasonably be expected to cause
a Material Adverse Change.
5.3 LITIGATION: Except as identified in Schedule 1, there are no actions or
proceedings pending or, to Borrower's knowledge, threatened by or against
Borrower in which an adverse decision that could cause a Material Adverse Change
is reasonably likely.
5.4 NO MATERIAL ADVERSE CHANGE IN FINANCIAL STATEMENTS. All historical
consolidated financial statements for Borrower, and any Subsidiary, delivered to
Bank fairly present, at the time the statements were created, in all material
respects Borrower's consolidated financial condition and Borrower's consolidated
results of operations as of the date thereof. There has not been any material
deterioration in Borrower's consolidated financial condition since the date of
the most recent financial statements submitted to Bank.
5.5 SOLVENCY. The fair salable value of Borrower's assets (including goodwill
minus disposition costs) exceeds the fair value of its liabilities; the Borrower
is not left with
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unreasonably small capital after the transactions in this Agreement; and
Borrower is able to pay its debts (including trade debts) as they mature.
5.6 REGULATORY COMPLIANCE. Borrower is not a registered investment company, or
required to register as an investment company, or a company controlled by a
registered investment company under the Investment Company Act. Borrower is not
engaged as one of its important activities in extending credit for margin stock
(under Regulations T and U of the Federal Reserve Board of Governors). Borrower
has complied with the Federal Fair Labor Standards Act. Borrower has not
violated any laws, ordinances or rules, the violation of which could cause a
Material Adverse Change. None of Borrower's or any Subsidiary's properties or
assets has been used by Borrower or any Subsidiary or, to the best of Borrower's
knowledge, by previous Persons, in disposing, producing, storing, treating, or
transporting any hazardous substance. Borrower and each Subsidiary has timely
filed all required tax returns and paid, or made adequate provision to pay, all
taxes, except those being contested in good faith. Borrower and each Subsidiary
has obtained all consents, approvals and authorizations of, made all
declarations or filings with, and given all notices to, all government
authorities that are necessary to continue its business as currently conducted.
5.7 SUBSIDIARIES. Borrower does not own any stock, partnership interest or other
equity securities except for Permitted Investments.
5.8 FULL DISCLOSURE. No representation, warranty or other statement of Borrower
in any certificate or written statement given to Bank contains any untrue
statement of a material fact or omits to state a material fact necessary to
make the statements contained in the certificates or statements not misleading
in any material respect.
6 AFFIRMATIVE COVENANTS
Borrower will do all of the following:
6.1 GOVERNMENT COMPLIANCE. Borrower shall maintain its and all Subsidiaries'
legal existence and good standing in its jurisdiction of formation and maintain
qualification in each jurisdiction in which the failure to so qualify is
reasonably likely to have a material adverse effect on Borrower's business or
operations. Borrower shall comply, and have each Subsidiary comply, with all
laws, ordinances and regulations to which it is subject, noncompliance with
which is reasonably likely to have a material adverse effect on Borrower's
business or operations or cause a Material Adverse Change.
6.2 FINANCIAL STATEMENTS, REPORTS, CERTIFICATES.
(a) Borrower shall deliver to Bank: (i) as soon as available, but no later
than 30 days after the last day of each month, a company prepared consolidated
balance sheet and income statement covering Borrower's consolidated operations
during the period, in a form reasonably acceptable to Bank and certified by a
Responsible Officer; (ii) as soon as available, but no later than 120 days after
the last day of Borrower's fiscal year, audited consolidated financial
statements prepared under GAAP, consistently applied, together with an
unqualified opinion on
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the financial statements from an independent certified public accounting firm
reasonably acceptable to Bank; (iii) within 5 days of filing, copies of all
statements, reports and notices filed or made available to any government agency
or to any holders of Subordinated Debt; (iv) a prompt report of any legal
actions pending or threatened against Borrower or any Subsidiary that could
result in damages or costs to Borrower or any Subsidiary of $150,000 or more;
(v) prompt notice of any material change in the composition of the Intellectual
Property, including any subsequent ownership right of Borrower in or to any
Copyright, Patent or Trademark not shown in any intellectual property security
agreement between Borrower and Bank or knowledge of an event that materially
adversely affects the value of the Intellectual Property; and (vi) an annual
budget approved by the Board and will provide as soon as available, but no later
than 30 days after requested, sales projections, operating plans or other
financial information requested by the Bank, which request, absent an Event of
Default, shall not occur more than once per calendar year.
(b) Within 30 days after the last day of each month, Borrower will deliver
to Bank with the monthly financial statements a Compliance Certificate signed by
a Responsible Officer in the form of Exhibit C.
(c) Bank has the right to audit the Collateral once per calendar year
absent an Event of Default, and to require certification of the existence of the
Collateral, once per calendar year absent an Event of Default, at Borrower's
expense.
6.3 INVENTORY; RETURNS. Borrower will keep all Inventory in good and marketable
condition, free from material defects. Returns and allowances between Borrower
and its account debtors will follow Borrower's practices as they exist at
execution of the Agreement. Borrower must promptly notify Bank of all returns,
recoveries, disputes and claims that involve more than $50,000 in any one
instance.
6.4 TAXES. Except for taxes being contested in good faith and for which Borrower
has made appropriate reserves, Borrower shall make timely payment of all
material federal, state, and local taxes or assessments and will deliver to
Bank, on demand, appropriate certificates attesting to the payment.
6.5 INSURANCE. Borrower will keep its business and the Collateral insured for
risks and in amounts, as is typical in Borrower's business. Insurance policies
will be in a form, with companies, and in amounts that are satisfactory to Bank
in Bank's reasonable discretion. All property policies will have a lender's loss
payable endorsement showing Bank as an additional loss payee and all liability
policies will show the Bank as an additional insured and provide that the
insurer must give Bank at least 20 days notice before canceling its policy. At
Bank's request, Borrower will deliver certified copies of policies and evidence
of all premium payments. So long as no Event of Default has occurred and is
continuing, Borrower shall have the option of applying the proceeds of any
casualty policy to the replacement or repair of destroyed or damaged property;
provided that, after the occurrence and during the continuance of an Event of
Default, all proceeds payable under any such casualty policy shall, at the
option of Bank, be payable to Bank on account of the Obligations.
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6.6 BANK ACCOUNTS. Borrower shall maintain with the Bank (i) its primary
operating account (the "SVB Account"); and (ii) the majority of all excess cash
and investment balances, which the Borrower has the sole right to direct the
Bank as to how the monies are to be invested; provided, however, that the
Borrower shall not be required to terminate any existing fixed maturity
instrument with a third party to comply with this requirement. Borrower's
investment control includes, but is not limited to, the type of instrument
(commercial paper), amount and timing. The Bank agrees that any management or
transaction fees will be comparable to those which it charges to other companies
to which it provides similar services.
6.7 FURTHER ASSURANCES. Borrower shall execute any further instruments and take
further action as Bank reasonably requests to perfect or continue Bank's
security interest in the Collateral or to effect the purposes of this Agreement.
6.8 FINANCIAL COVENANTS.
Remaining Months Liquidity. Borrower will maintain, as of the last day of
each month, at least three (3) months Remaining Months Liquidity. Remaining
Months Liquidity ("RML") is cash on hand (and cash equivalents) maintained at
Bank, divided by EBITDA.
6.9 EXPENSE TRACKING. Borrower shall maintain monthly operating expenses within
25% of the operating budget approved by the Borrower's Board of Directors and
reviewed by Bank.
6.10 REVENUE TRACKING. Beginning January 1, 2003, and for each month thereafter,
Borrower shall maintain monthly revenues within 25% of the operating budget
approved by the Board of Directors of Borrower and accepted by Bank, which
acceptance shall not be unreasonably withheld.
6.11 EQUITY FINANCING/IPO. Borrower shall either (a) have received a hard
circled term sheet for new equity financing for the greater of $15 million or 12
months of RML by December 2, 2002, which equity financing must close on or
before January 2, 2003; or (b) Borrower shall have completed an initial public
offering on or before January 1, 2003.
7 NEGATIVE COVENANTS
Borrower shall not do any of the following:
7.1 DISPOSITIONS. Without Bank's prior written consent, which consent may
be granted or withheld in Bank's sole reasonable discretion, convey, sell,
lease, transfer or otherwise dispose of (collectively "Transfer") all or any
part of its business or property, other than Transfers (i) of Inventory in the
ordinary course of business; (ii) of non-exclusive licenses and similar
arrangements for the use of the property of Borrower or its Subsidiaries in the
ordinary course of business; or (iii) of worn-out or obsolete Equipment.
7.2 CHANGES IN BUSINESS, OWNERSHIP, MANAGEMENT OR BUSINESS LOCATIONS.
Engage in any business other than the businesses currently engaged in by
Borrower, or have a material change in its management or ownership, other
than the sale of Borrower's equity securities in a public
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offering or to venture capital investors approved by Bank, which approval shall
not be unreasonably withheld. Borrower will not, without at least 30 days prior
written notice to Bank, relocate its principal executive office, add any new
offices or business locations, or change its state of incorporation.
7.3 NEGATIVE PLEDGE. Except as set forth in Section 7.1, sell, transfer, assign,
mortgage, pledge, lease, grant a security interest in, release, disburse, or
encumber any of Borrower's property, except to Bank and except for Permitted
Liens, including but not limited to any securities, securities entitlements,
securities accounts, investment property, financial assets, instruments, chattel
paper, contract rights, Inventory, Equipment, accounts receivable, licenses,
Intellectual Property, including proceeds, distributions from sale, exchange or
liquidation of same, now owned or hereafter acquired, except for such sales,
transfers, and pledges made by Borrower in the ordinary course of Borrower's
business or with Bank's prior written consent.
7.4 MERGERS OR ACQUISITIONS. Without Bank's consent (which shall not be
unreasonably withheld), merge or consolidate, or permit any of its
Subsidiaries to merge or consolidate, with any other Person, or acquire, or
permit any of its Subsidiaries to acquire, all or substantially all of the
capital stock or property of another Person. A Subsidiary may merge or
consolidate into another Subsidiary or into Borrower.
7.5 INDEBTEDNESS. Create, incur, assume, or be liable for any indebtedness,
other than Permitted Indebtedness.
7.6 ENCUMBRANCE. Create, incur, or allow any Lien on any of its property, or
assign or convey any right to receive income, except for Permitted Liens, or
permit any Collateral not to be subject to Bank's first priority security
interest granted herein.
7.7 INVESTMENTS, DISTRIBUTIONS. Directly or indirectly acquire or own any
Person, or make any Investment, other than Permitted Investments, or permit any
of its Subsidiaries to do so. Pay any dividends or make any distribution or
payment (whether by cash or securities) or redeem, retire or purchase any
capital stock except pursuant to employee stock repurchase agreements.
7.8 TRANSACTIONS WITH AFFILIATES. Directly or indirectly enter into or permit
any material transaction with any Affiliate without Bank's prior consent which
consent shall not be unreasonably withheld, except transactions that are in the
ordinary course of Borrower's business, on terms less favorable to Borrower than
would be obtained in an arm's length transaction with a non-affiliated Person.
7.9 SUBORDINATED DEBT. Make or permit any payment on any Subordinated Debt,
except under the terms of the Subordinated Debt, or amend any provision in any
document relating to the Subordinated Debt, without Bank's prior written
consent, which consent shall not be unreasonably withheld.
7.10 COMPLIANCE. Become a registered investment company or be required to
register as an investment company or a company controlled by a registered
investment company under the Investment Company Act of 1940, or undertake as one
of its important activities extending credit
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to purchase or carry margin stock, or use the proceeds of any Advance for that
purpose; fail to meet the minimum funding requirements of ERISA, permit a
Reportable Event or Prohibited Transaction, as defined in ERISA, to occur if the
violation would cause a Material Adverse Change; fail to comply with the Federal
Fair Labor Standards Act or violate any other law or regulation, if the
violation could have a material adverse effect on Borrower's business or
operations or cause a Material Adverse Change.
8 EVENTS OF DEFAULT
Any one of the following is an Event of Default:
8.1 PAYMENT DEFAULT. Borrower fails to pay any of the Obligations within 3
days after their due date. During the additional period the failure to cure the
default is not an Event of Default, but no Credit Extensions shall be made
during the cure period;
8.2 COVENANT DEFAULT. Borrower does not perform any obligation in Article 6
or violates any covenant in Article 7 or does not perform or observe any other
material term, condition or covenant in this Agreement, any Loan Documents, or
in any other material agreement between Borrower and Bank and as to any default
under a term, condition or covenant that can be cured, has not cured the default
within 10 days after it occurs, or if the default cannot be cured within 10 days
or cannot be cured after Borrower's attempts in the 10 day period, and the
default may be cured within a reasonable time, then Borrower has an additional
time (of not more than 30 days) to attempt to cure the default. During the
additional period the failure to cure the default is not an Event of Default,
but no Credit Extensions shall be made during the cure period;
8.3 MATERIAL ADVERSE CHANGE. If there (i) occurs a material adverse change
in the business, operations, or condition (financial or otherwise) of the
Borrower; or (ii) is a material impairment of the prospect of repayment of any
portion of the Obligations; or (iii) is a material impairment of the value or
priority of Bank's security interests in a material portion of the Collateral;
8.4 ATTACHMENT. (i) Any material portion of Borrower's assets is attached,
seized, levied on, or comes into possession of a trustee or receiver and the
attachment, seizure or levy is not removed in 10 days; (ii) Borrower is
enjoined, restrained, or prevented by court order from conducting a material
part of its business; (iii) a judgment or other claim becomes a Lien on a
material portion of Borrower's assets and the same is not satisfied or
discharged within thirty (30) days; or (iv) a notice of lien, levy, or
assessment is filed against any of Borrower's assets by any government agency
and not paid within 30 days after Borrower receives notice, or the same are not
being contested in good faith. These are not Events of Default if stayed or if a
bond is posted pending contest by Borrower, but no Credit Extensions shall be
made during the cure period;
8.5 INSOLVENCY. (i) Borrower becomes insolvent; (ii) Borrower begins an
Insolvency Proceeding; or (iii) an Insolvency Proceeding is begun against
Borrower and not dismissed or stayed within 30 days, but no Credit Extensions
shall be made before any Insolvency Proceeding is dismissed;
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8.6 OTHER AGREEMENTS. There exists a default in any agreement between
Borrower and a third party that gives the third party the right to accelerate
any Indebtedness exceeding $200,000.00 or that is reasonably likely to cause a
Material Adverse Change;
8.7 JUDGMENTS. A money judgment or judgments in the aggregate of at least
$200,000.00 and that could cause a Material Adverse Change are rendered against
Borrower and are unsatisfied and unstayed for 30 days, but no Credit Extensions
shall be made before the judgment is stayed or satisfied.
8.8 MISREPRESENTATIONS. Borrower or any Person acting for Borrower makes
any material misrepresentation or material misstatement now or later in any
warranty or representation in this Agreement or in any communication delivered
to Bank or to induce Bank to enter this Agreement or any Loan Document.
9 BANK'S RIGHTS AND REMEDIES
9.1 RIGHTS AND REMEDIES. When an Event of Default occurs and continues Bank
may, without notice or demand, do any or all of the following:
(a) Declare all Obligations immediately due and payable (but if an Event of
Default described in Section 8.5 occurs all Obligations are immediately due and
payable without any action by Bank);
(b) Stop advancing money or extending credit for Borrower's benefit under
this Agreement or under any other agreement between Borrower and Bank;
(c) Settle or adjust disputes and claims directly with account debtors for
amounts, on terms and in any order that Bank considers advisable;
(d) Make any payments and do any acts it considers necessary or reasonable
to protect its security interest in the Collateral. Borrower will assemble the
Collateral if Bank requests and make it available as Bank designates. Bank may
enter premises where the Collateral is located, take and maintain possession of
any part of the Collateral, and pay, purchase, contest, or compromise any Lien
which appears to be prior or superior to its security interest and pay all
expenses incurred. Borrower grants Bank a license to enter and occupy any of
its premises, without charge, to exercise any of Bank's rights or remedies; Not
withstanding anything set forth herein to the contrary, Bank shall pay all
expenses incurred for damage caused by Bank or any of its agents to any of its
premises which are outside of ordinary wear and tear;
(e) Apply to the Obligations any (i) balances and deposits of Borrower, or
(ii) any amount held by Bank owing to or for the credit or the account of
Borrower;
(f) Ship, reclaim, recover, store, finish, maintain, repair, prepare for
sale, advertise for sale, and sell the Collateral; and
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(g) Exercise all rights and remedies accorded to the Bank under the Uniform
Commercial Code;
provided, however, that nothing in this Section 9.1 shall give the Bank any
right in any Collateral beyond the ownership rights possessed by the Borrower or
the right to take any action on behalf of the Borrower in breach of the
Borrower's obligations to third parties.
9.2 POWER OF ATTORNEY. When an Event of Default occurs and continues, Borrower
irrevocably appoints Bank as its lawful attorney to: (i) endorse Borrower's name
on any checks or other forms of payment or security; (ii) sign Borrower's name
on any invoice or xxxx of lading for any Account or drafts against account
debtors, (iii) make, settle, and adjust all claims under Borrower's insurance
policies; (iv) settle and adjust disputes and claims about the Accounts directly
with account debtors, for amounts and on terms Bank determines reasonable; and
(v) transfer the Collateral into the name of Bank or a third party as permitted
under the Uniform Commercial Code. Bank may exercise the power of attorney to
sign. Borrower's name on any documents necessary to perfect or continue the
perfection of any security interest in the Collateral regardless of whether an
Event of Default has occurred. Bank's appointment as Borrower's attorney in
fact, and all of Bank's rights and powers, coupled with an interest, are
irrevocable until all Obligations have been fully repaid and performed and
Bank's obligation to provide Credit Extensions terminates.
9.3 ACCOUNTS COLLECTION. When an Event of Default occurs and continues, Bank may
notify any Person owing Borrower money of Bank's security interest in the funds
and verify the amount of the Account. In such case, Borrower must collect all
payments in trust for Bank and, if requested by Bank, immediately deliver the
payments to Bank in the form received from the account debtor, with proper
endorsements for deposit.
9.4 BANK EXPENSES. If Borrower fails to pay any amount or furnish any required
proof of payment to third persons, Bank may make all or part of the payment or
obtain insurance policies required in Section 6.5, and take any action under the
policies Bank reasonably deems prudent. Any amounts paid by Bank are Bank
Expenses and immediately due and payable, bearing interest at the then
applicable rate and secured by the Collateral. No payments by Bank are deemed an
agreement to make similar payments in the future or Bank's waiver of any Event
of Default.
9.5 BANK'S LIABILITY FOR COLLATERAL. If Bank complies with reasonable banking
practices and the Uniform Commercial Code, Bank shall have no liability or
responsibility for: (a) the safekeeping of the Collateral; (b) any loss or
damage to the Collateral; (c) any diminution in the value of the Collateral; or
(d) any act or default of any carrier, warehouseman, bailee, or other person.
Borrower bears all risk of loss, damage or destruction of the Collateral.
9.6 REMEDIES CUMULATIVE. Bank's rights and remedies under this Agreement, the
Loan Documents, and all other agreements are cumulative. Bank has all rights and
remedies provided under the Uniform Commercial Code, by law, or in equity.
Bank's exercise of one right or remedy is not an election, and Bank's waiver of
any Event of Default is not a continuing waiver.
13
Bank's delay is not a waiver, election, or acquiescence. No waiver is effective
unless signed by Bank and then is only effective for the specific instance and
purpose for which it was given.
9.7 DEMAND WAIVER. Borrower waives demand, notice of default or dishonor, notice
of payment and nonpayment, nonpayment at maturity, release, compromise,
settlement, extension, or renewal of accounts, documents, instruments, chattel
paper, and guarantees held by Bank on which Borrower is liable. .
10 NOTICES
All notices or demands by any party to this Agreement or any other related
agreement must be in writing and be personally delivered or sent by an overnight
delivery service, by certified mail, postage prepaid, return receipt requested,
at the addresses listed at the beginning of this Agreement or by telefacsimile
at the numbers set forth on the signature page hereof. A party may change its
notice address by giving the other party written notice.
11 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
Illinois law governs the Loan Documents without regard to principles of
conflicts of law. Borrower and Bank each submit to the exclusive jurisdiction of
the State and Federal courts in Xxxx County, Illinois.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY
TRANSACTION CONTEMPLATED HEREBY, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND
ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER
INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
12 GENERAL PROVISIONS
12.1 SUCCESSORS AND ASSIGNS. This Agreement binds and is for the benefit of the
successors and permitted assigns of each party. Borrower may not assign this
Agreement or any rights or Obligations under it without Bank's prior written
consent which may be granted or withheld in Bank's discretion. Bank has the
right, without the consent of, but with notice to, Borrower, to sell, transfer,
negotiate, or grant participation in all or any part of, or any interest in,
Bank's obligations; rights and benefits under this Agreement, the Loan Documents
or any related agreement; provided that, except if part of a sale of
substantially all of the Bank's assets, the Borrower shall have the right to
prepay all Obligations within 30 days of such sale or other transfer in
accordance with Section 2.2.
12.2 INDEMNIFICATION.
Except as otherwise as contemplated by Section 9.5 of this Agreement, Borrower
shall indemnify, defend and hold harmless Bank and its officers, employees and
agents (collectively, the "Indemnified Parties") against: (a) all obligations,
demands, claims, and liabilities asserted
14
by any other party in connection with the transactions contemplated by the Loan
Documents; and (b) all losses or Bank Expenses incurred, or paid by Bank from,
following, or consequential to transactions between Bank and Borrower (including
reasonable attorneys' fees and expenses). Notwithstanding anything set forth
herein to the contrary, in no event shall the described indemnity extend to
claims or losses caused by an Indemnified Party's gross negligence or willful
misconduct.
12.3 TIME OF ESSENCE. Time is of the essence for the performance of all
Obligations in this Agreement.
12.4 SEVERABILITY OF PROVISION. Each provision of this Agreement is severable
from every other provision in determining the enforceability of any provision.
12.5 AMENDMENTS IN WRITING, INTEGRATION. All amendments to this Agreement must
be in writing signed by both Bank and Borrower. This Agreement and the Loan
Documents represent the entire agreement about this subject matter, and
supersedes prior or contemporaneous negotiations or agreements. All prior or
contemporaneous agreements, understandings, representations, warranties, and
negotiations between the parties about the subject matter of this Agreement and
the Loan Documents merge into this Agreement and the Loan Documents.
12.6 COUNTERPARTS. This Agreement may be executed in any number of counterparts
and by different parties on separate counterparts, each of which, when executed
and delivered, are an original, and all taken together, are one Agreement.
12.7 SURVIVAL. All covenants, representations and warranties made in this
Agreement continue in full force while any Obligations remain outstanding. The
obligations of Borrower in Section 12.2 to indemnify Bank will survive until all
statutes of limitations for actions that may be brought against Bank have run.
12.8 CONFIDENTIALITY. In handling any confidential information, Bank will
exercise the same degree of care that it exercises for its own proprietary
information, but no less than a reasonable standard of care, but disclosure of
information may be made on a need-to-know basis: (i) to Bank's subsidiaries or
affiliates in connection with their present or prospective business relations
with Borrower; (ii) to prospective transferees or purchasers of any interest in
the Loans; (iii) as required by law, regulation, subpoena, or other order, (iv)
as required in connection with Bank's examination or audit; and (v) as Bank
reasonably considers appropriate in exercising remedies under this Agreement.
Confidential information does not include information that either: (a) is in
the public domain or in Bank's possession when disclosed to Bank, or becomes
part of the public domain after disclosure to Bank; or (b) is disclosed to Bank
by a third party, if Bank does not know that the third party is prohibited from
disclosing the information.
12.9 ATTORNEYS' FEES, COSTS AND EXPENSES. In any action or proceeding arising
out of or related to Bank's efforts to collect the Obligations, Bank will be
entitled to recover its reasonable attorneys' fees and other reasonable costs
and expenses incurred, in addition to any other relief to which it may be
entitled.
15
13 DEFINITIONS.
13.1 DEFINITIONS.
"ACCOUNTS" are all existing and later arising accounts, contract rights,
and other obligations owed Borrower in connection with its sale or lease of
goods (including licensing software and other technology) or provision of
services, all credit insurance, guaranties, other security and all merchandise
returned. or reclaimed by Borrower and Borrower's Books relating to any of the
foregoing.
"ADVANCE" means the Equipment Advance.
"AFFILIATE" of a Person is a Person that owns five percent (5%) or more or
controls directly or indirectly the Person, any Person that controls or is
controlled by or is under common control with the Person, and each of that
Person's senior executive officers, directors, partners and, for any Person that
is a limited liability company, that Person's managers and members.
"BANK EXPENSES" are all reasonable audit fees and expenses and reasonable
costs or expenses (including reasonable attorneys' fees and expenses) for
preparing, negotiating, administering, defending and enforcing the Loan
Documents (including appeals or Insolvency Proceedings).
"BORROWER" is Stereotaxis, Inc., a Delaware corporation.
"BORROWER'S BOOKS" are all Borrower's books and records including ledgers,
records regarding Borrower's assets or liabilities, the Collateral, business
operations or financial condition and all computer programs or discs or any
equipment containing the information.
"BUSINESS DAY" is any day that is not a Saturday, Sunday or a day on which
the Bank is closed.
"CLOSING DATE" is the date of this Agreement.
"COLLATERAL" is the property described on Exhibit A.
"CONTINGENT OBLIGATION" is, for any Person, any direct or indirect
liability, contingent or not, of that Person for (i) any indebtedness, lease,
dividend, letter of credit or other obligation of another such as an obligation
directly or indirectly guaranteed, endorsed, co-made, discounted or sold with
recourse by that Person, or for which that Person is directly or indirectly
liable; (ii) any obligations for undrawn letters of credit for the account of
that Person; and (iii) all obligations from any interest rate, currency or
commodity swap agreement, interest rate cap or collar agreement, or other
agreement or arrangement designated to protect a Person against fluctuation in
interest rates, currency exchange rates or commodity prices; but "Contingent
Obligation" does not include endorsements in the ordinary course of business.
The amount of a Contingent Obligation is the stated or determined amount of the
primary obligation for which the Contingent Obligation is made or, if not
determinable, the maximum reasonably anticipated liability for it
16
determined by the Person in good faith; but the amount may not exceed the
maximum of the obligations under the guarantee or other support arrangement.
"COPYRIGHTS" are all copyright rights, applications or registrations and
like protections in each work authorship or derivative work, whether published
or not (whether or not it is a trade secret) now or later existing, created,
acquired or held.
"CREDIT EXTENSION" is the Equipment Loan, or any other extension of credit
by Bank for Borrower's benefit.
"EBITDA" is earnings before interest, taxes, depreciation and amortization.
"ELIGIBLE EQUIPMENT" is all present and future machinery, equipment,
tenant improvements, furniture, fixtures, vehicles, tools, parts and attach-
ments in which Bank has a valid security interest, including new and/or used
equipment, computer equipment, office equipment, lab equipment, test equipment
and furnishings, provided that no more than 30% of the Equipment Advance may
include soft costs, including, but not limited to, taxes, shipping and
installation.
"EQUIPMENT" is all present and future machinery, equipment, tenant
improvements, furniture, fixtures, vehicles, tools, parts and attachments in
which Bank has a valid security interest, including new and/or used equipment,
computer equipment, office equipment, lab equipment, test equipment and
furnishings.
"EQUIPMENT ADVANCE" is defined in Section 2.1.1.
"EQUIPMENT LOAN" is a loan of $1,000,000 (one million dollars).
"EQUIPMENT LOAN PAYMENT" is defined in Section 2.1.1.
"EQUIPMENT MATURITY DATE" is September 30, 2005.
"ERISA" is the Employment Retirement Income Security Act of 1974, and its
regulations.
"FINAL PAYMENT" is a payment with respect to the Equipment Advance (in
addition to and not a substitution for the regular monthly payments of
principal plus accrued interest payable with respect to the Equipment Advance)
due on the last payment date of the Equipment Advance equal to the amount of the
Equipment Advance multiplied by the Final Payment Percentage.
"FINAL PAYMENT PERCENTAGE" is 3% of the amount of the Equipment Advance.
"GAAP" is generally accepted accounting principles for U.S. corporations.
"INDEBTEDNESS" is (a) indebtedness for borrowed money or the deferred price
of property or services, such as reimbursement and other obligations for surety
bonds and letters of credit,
17
(b) obligations evidenced by notes, bonds, debentures or similar instruments,
(c) capital lease obligations and (d) Contingent Obligations.
"INSOLVENCY PROCEEDING" is any proceeding by or against any Person under
the United States Bankruptcy Code, or any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, compositions, extensions
generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.
"INTELLECTUAL PROPERTY" is Borrower's right, title and interest in any
Copyrights, copyright applications, copyright registration and like protection
in each work of authorship and derivative work thereof, whether published or
unpublished, now owned or hereafter acquired; any patents, patent applications
and like protections including without limitation improvements, divisions,
continuations, renewals, reissues, extensions and continuations-in-part of the
same; trademarks; servicemarks and applications therefor, whether registered or
not, and the goodwill of the business of Borrower connected with and symbolized
by such trademarks, any trade secret rights, including any rights to unpatented
inventions, know-how, operating manuals, license rights and agreements and
confidential information, now owned or hereafter acquired; or any claims for
damage by way of any past, present and future infringement of any of the
foregoing.
"INVENTORY" is present and future inventory in which Borrower has any
interest, including merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products intended for sale or
lease or to be furnished under a contract of service, of every kind and
description now or later owned by or in the custody or possession, actual or
constructive, of Borrower, including inventory temporarily out of its custody or
possession or in transit and including returns on any accounts or other proceeds
(including insurance proceeds) from the sale or disposition of any of the
foregoing and any documents of title.
"INVESTMENT" is any beneficial ownership of (including stock, partnership
interest or other securities) any Person, or any loan, advance or capital
contribution to any Person.
"LIEN" is a mortgage, lien, deed of trust, charge, pledge, security
interest or other encumbrance.
"LOAN DOCUMENTS" are, collectively, this Agreement, any note, or notes or
guaranties executed by Borrower or any Person, and any other present or future
agreement between Borrower and/or for the benefit of Bank in connection with
this Agreement, all as amended, extended or restated.
"MATERIAL ADVERSE CHANGE" is defined in Section 8.3.
"OBLIGATIONS" are all debts, principal, interest, Bank Expenses and other
amounts Borrower owes Bank now or later, including letters of credit and foreign
exchange contracts, if any, and including interest accruing after Insolvency
Proceedings begin and debts, liabilities, or obligations of Borrower assigned to
Bank.
18
"PATENTS" are patents, patent applications and like protections, including
improvements, divisions, continuations, renewals, reissues, extensions and
continuations-in-part of the same.
"PERMITTED INDEBTEDNESS" is:
(a) Borrower's indebtedness to Bank under this Agreement or the Loan
Documents;
(b) Indebtedness existing on the Closing Date and shown on the Schedule;
(c) Subordinated Debt;
(d) Indebtedness to trade creditors and other third parties incurred in the
ordinary course of business;
(e) Indebtedness secured by Permitted Liens;
(f) Indebtedness represented by capital leases or operating leases; and
(g) Indebtedness of any type which would otherwise not qualify as
"Permitted Indebtedness" under the prior subsections in an aggregate amount of
not more than $200,000.
"PERMITTED INVESTMENTS" are:
(a) Investments shown on the Schedule and existing on the Closing Date;
(b) (i) marketable direct obligations issued or unconditionally guaranteed
by the United States or its agency or any State, (ii) commercial paper having
the highest rating from either Standard & Poor's Corporation or Xxxxx'x
Investors Service, Inc., (iii) Bank's certificates of deposit issued; and (iv)
money market mutual funds; and
(c) Investments of any type which would otherwise not qualify as "Permitted
Investments" under the prior subsections in an aggregate amount of not more than
$200,000.
"PERMITTED LIENS" are:
(a) Liens existing on the Closing Date and shown on the Schedule or arising
under this Agreement or other Loan Documents;
(b) Liens for taxes, fees, assessments or other government charges or
levies, either not delinquent or being contested in good faith and for which
Borrower maintains adequate reserves on its books;
(c) Purchase money Liens (i) on equipment acquired or held by Borrower or
its Subsidiaries incurred for financing the acquisition of the equipment, or
(ii) existing on equipment when acquired, if the Lien is confined to the
property and improvements and the proceeds of the equipment;
19
(d) Leases or subleases and licenses or sublicenses granted in the ordinary
course of Borrower's business, if the leases, subleases, licenses and
sublicenses permit granting Bank a security interest;
(e) Liens incurred in the extension, renewal or refinancing of the
indebtedness secured by Liens described in (a) through (c), but any extension,
renewal or replacement Lien must be limited to the property encumbered by the
existing Lien and the principal amount of the indebtedness may not increase;
(f) Liens granted to secure Permitted Indebtedness;
(g) Liens imposed by any law, such as mechanics', workers' materialmen's,
landlord's, carriers, or other like Liens arising in the ordinary course of
business which secure payment of obligations which are not past due or which are
being contested in good faith;
(h) Liens of any type which would otherwise not qualify as "Permitted
Liens" under the prior subsections in an aggregate amount of not more than
$200,000.
"PERSON" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint
stock company, estate, entity or government agency.
"RESPONSIBLE OFFICER" is an officer of Borrower authorized under the
corporate borrowing resolution to request an Advance.
"REMAINING MONTHS LIQUIDITY" OR "RML" is cash and cash equivalents held at
Bank divided by EBITDA.
"SCHEDULE" is any attached schedule of exceptions.
"SUBORDINATED DEBT" is debt incurred by Borrower subordinated to Borrower's
debt to Bank (and identified as subordinated by Borrower and Bank).
"SUBSIDIARY" is for any Person, or any other business entity of which more
than 50% of the voting stock or other equipment interests is owned or
controlled, directly or indirectly, by the Person or one or more Affiliates of
the Person.
"SVB ACCOUNT" is the operating account maintained by Borrower with Bank.
"UNIFORM COMMERCIAL CODE" OR "UCC" means the Uniform Commercial Code as in
effect from time to time in the State of Illinois.
20
The parties have executed this Loan and Security Agreement as of the date first
written above.
STEREOTAXIS, INC.
By: /s/ Nicola X.X. Xxxxx
----------------------------
Title: Chief Financial Officer
-------------------------
Facsimile No.: 000-000-0000
----------------------
SILICON VALLEY BANK
By: /s/ Xxx Xxxxxxx
----------------------------
Title: Vice President
-------------------------
Facsimile No.: (000) 000-0000
----------------------
21
SCHEDULE OF PENDING LITIGATION
------------------------------
1 Disputed claim by vendor, Xxxxxxx Tool & Machine Co., of Granite City
Illinois, for average of $89,000 (approx) on equipment built for
Sterotaxis. This is being vigorously defended.
No other litigation or pending litigation known.
(Signature) illegible
SCHEDULE OF PERMITTED LIENS
EXHIBIT A
The Collateral consists of all of Borrower's right, title and interest
in and to the following:
All goods and equipment now owned or hereafter acquired, including,
without limitation, all machinery, fixtures, vehicles (including motor vehicles
and trailers), and any interest in any of the foregoing, and all attachments,
accessories, accessions, replacements, substitutions, additions, and
improvements to any of the foregoing, wherever located;
All inventory, now owned or hereafter acquired, including, without
limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is temporarily out of Borrower's custody or possession or in
transit and including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the
foregoing and any documents of title representing any of the above
All contract rights and general intangibles now owned or hereafter
acquired, including, without limitation, goodwill, leases, license agreements,
franchise agreements, blueprints, drawings, purchase orders, customer lists,
route lists, infringements, claims, computer programs, computer discs, computer
tapes, literature, reports, catalogs, design rights, income tax refunds,
payments of insurance and rights to payment of any kind;
All now existing and hereafter arising accounts, contract rights,
royalties, license rights and all other forms of obligations owing to Borrower
arising out of the sale or lease of goods, the licensing of technology or the
rendering of services by Borrower, whether or not earned by performance, and any
and all credit insurance, guaranties, and other. security therefor, as well as
all merchandise returned to or reclaimed by Borrower;
All documents, cash, deposit accounts, securities, securities
entitlements, securities accounts; investment property, financial assets,
letters of credit, certificates of deposit, instruments and chattel paper now
owned or hereafter acquired and Borrower's Books relating to the foregoing; and
All Borrower's Books relating to the foregoing and any and all claims,
rights and interests in any of the above and all substitutions for, additions
and accessions to and proceeds thereof.
Notwithstanding the foregoing, the Collateral shall not be deemed to
include any copyrights, copyright applications, copyright registration and like
protection in each work of authorship and derivative work thereof, whether
published or unpublished, now owned or hereafter acquired; any patents, patent
applications and like protections including without limitation improvements,
divisions, continuations, renewals, reissues, extensions and
continuations-in-part of the same, trademarks, servicemarks and applications
therefor, whether registered or not, and the goodwill of the business of the
Borrower connected with and symbolized by such trademarks, any trade secret
rights, including any rights to unpatented inventions, know-how, operating
manuals, license rights and agreements and confidential information, now owned
or hereafter acquired; or any claims for damage by way of any past,
EXHIBIT B.
LOAN PAYMENT/ADVANCE TELEPHONE REQUEST FORM
DEADLINE FOR SAME DAY PROCESSING IS 3:00 P.M., E.S.T.
TO: EAST COAST CENTRAL CLIENT SERVICE DIVISION DATE: ____________________
FAX#: (000) 000-0000 TIME: ____________________
FROM: STEREOTAXIS. INC.
--------------------------------------------------------------------------
CLIENT NAME (BORROWER)
REQUESTED BY:
------------------------------------------------------------------
AUTHORIZED SIGNER'S NAME
AUTHORIZED SIGNATURE:
----------------------------------------------------------
PHONE NUMBER:
------------------------------------------------------------------
FROM ACCOUNT # TO ACCOUNT #
------------------------- -------------------------
REQUESTED TRANSACTION TYPE REQUESTED DOLLAR AMOUNT
-------------------------- -----------------------
PRINCIPAL INCREASE (ADVANCE) $
--------------------------------
PRINCIPAL PAYMENT (ONLY) $
--------------------------------
INTEREST PAYMENT (ONLY) $
--------------------------------
PRINCIPAL AND INTEREST (PAYMENT) $
--------------------------------
OTHER INSTRUCTIONS:
-------------------------------------------------------------
--------------------------------------------------------------------------------
All Borrower's representations and warranties in the Loan and Security Agreement
are true, correct and complete in all material respects on the date of the
telephone request for and Advance confirmed by this Borrowing Certificate; but
those representations and warranties expressly referring to another date shall
be true, correct and complete in all material respects as of that date.
