Exhibit 10.1
CREDIT AGREEMENT
(LINE OF CREDIT)
This Agreement (the "Agreement") is made and entered into as of May 7,
2002, by and between BANK OF THE WEST doing business as UNITED CALIFORNIA BANK
(the "Bank") and HYCOR BIOMEDICAL, INC. (the "Borrower"), on the terms and
conditions that follow:
SECTION
1
DEFINITIONS
1.1 CERTAIN DEFINED TERMS: Unless elsewhere defined in this Agreement, the
following terms shall have the following meanings (such meanings to be
generally applicable to the singular and plural forms of the terms
defined):
1.1.1 "ADVANCE": shall mean an advance to the Borrower under the credit
facility (ies) described in Section 2.
1.1.2 "BUSINESS DAY": shall mean a day, other than a Saturday or
Sunday, on which commercial banks are open for business in
California.
1.1.3 "COLLATERAL": shall mean the property described in Section 3,
together with any other personal or real property in which the
Bank may be granted a lien or security interest to secure payment
of the Obligations.
1.1.4 "CURRENT LIABILITIES": shall mean current liabilities as
determined in accordance with generally accepted accounting
principles, including any negative cash balance on the Borrower's
financial statement and Indebtedness for borrowed money under
lines of credit with the Bank used by the Borrower for working
capital purposes.
1.1.5 "DEBT": shall mean all liabilities of the Borrower less
Subordinated Debt, if any.
1.1.6 "EFFECTIVE TANGIBLE NET WORTH": shall mean the Borrower's stated
net worth plus Subordinated Debt but less all intangible assets
of the Borrower (i.e., goodwill, trademarks, patents, copyrights,
organization expense, and similar intangible items including, but
not limited to, investments in and all amounts due from
affiliates, officers or employees).
1.1.7 "ENVIRONMENTAL CLAIMS": shall mean all claims, however asserted,
by any governmental authority or other person alleging potential
liability or responsibility for violation of any Environmental
Law or for Discharge or injury to the environment or threat to
public health, personal injury (including sickness, disease or
death), property damage, natural resources damage, or otherwise
alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or
other type of relief, resulting from or based upon (a) the
presence, placement, discharge, emission or release (including
intentional and unintentional, negligent and non-negligent,
sudden or non-sudden, accidental or non-accidental placement,
spills, leaks, Discharges, emissions or releases) of any
Hazardous Material at, in, or from property, whether or not owned
by the Borrower, or (b) any other circumstances forming the basis
of any violation, or alleged violation, of any Environmental Law.
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1.1.8 "ENVIRONMENTAL LAWS": shall mean all federal, state or local
laws, statutes, common law duties, rules, regulations, ordinances
and codes, together with all administrative orders, directed
duties, requests, licenses, authorizations and permits of, and
agreements with, any governmental authorities, in each case
relating to environmental, health, safety and land use matters;
including the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 ("CERCLA"), the Clean Air Act, the
Federal Water Pollution Control Act of 1972, the Solid Waste
Disposal Act, the Federal Resource Conservation and Recovery Act,
the Toxic Substances Control Act, the Emergency Planning and
Community Right-to-Know Act, the California Hazardous Waste
Control Law, the California Solid Waste Management, Resource,
Recovery and Recycling Act, the California Water Code and the
California Health and Safety Code.
1.1.9 "ENVIRONMENTAL PERMITS": shall have the meaning provided in
Section 5.11 hereof.
1.1.10 "ERISA": shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, including (unless the
context otherwise requires) any rules or regulations promulgated
thereunder.
1.1.11 "EVENT OF DEFAULT": shall have the meaning set forth in Section
7.
1.1.12 "EXPIRATION DATE": shall mean July 1, 2004, or the date of
termination of the Bank's commitment to lend under this Agreement
pursuant to Section 8, whichever shall occur first.
1.1.13 "HAZARDOUS MATERIALS": shall mean all those substances which are
regulated by, or which may form the basis of liability under, any
Environmental Law, including all substances identified under any
Environmental Law as a pollutant, contaminant, hazardous waste,
hazardous constituent, special waste, hazardous substance,
hazardous material, or toxic substance, or petroleum or petroleum
derived substance or waste.
1.1.14 "INDEBTEDNESS": shall mean, with respect to the Borrower, (i) all
indebtedness for borrowed money or for the deferred purchase
price of property or services in respect of which the Borrower is
liable, contingently or otherwise, as obligor, guarantor or
otherwise, or in respect of which the Borrower otherwise assures
a creditor against loss and (ii) obligations under leases which
shall have been or should be, in accordance with generally
accepted accounting principles, reported as capital leases in
respect of which the Borrower is liable, contingently or
otherwise, or in respect of which the Borrower otherwise assures
a creditor against loss.
1.1.15 "LIBOR ADVANCE": shall have the respective meaning as it is
defined for each facility under Section 2, hereof.
1.1.16 "LIBOR INTEREST PERIOD": shall have the respective meaning as it
is defined for each facility under Section 2, hereof.
1.1.17 "LIBOR RATE": shall have the respective meaning as it is defined
for each facility under Section 2, hereof.
1.1.18 "LINE ACCOUNT": shall have the meaning provided in Section 2.2
hereof.
1.1.19 " LINE OF CREDIT": shall mean the credit facility described as
such in Section 2.
1.1.20 "OBLIGATIONS": shall mean all amounts owing by the Borrower to
the Bank pursuant to this Agreement including, but not limited
to, the unpaid principal amount of any loans or advances.
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1.1.21 "ORDINARY COURSE OF BUSINESS": shall mean, with respect to any
transaction involving the Borrower or any of its subsidiaries or
affiliates, the ordinary course of the Borrower's business, as
conducted by the Borrower in accordance with past practice and
undertaken by the Borrower in good faith and not for the purpose
of evading any covenant or restriction in this Agreement or in
any other document, instrument or agreement executed in
connection herewith.
1.1.22 "PERMITTED LIENS": shall mean: (i) liens and security interests
securing indebtedness owed by the Borrower to the Bank; (ii)
liens for taxes, assessments or similar charges not yet due;
(iii) liens of materialmen, mechanics, warehousemen, or carriers
or other like liens arising in the Ordinary Course of Business
and securing obligations which are not yet delinquent; (iv)
purchase money liens or purchase money security interests upon or
in any property acquired or held by the Borrower in the Ordinary
Course of Business to secure Indebtedness outstanding on the date
hereof or permitted to be incurred herein; (v) liens and security
interests which, as of the date hereof, have been disclosed to
and approved by the Bank in writing; and (vi) those liens and
security interests which in the aggregate constitute an
immaterial and insignificant monetary amount with respect to the
net value of the Borrower's assets.
1.1.23 "REFERENCE RATE": shall mean an index for a variable interest
rate which is quoted, published or announced by Bank as its
reference rate and as to which loans may be made by Bank at,
above or below such rate.
1.1.24 "SUBORDINATED DEBT": shall mean such liabilities of the Borrower
which have been subordinated to those owed to the Bank in a
manner acceptable to the Bank.
1.1.25 "VARIABLE RATE ADVANCE": shall have the respective meaning as it
is defined for each facility under Section 2, hereof.
1.1.26 "VARIABLE RATE": shall have the respective meaning as it is
defined for each facility under Section 2, hereof.
1.2 ACCOUNTING TERMS: All references to financial statements, assets,
liabilities, and similar accounting items not specifically defined
herein shall mean such financial statements or such items prepared or
determined in accordance with generally accepted accounting principles
consistently applied and, except where otherwise specified, all
financial data submitted pursuant to this Agreement shall be prepared in
accordance with such principles.
1.3 OTHER TERMS: Other terms not otherwise defined shall have the meanings
attributed to such terms in the California Uniform Commercial Code as in
effect on July 1, 2001 and from time to time thereafter.
SECTION
2
CREDIT FACILITIES
2.1 THE LINE OF CREDIT
2.1.1 THE LINE OF CREDIT: On terms and conditions as set forth herein,
the Bank agrees to make Advances to the Borrower from time to
time from the date hereof to the Expiration Date, provided the
aggregate amount of such Advances outstanding at any time does
not exceed $2,000,000.00 (the "Line of Credit"). Within the
foregoing limits, the Borrower may borrow, partially or wholly
prepay, and reborrow under this Section 2.1. Proceeds of the Line
of
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Credit shall be used for working capital .
2.1.2 MAKING LINE ADVANCES: Each Advance shall be conclusively deemed
to have been made at the request of and for the benefit of the
Borrower (i) when credited to any deposit account of the Borrower
maintained with the Bank or (ii) when paid in accordance with the
Borrower's written instructions. Subject to the requirements of
Section 4 and provided such request is made in a timely manner as
provided in Section 2.1.5 below, Advances shall be made by the
Bank under the Line of Credit .
2.1.3 REPAYMENT: On the Expiration Date, the Borrower hereby promises
and agrees to pay to the Bank in full the aggregate unpaid
principal amount of all Advances then outstanding, together with
all accrued and unpaid interest thereon.
2.1.4 INTEREST ON ADVANCES: Interest shall accrue from the date of each
Advance under the Line of Credit at one of the following rates,
as quoted by the Bank and as elected by the Borrower below:
(i) Variable Rate Advances: A variable rate per annum
equivalent to the Reference Rate (the "Variable Rate").
Interest shall be adjusted concurrently with any change in
the Reference Rate. An Advance based upon the Variable
Rate is hereinafter referred to as a "Variable Rate
Advance".
(ii) LIBOR Advances: A fixed rate quoted by the Bank for one
week, 1, 2, 3, or 6 months or for such other period of
time that the Bank may quote and offer (provided that any
such period of time does not extend beyond the Expiration
Date) (the "LIBOR Interest Period") for Advances in the
minimum amount of $500,000.00. Such interest rate shall be
a percentage approximately equivalent to 2.00% in excess
of the Bank's LIBOR Rate which is that rate determined by
the Bank's Treasury Desk as being the arithmetic mean
(rounded upwards, if necessary, to the nearest whole
multiple of one-sixteenth of one percent (1/16%)) of the
U. S. dollar London Interbank Offered Rates for such
period appearing on page 3750 (or such other page as may
replace page 3750) of the Telerate screen at or about
11:00 a.m. (London time) on the second Business Day prior
to the first days of such period (adjusted for any and all
assessments, surcharges and reserve requirements) (the
"LIBOR Rate"). An Advance based upon the LIBOR Rate is
hereinafter referred to as a "LIBOR Advance".
Interest on any Advance shall be computed on the basis of
360 days per year, but charged on the actual number of
days elapsed.
The Borrower hereby promises and agrees to pay interest in
arrears on Variable Rate Advances and LIBOR Advances on
the first day of each month.
If interest is not paid as and when it is due, it shall be
added to the principal, become and be treated as a part
thereof, and shall thereafter bear like interest.
2.1.5 NOTICE OF BORROWING: Upon written or telephonic notice which
shall be received by the Bank at or before 2:00 p.m. (California
time) on a Business Day, the Borrower may borrow under the Line
of Credit by requesting:
(i) A Variable Rate Advance. A Variable Rate Advance may be
made on the day notice is received by the Bank; provided,
however, that if the Bank shall not have received notice
at or before 2:00 p.m. on the day such Advance is
requested to be made, such Variable Rate Advance may, at
the Bank's option, be made on the next Business Day.
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(ii) A LIBOR Advance. Notice of any LIBOR Advance shall be
received by the Bank no later than two Business Days prior
to the day (which shall be a Business Day) on which the
Borrower requests such LIBOR Advance to be made.
2.1.6 NOTICE OF ELECTION TO ADJUST INTEREST RATE: The Borrower may
elect:
(i) That interest on a Variable Rate Advance shall be adjusted
to accrue at the LIBOR Rate; provided, however, that such
notice shall be received by the Bank no later than two
Business Days prior to the day (which shall be a Business
Day) on which the Borrower requests that interest be
adjusted to accrue at the LIBOR Rate.
(ii) That interest on a LIBOR Advance shall continue to accrue
at a newly quoted LIBOR Rate or shall be adjusted to
commence to accrue at the Variable Rate; provided,
however, that such notice shall be received by the Bank no
later than two Business Days prior to the last day of the
LIBOR Interest Period pertaining to such LIBOR Advance. If
the Bank shall not have received notice (as prescribed
herein) of the Borrower's election that interest on any
LIBOR Advance shall continue to accrue at the newly quoted
LIBOR Rate, the Borrower shall be deemed to have elected
that interest thereon shall be adjusted to accrue at the
Variable Rate upon the expiration of the LIBOR Interest
Period pertaining to such Advance.
2.1.7 PREPAYMENT: The Borrower may prepay any Advance in whole or in
part, at any time and without penalty, provided, however, that:
(i) any partial prepayment shall first be applied, at the Bank's
option, to accrued and unpaid interest and next to the
outstanding principal balance; and (ii) during any period of time
in which interest is accruing on any Advance on the basis of the
LIBOR Rate, no prepayment shall be made except on a day which is
the last day of the LIBOR Interest Period pertaining thereto. If
the whole or any part of any LIBOR Advance is prepaid by reason
of acceleration or otherwise, the Borrower shall, upon the Bank's
request, promptly pay to and indemnify the Bank for all costs,
expenses and any loss (including loss of future interest income)
actually incurred by the Bank and any loss (including loss of
profit resulting from the re-employment of funds) deemed
sustained by the Bank as a consequence of such prepayment.
The Bank shall be entitled to fund all or any portion of its
Advances in any manner it may determine in its sole discretion,
but all calculations and transactions hereunder shall be
conducted as though the Bank actually funded all Advances through
the purchase of dollar deposits bearing interest at the same rate
as U.S. Treasury securities in the amount of the relevant Advance
and in maturities corresponding to the date of such purchase to
the Expiration Date hereunder.
2.1.8 INDEMNIFICATION FOR LIBOR RATE COSTS: During any period of time
in which interest on any Advance is accruing on the basis of the
LIBOR Rate, the Borrower shall, upon the Bank's request, promptly
pay to and reimburse the Bank for all costs incurred and payments
made by the Bank by reason of any future assessment, reserve,
deposit or similar requirement or any surcharge, tax or fee
imposed upon the Bank or as a result of the Bank's compliance
with any directive or requirement of any regulatory authority
pertaining or relating to funds used by the Bank in quoting and
determining the LIBOR Rate.
2.1.9 CONVERSION FROM LIBOR RATE TO VARIABLE RATE: In the event that
the Bank shall at any time determine that the accrual of interest
on the basis of the LIBOR Rate (i) is infeasible because the Bank
is unable to determine the LIBOR Rate due to the unavailability
of U.S. dollar deposits, contracts or certificates of deposit in
an amount approximately equal to the amount of the relevant
Advance and for a period of time approximately equal to relevant
LIBOR Interest Period or (ii) is or has become unlawful or
infeasible by reason of the Bank's compliance with any new law,
rule, regulation, guideline or order, or any new
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interpretation of any present law, rule, regulation, guideline
or order, then the Bank shall give telephonic notice thereof
(confirmed in writing) to the Borrower, in which event any
Advance bearing interest at the LIBOR Rate shall be deemed to be
a Variable Rate Advance and interest shall thereupon immediately
accrue at the Variable Rate.
2.2 LINE ACCOUNT: The Bank shall maintain on its books a record of account
in which the Bank shall make entries for each Advance and such other
debits and credits as shall be appropriate in connection with the credit
facilities granted hereunder (the "Line Account"). The Bank shall
provide the Borrower with a statement of the Borrower's Line Account,
which statement shall be considered to be correct and conclusively
binding on the Borrower unless the Borrower notifies the Bank to the
contrary within 30 days after the Borrower's receipt of any such
statement which it deems to be incorrect.
2.3 PAYMENTS: If any payment required to be made by the Borrower hereunder
becomes due and payable on a day other than a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and
interest thereon shall be payable at the then applicable rate during
such extension. All payments required to be made hereunder shall be made
to the office of the Bank designated for the receipt of notices herein
or such other office as Bank shall from time to time designate.
2.4 LATE PAYMENT: In addition to any other rights the Bank may have
hereunder, if any payment of principal or interest or any portion
thereof, under this Agreement is not paid within 5 days of when due, a
late payment charge equal to five percent (5%) of such past due payment
may be assessed and shall be immediately payable.
SECTION
3
COLLATERAL
3.1 THE COLLATERAL: To secure payment and performance of all the Borrower's
Obligations under this Agreement and all other liabilities, loans,
guarantees, covenants and duties owed by the Borrower to the Bank,
whether or not evidenced by this or by any other agreement, absolute or
contingent, due or to become due, now existing or hereafter and
howsoever created, the Borrower hereby grants the Bank a security
interest in and to all of the following property ("Collateral"):
(i) EQUIPMENT. All goods now owned or hereafter acquired by
the Borrower or in which the Borrower now has or may
hereafter acquire any interest, including, but not limited
to, all machinery, equipment, furniture, furnishings,
fixtures, tools, supplies and motor vehicles of every kind
and description, and all additions, accessions,
improvements, replacements and substitutions thereto and
thereof (the "Equipment").
(ii) INVENTORY. All inventory now owned or hereafter acquired
by the Borrower, including, but not limited to, all raw
materials, work in process, finished goods, inventory
leased to others or held for lease, merchandise, parts and
supplies of every kind and description, including
inventory temporarily out of the Borrower's custody or
possession, together with all returns on accounts (the
"Inventory").
(iii) ACCOUNTS. All accounts, letter of credit rights,
commercial tort claims, contract rights and general
intangibles, including software and payment intangibles,
now owned or hereafter created or acquired by the
Borrower, including, but not limited to, all receivables,
including as-extracted receivables, credit card
receivables, health care receivables, insurance
receivables, software receivables and license
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fees, goodwill, trademarks, trademark applications, trade
styles, trade names, patents, patent applications,
copyrights and copyright applications, customer lists,
business records and computer programs, tapes, disks and
related data processing software that at any time evidence
or contain information relating to any of the Collateral.
(iv) DOCUMENTS. All documents, instruments and chattel paper,
whether electronic or tangible, now owned or hereafter
acquired by the Borrower, including, but not limited to,
warehouse and other receipts, bills of sale, promissory
notes and bills of lading.
(v) MONIES. All monies, deposit accounts, certificates of
deposit, investment property and securities of the
Borrower now or hereafter in the Bank's or its agents'
possession.
(vi) ASSETS. All assets of the Borrower, whether now existing
or hereafter acquired, and the products and proceeds
thereof.
The Bank's security interest in the Collateral shall be a continuing lien and
shall include the proceeds and products of the Collateral including, but not
limited to, the proceeds of any insurance thereon.
Borrower hereby consents to and instructs Bank to file financing statements in
all locations deemed appropriate by the Bank from time to time.
The security interest granted to Bank in the Collateral shall not secure or be
deemed to secure any Indebtedness of the Borrower to the Bank which is, at the
time of its creation, subject to the provisions of any state or federal consumer
credit or truth-in-lending disclosure statutes.
SECTION
4
CONDITIONS PRECEDENT
4.1 CONDITIONS PRECEDENT TO THE INITIAL EXTENSION OF CREDIT: The obligation
of the Bank to make the initial Advance or the first extension of credit
to or on account of the Borrower hereunder is subject to the conditions
precedent that the Bank shall have received before the date of such
initial Advance or such first extension of credit all of the following,
in form and substance satisfactory to the Bank:
(i) AUTHORITY TO BORROW. Evidence that the execution, delivery
and performance by the Borrower of this Agreement and any
document, instrument or agreement required hereunder have
been duly authorized.
(ii) FEES. A fee of $2,500.00, such fee to be deemed to be
fully earned upon payment.
(iii) FINANCING STATEMENTS. UCC-1 financing statement(s)
describing the Collateral, which have been filed with the
Secretary of State or the county recorder as a lien of
first priority.
(iv) MISCELLANEOUS. Such other evidence as the Bank may request
to establish the consummation of the transaction
contemplated hereunder and compliance with the conditions
of this Agreement.
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4.2 CONDITIONS PRECEDENT TO ALL EXTENSIONS OF CREDIT: The obligation of the
Bank to make each Advance or each other extension of credit, as the case
may be, to or on account of the Borrower (including the initial Advance
or the first extension of credit) shall be subject to the further
conditions precedent that, on the date of each Advance or each extension
of credit and after the making of such Advance or extension of credit:
(i) REPORTING REQUIREMENTS. The Bank shall have received the
documents set forth in Section 6.1.
(ii) SUBSEQUENT APPROVALS. The Bank shall have received such
supplemental approvals, opinions or documents as the Bank
may reasonably request.
(iii) REPRESENTATIONS AND WARRANTIES. The representations
contained in Section 5 and in any other document,
instrument or certificate delivered to the Bank hereunder
are true, correct and complete.
(iv) EVENT OF DEFAULT. No event has occurred and is continuing
which constitutes, or with the lapse of time or giving of
notice or both, would constitute an Event of Default.
(v) COLLATERAL. The security interest in the Collateral has
been duly authorized, created and perfected with first
priority and is in full force and effect.
The Borrower's acceptance of the proceeds of any loan, Advance or extension of
credit, or the Borrower's applying for any Letter of Credit, or the Borrower's
execution of any document or instrument evidencing or creating any Obligation
hereunder shall be deemed to constitute the Borrower's representation and
warranty that all of the above statements are true and correct.
SECTION
5
REPRESENTATIONS AND WARRANTIES
The Borrower hereby makes the following representations and warranties to the
Bank, which representations and warranties are continuing:
5.1 STATUS: The Borrower's correct legal name is as stated in this Agreement
and the Borrower is a corporation duly organized and validly existing
under the laws of the state of Delaware and with its chief executive
office in the state of Delaware and is properly licensed and is
qualified to do business and in good standing in, and, where necessary
to maintain the Borrower's rights and privileges, has complied with the
fictitious name statute of every jurisdiction in which the Borrower is
doing business.
5.2 AUTHORITY: The execution, delivery and performance by the Borrower of
this Agreement and any instrument, document or agreement required
hereunder have been duly authorized and do not and will not: (i) violate
any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
application to the Borrower; (ii) result in a breach of or constitute a
default under any material indenture or loan or credit agreement or
other material agreement, lease or instrument to which the Borrower is a
party or by which it or its properties may be bound or affected; or
(iii) require any consent or approval of its stockholders or violate any
provision of its articles of incorporation or by-laws.
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5.3 LEGAL EFFECT: This Agreement constitutes, and any instrument, document
or agreement required hereunder when delivered hereunder will
constitute, legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their respective
terms.
5.4 FICTITIOUS TRADE STYLES: There are no fictitious trade styles used by
the Borrower in connection with its business operations. The Borrower
shall notify the Bank not less than 30 days prior to effecting any
change in the matters described herein or prior to using any other
fictitious trade style at any future date, indicating the trade style
and state(s) of its use.
5.5 FINANCIAL STATEMENTS: All financial statements, information and other
data which may have been or which may hereafter be submitted by the
Borrower to the Bank are true, accurate and correct and have been or
will be prepared in accordance with generally accepted accounting
principles consistently applied and accurately represent the financial
condition or, as applicable, the other information disclosed therein.
Since the most recent submission of such financial information or data
to the Bank, the Borrower represents and warrants that no material
adverse change in the Borrower's financial condition or operations has
occurred which has not been fully disclosed to the Bank in writing.
5.6 LITIGATION: Except as have been disclosed to the Bank in writing, there
are no actions, suits or proceedings pending or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or the Borrower's
properties before any court or administrative agency which, if
determined adversely to the Borrower, would have a material adverse
effect on the Borrower's financial condition or operations or on the
Collateral.
5.7 TITLE TO ASSETS: The Borrower has good and marketable title to all of
its assets (including, but not limited to, the Collateral) and the same
are not subject to any security interest, encumbrance, lien or claim of
any third person except for Permitted Liens.
5.8 ERISA: If the Borrower has a pension, profit sharing or retirement plan
subject to ERISA, such plan has been and will continue to be funded in
accordance with its terms and otherwise complies with and continues to
comply with the requirements of ERISA.
5.9 TAXES: The Borrower has filed all tax returns required to be filed and
paid all taxes shown thereon to be due, including interest and
penalties, other than such taxes which are currently payable without
penalty or interest or those which are being duly contested in good
faith.
5.10 MARGIN STOCK. The proceeds of any loan or advance hereunder will not be
used to purchase or carry margin stock as such term is defined under
Regulation U of the Board of Governors of the Federal Reserve System.
5.11 ENVIRONMENTAL COMPLIANCE. The operations of the Borrower comply, and
during the term of this Agreement will at all times comply, in all
respects with all Environmental Laws; the Borrower has obtained all
licenses, permits, authorizations and registrations required under any
Environmental Law ("Environmental Permits") and necessary for its
ordinary course operations, all such Environmental Permits are in good
standing, and the Borrower is in compliance with all material terms and
conditions of such Environmental Permits; neither the Borrower nor any
of its present property or operations is subject to any outstanding
written order from or agreement with any governmental authority nor
subject to any judicial or docketed administrative proceeding,
respecting any Environmental Law, Environmental Claim or Hazardous
Material; there are no Hazardous Materials or other conditions or
circumstances existing, or arising from operations prior to the date of
this Agreement, with respect to any property of the Borrower that would
reasonably be expected to give rise to Environmental Claims; provided,
however, that with respect to property leased from an unrelated third
party, the foregoing representation is made to the best knowledge of the
Borrower. In addition, (i) the Borrower does not have any underground
storage tanks that are not properly registered or permitted under
applicable Environmental Laws, or that are leaking or disposing of
Hazardous Materials off-site, and (ii) the Borrower has notified all of
their employees of
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the existence, if any, of any health hazard arising from the conditions
of their employment and have met all notification requirements under
Title III of CERCLA and all other Environmental Laws.
5.12 INVENTORY:
(i) The Borrower keeps correct and accurate records.
(itemizing and describing the kind, type, quality and
quantity of inventory, the Borrower's cost therefor and
selling price thereof, and the daily withdrawals therefrom
and additions thereto).
(ii) All inventory is of good and merchantable quality, free
from defects.
(iii) The inventory is not stored with a bailee, warehouseman or
similar party.
SECTION
6
COVENANTS
The Borrower covenants and agrees that, during the term of this Agreement, and
so long thereafter as the Borrower is indebted to the Bank under this Agreement,
the Borrower will, unless the Bank shall otherwise consent in writing:
6.1 REPORTING AND CERTIFICATION REQUIREMENTS: Deliver or cause to be
delivered to the Bank in form and detail satisfactory to the Bank:
(i) Not later than 15 days after filing each year, a copy of
the Borrower's SEC Form 10K.
(ii) Not later than 15 days after filing each quarter, a copy
of the Borrower's SEC Form 10Q.
(iii) Concurrently with the delivery of the financial reports
required hereunder, a compliance certificate stating that
the Borrower is in compliance with all covenants contained
herein and that no Event of Default or potential Event of
Default has occurred or is continuing, and certified to by
the chief financial officer of the Borrower.
(iv) Promptly upon the Bank's request, such other information
pertaining to the Borrower, the Collateral or any
guarantor hereunder as the Bank may reasonably request.
6.2 FINANCIAL CONDITION: The Borrower promises and agrees, during the term
of this Agreement and until payment in full of all of the Borrower's
Obligations, the Borrower will maintain at all times:
(i) A minimum Effective Tangible Net Worth of at least
$10,000,000.00.
(ii) A ratio of Debt to Effective Tangible Net Worth of not
more than .75 to 1.
(iii) A ratio of the sum of cash, cash equivalents and accounts
receivable to Current Liabilities of not less than 1.0 to
1.
6.3 PRESERVATION OF EXISTENCE; COMPLIANCE WITH APPLICABLE LAWS: Maintain and
preserve its existence and all rights and privileges now enjoyed; and
conduct its business and operations in accordance with all applicable
laws, rules and regulations.
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6.4 MERGE OR CONSOLIDATE: Not liquidate or dissolve, merge or consolidate
with or into, or acquire any other business organization, provided
however, that this Section 6.4 shall not apply to transactions in which
Borrower is the surviving entity.
6.5 MAINTENANCE OF INSURANCE: Keep and maintain the Collateral insured for
not less than its full replacement value against all risks of loss and
damage and maintain insurance in such amounts and covering such risks as
is usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which the Borrower
operates and maintain such other insurance and coverages as may be
required by the Bank. All such insurance shall be in form and amount and
with companies satisfactory to the Bank.
With respect to insurance covering properties in which the Bank
maintains a security interest or lien, such insurance shall name the
Bank as loss payee pursuant to a loss payable endorsement satisfactory
to the Bank and shall not be altered or canceled except upon 10 days'
prior written notice to the Bank. Upon the Bank's request, the Borrower
shall furnish the Bank with the original policy or binder of all such
insurance.
6.6 MAINTENANCE OF COLLATERAL AND OTHER PROPERTIES: Except for Permitted
Liens, keep and maintain the Collateral free and clear of all levies,
liens, encumbrances and security interests (including, but not limited
to, any lien of attachment, judgment or execution) and defend the
Collateral against any such levy, lien, encumbrance or security
interest; comply with all laws, statutes and regulations pertaining to
the Collateral and its use and operation; execute, file and record such
statements, notices and agreements, take such actions and obtain such
certificates and other documents as necessary to perfect, evidence and
continue the Bank's security interest in the Collateral and the priority
thereof; maintain accurate and complete records of the Collateral which
show all sales, claims and allowances; and properly care for, house,
store and maintain the Collateral in good condition, free of misuse,
abuse and deterioration, other than normal wear and tear. The Borrower
shall also maintain and preserve all its properties in good working
order and condition in accordance with the general practice of other
businesses of similar character and size, ordinary wear and tear
excepted.
6.7 PAYMENT OF OBLIGATIONS AND TAXES: Make timely payment of all assessments
and taxes and all of its liabilities and obligations including, but not
limited to, trade payables, unless the same are being contested in good
faith by appropriate proceedings with the appropriate court or
regulatory agency. For purposes hereof, the Borrower's issuance of a
check, draft or similar instrument without delivery to the intended
payee shall not constitute payment.
6.8 DEPOSITORY RELATIONSHIPS: Maintain its primary business depository
relationship with Bank, including general, operating and administrative
deposit accounts and cash management services.
6.9 INSPECTION RIGHTS AND ACCOUNTING RECORDS: The Borrower will maintain
adequate books and records in accordance with generally accepted
accounting principles consistently applied and in a manner otherwise
acceptable to Bank, and, at any reasonable time and from time to time,
permit the Bank or any representative thereof to examine and make copies
of the records and visit the properties of the Borrower and discuss the
business and operations of the Borrower with any employee or
representative thereof. If the Borrower shall maintain any records
(including, but not limited to, computer generated records or computer
programs for the generation of such records) in the possession of a
third party, the Borrower hereby agrees to notify such third party to
permit the Bank free access to such records at all reasonable times and
to provide the Bank with copies of any records which it may request, all
at the Borrower's expense, the amount of which shall be payable
immediately upon demand.
6.10 PAYMENT OF DIVIDENDS: Not declare or pay any dividends on any class of
stock now or hereafter outstanding except dividends payable solely in
the Borrower's capital stock.
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6.11 LOANS: Not make any loans or advances or extend credit to any third
person, including, but not limited to, directors, officers,
shareholders, partners, employees, affiliated entities and subsidiaries
of the Borrower, except for credit extended in the Ordinary Course of
Business as presently conducted.
6.12 LIENS AND ENCUMBRANCES: Not create, assume or permit to exist any
security interest, encumbrance, mortgage, deed of trust, or other lien
(including, but not limited to, a lien of attachment, judgment or
execution) affecting any of the Borrower's properties, or execute or
allow to be filed any financing statement or continuation thereof
affecting any of such properties, except for Permitted Liens or as
otherwise provided in this Agreement.
6.13 TRANSFER ASSETS: Not, after the date hereof, sell, contract for sale,
convey, transfer, assign, lease or sublet, any of its assets (including,
but not limited to, the Collateral) except in the Ordinary Course of
Business and, then, only for full, fair and reasonable consideration.
6.14 CHANGE IN NATURE OF BUSINESS: Not make any material change in its
financial structure or the nature of its business as existing or
conducted as of the date hereof.
6.15 MAINTENANCE OF JURISDICTION: Borrower shall maintain the jurisdiction of
its organization and chief executive office, or if applicable, principal
residence, as set forth herein and not change such jurisdiction name or
form of organization without 30 days prior written notice to Bank.
6.16 COMPENSATION OF EMPLOYEES: Compensate its employees for services
rendered at an hourly rate at least equal to the minimum hourly rate
prescribed by any applicable federal or state law or regulation.
6.17 NOTICE: Give the Bank prompt written notice of any and all (i) Events of
Default; (ii) litigation, arbitration or administrative proceedings to
which the Borrower is a party and in which the claim or liability
exceeds $100,000.00 or which affects the Collateral; (iii) other matters
which have resulted in, or might result in a material adverse change in
the Collateral or the financial condition or business operations of the
Borrower, and (iv) any enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened
against the Borrower or any of its properties.
6.18 ENVIRONMENTAL COMPLIANCE: The Borrower shall conduct its operations and
keep and maintain all of its property in compliance with all
Environmental Laws and, upon the written request of the Bank, the
Borrower shall submit to the Bank, at the Borrower's sole cost and
expense, at reasonable intervals, a report providing the status of any
environmental, health or safety compliance, hazard or liability.
6.19 INVENTORY:
(i) Except as provided herein below, the Borrower's inventory
shall, at all times, be in the Borrower's physical
possession, shall not be held by others on consignment,
sale on approval, or sale or return and shall be kept only
at: 0000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, XX 00000.
(ii) The Borrower shall keep correct and accurate records.
(iii) All inventory shall be of good and merchantable quality,
free from defects.
(iv) The inventory shall not at any time or times hereafter be
stored with a bailee, warehouseman or similar party
without the Bank's prior written consent and, in such
event, the Borrower will concurrently therewith cause any
such bailee, warehouseman or similar party to issue and
deliver to the Bank, in form acceptable
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to the Bank, warehouse receipts in the Bank's name
evidencing the storage of inventory.
(v) At any reasonable time and from time to time, allow Bank
to have the right, upon demand, to inspect and examine
inventory and to check and test the same as to quality,
quantity, value and condition and the Borrower agrees to
reimburse the Bank for the Bank's reasonable costs and
expenses in so doing.
6.20 LOCATION AND MAINTENANCE OF EQUIPMENT.:
(i) The Equipment shall at all times be in the Borrower's
physical possession, shall not be held for sale or lease,
and shall be kept only at the following location(s): 0000
Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, XX 00000.
The Borrower shall not secrete, abandon or remove, or
permit the removal of, the Equipment, or any part thereof,
from the location(s) shown above or remove or permit to be
removed any accessories now or hereafter placed upon the
Equipment.
(ii) Upon the Bank's demand, the Borrower shall immediately
provide the Bank with a complete and accurate description
of the Equipment including, as applicable, the make,
model, identification number and serial number of each
item of Equipment. In addition, the Borrower shall
immediately notify the Bank of the acquisition of any new
or additional Equipment or the replacement of any existing
Equipment and shall supply the Bank with a complete
description of any such additional or replacement
Equipment.
(iii) The Borrower shall, at the Borrower's sole cost and
expense, keep and maintain the Equipment in a good state
of repair and shall not destroy, misuse, abuse, illegally
use or be negligent in the care of the Equipment or any
part thereof. The Borrower shall not remove, destroy,
obliterate, change, cover, paint, deface or alter the name
plates, serial numbers, labels or other distinguishing
numbers or identification marks placed upon the Equipment
or any part thereof by or on behalf of the manufacturer,
any dealer or rebuilder thereof, or the Bank. The Borrower
shall not be released from any liability to the Bank
hereunder because of any injury to or loss or destruction
of the Equipment. The Borrower shall allow the Bank and
its representatives free access to and the right to
inspect the Equipment at all times and shall comply with
the terms and conditions of any leases covering the real
property on which the Equipment is located and any orders,
ordinances, laws, regulations or rules of any federal,
state or municipal agency or authority having jurisdiction
of such real property or the conduct of the business of
the persons having control or possession of the Equipment.
(iv) The Equipment is not now and shall not at any time
hereafter be so affixed to the real property on which it
is located as to become a fixture or a part thereof. The
Equipment is now and shall at all times hereafter be and
remain personal property of the Borrower.
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SECTION
7
EVENTS OF DEFAULT
Any one or more of the following described events shall constitute an
event of default (an "Event of Default") under this Agreement:
7.1 NON-PAYMENT: Any Borrower shall fail to pay the principal amount of any
Obligations when due or interest on the Obligations within 5 days of
when due.
7.2 PERFORMANCE UNDER THIS AGREEMENT: The Borrowers shall fail in any
material respect to perform or observe any term, covenant or agreement
contained in this Agreement or in any document, instrument or agreement
relating to this Agreement or any other document or agreement executed
by the Borrowers with or in favor of Bank and any such failure shall
continue unremedied for more than 30 days after the occurrence thereof.
7.3 REPRESENTATIONS AND WARRANTIES; FINANCIAL STATEMENTS: Any representation
or warranty made by the Borrower under or in connection with this
Agreement or any financial statement given by the Borrower or any
guarantor shall prove to have been incorrect in any material respect
when made or given or when deemed to have been made or given.
7.4 OTHER AGREEMENTS: If there is a default under any agreement to which
Borrower is a party with Bank or with a third party or parties resulting
in a right by the Bank or by such third party or parties, whether or not
exercised, to accelerate the maturity of any Indebtedness.
7.5 INSOLVENCY: The Borrower or any guarantor shall: (i) become insolvent or
be unable to pay its debts as they mature; (ii) make an assignment for
the benefit of creditors or to an agent authorized to liquidate any
substantial amount of its properties and assets; (iii) file a voluntary
petition in bankruptcy or seeking reorganization or to effect a plan or
other arrangement with creditors; (iv) file an answer admitting the
material allegations of an involuntary petition relating to bankruptcy
or reorganization or join in any such petition; (v) become or be
adjudicated a bankrupt; (vi) apply for or consent to the appointment of,
or consent that an order be made, appointing any receiver, custodian or
trustee, for itself or any of its properties, assets or businesses; or
(vii) in an involuntary proceeding, any receiver, custodian or trustee
shall have been appointed for all or substantial part of the Borrower's
or guarantor's properties, assets or businesses and shall not be
discharged within 30 days after the date of such appointment.
7.6 EXECUTION: Any writ of execution or attachment or any judgment lien
shall be issued against any property of the Borrower and shall not be
discharged or bonded against or released within 30 days after the
issuance or attachment of such writ or lien.
7.7 SUSPENSION: The Borrower shall voluntarily suspend the transaction of
business or allow to be suspended, terminated, revoked or expired any
permit, license or approval of any governmental body necessary to
conduct the Borrower's business as now conducted.
7.8 MATERIAL ADVERSE CHANGE: If there occurs a material adverse change in
the Borrower's business or financial condition, or if there is a
material impairment of the prospect of repayment of any portion of the
Obligations or there is a material impairment of the value or priority
of the Bank's security interest in the Collateral, or if a Borrower who
is a natural person shall die.
7.9 CHANGE IN OWNERSHIP: There shall occur a sale, transfer, disposition or
encumbrance (whether voluntary or involuntary), or an agreement shall be
entered into to do so, with respect to more than 10% of the issued and
outstanding capital stock of the Borrower.
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7.10 IMPAIRMENT OF COLLATERAL. There shall occur any injury or damage to all
or any part of the Collateral or all or any part of the Collateral shall
be lost, stolen or destroyed.
SECTION
8
REMEDIES ON DEFAULT
Upon the occurrence of any Event of Default, the Bank may, at its sole and
absolute election, without demand and only upon such notice as may be required
by law:
8.1 ACCELERATION: Declare any or all of the Borrower's indebtedness owing to
the Bank, whether under this Agreement or any other document, instrument
or agreement, immediately due and payable, whether or not otherwise due
and payable.
8.2 CEASE EXTENDING CREDIT: Cease making Advances or otherwise extending
credit to or for the account of the Borrower under this Agreement or
under any other agreement now existing or hereafter entered into between
the Borrower and the Bank.
8.3 TERMINATION: Terminate this Agreement as to any future obligation of the
Bank without affecting the Borrower's obligations to the Bank or the
Bank's rights and remedies under this Agreement or under any other
document, instrument or agreement.
8.4 PROTECTION OF SECURITY INTEREST: Make such payments and do such acts as
the Bank, in its sole judgment, considers necessary and reasonable to
protect its security interest or lien in the Collateral. The Borrower
hereby irrevocably authorizes the Bank to pay, purchase, contest or
compromise any encumbrance, lien or claim which the Bank, in its sole
judgment, deems to be prior or superior to its security interest.
Further, the Borrower hereby agrees to pay to the Bank, upon demand
therefor, all expenses and expenditures (including attorneys' fees)
incurred in connection with the foregoing.
8.5 FORECLOSURE: Enforce any security interest or lien given or provided for
under this Agreement or under any security agreement, mortgage, deed of
trust or other document, in such manner and such order, as to all or any
part of the properties subject to such security interest or lien, as the
Bank, in its sole judgment, deems to be necessary or appropriate and the
Borrower hereby waives any and all rights, obligations or defenses now
or hereafter established by law relating to the foregoing. In the
enforcement of its security interest or lien, the Bank is authorized to
enter upon the premises where any Collateral is located and take
possession of the Collateral or any part thereof, together with the
Borrower's records pertaining thereto, or the Bank may require the
Borrower to assemble the Collateral and records pertaining thereto and
make such Collateral and records available to the Bank at a place
designated by the Bank. The Bank may sell the Collateral or any portions
thereof, together with all additions, accessions and accessories
thereto, giving only such notices and following only such procedures as
are required by law, at either a public or private sale, or both, with
or without having the Collateral present at the time of the sale, which
sale shall be on such terms and conditions and conducted in such manner
as the Bank determines in its sole judgment to be commercially
reasonable. The Collateral may be disposed of in its then condition
without any preparation or processing. In connection with any
disposition of the Collateral, the Bank may disclaim any warranty
relating to title, possession or quiet enjoyment. Any deficiency which
exists after the disposition or liquidation of the Collateral shall be a
continuing liability of the Borrower to the Bank and shall be
immediately paid by the Borrower to the Bank.
8.6 NON-EXCLUSIVITY OF REMEDIES: Exercise one or more of the Bank's rights
set forth herein or seek such other rights or pursue such other remedies
as may be provided by law, in equity or in any
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other agreement now existing or hereafter entered into between the
Borrower and the Bank, or otherwise.
8.7 APPLICATION OF PROCEEDS: All amounts received by the Bank as proceeds
from the disposition or liquidation of the Collateral shall be applied
to the Borrower's indebtedness to the Bank as follows: first, to the
costs and expenses of collection, enforcement, protection and
preservation of the Bank's lien in the Collateral, including court costs
and reasonable attorneys' fees, whether or not suit is commenced by the
Bank; next, to those costs and expenses incurred by the Bank in
protecting, preserving, enforcing, collecting, liquidating, selling or
disposing of the Collateral; next, to the payment of accrued and unpaid
interest on all of the Obligations; next, to the payment of the
outstanding principal balance of the Obligations; and last, to the
payment of any other indebtedness owed by the Borrower to the Bank. Any
excess Collateral or excess proceeds existing after the disposition or
liquidation of the Collateral will be returned or paid by the Bank to
the Borrower.
If any non-cash proceeds are received in connection with any sale of
Collateral, the Bank shall not apply such non-cash proceeds to the
Obligations unless and until such proceeds are converted to such;
provided, however, that if such non-cash proceeds are not expected on
the date of receipt thereof to be converted to cash within one year
after such date, the Bank shall use commercially reasonable efforts to
convert such non-cash proceeds to cash within such one year period.
SECTION
9
MISCELLANEOUS
9.1 AMOUNTS PAYABLE ON DEMAND: If the Borrower shall fail to pay on demand
any amount so payable under this Agreement, the Bank may, at its option
and without any obligation to do so and without waiving any default
occasioned by the Borrower having so failed to pay such amount, create
an Advance under this Agreement in an amount equal to the amount so
payable, which Advance shall thereafter bear interest as provided
hereunder.
9.2 DEFAULT INTEREST RATE: If an Event of Default, or an event which, with
notice or passage of time could become an Event of Default, has occurred
or is continuing, the Borrower shall pay to the Bank interest on any
Indebtedness or amount payable under this Agreement at a rate which is
3% in excess of the rate or rates then in effect under this Agreement.
9.3 RELIANCE AND FURTHER ASSURANCES: Each warranty, representation,
covenant, obligation and agreement contained in this Agreement shall be
conclusively presumed to have been relied upon by the Bank regardless of
any investigation made or information possessed by the Bank and shall be
cumulative and in addition to any other warranties, representations,
covenants and agreements which the Borrower now or hereafter shall give,
or cause to be given, to the Bank. Borrower agrees to execute all
documents and instruments and to perform such acts as the Bank may
reasonably deem necessary to confirm and secure to the Bank all rights
and remedies conferred upon the Bank by this agreement and all other
documents related thereto.
9.4 ATTORNEYS' FEES: Borrower shall pay to the Bank all costs and expenses,
including but not limited to reasonable attorneys fees, incurred by Bank
in connection with the administration, enforcement, including any
bankruptcy, appeal or the enforcement of any judgment or any refinancing
or restructuring of this Agreement or any document, instrument or
agreement executed with respect to, evidencing or securing the
indebtedness hereunder.
9.5 NOTICES: All notices, payments, requests, information and demands which
either party hereto may desire, or may be required to give or make to
the other party hereto, shall be given or made to such party by hand
delivery or through deposit in the United States mail, postage prepaid,
or by facsimile
-16-
delivery, or to such other address as may be specified from time to time
in writing by either party to the other.
TO THE BORROWER: TO THE BANK:
HYCOR BIOMEDICAL, INC. BANK OF THE WEST doing business as
0000 Xxxxxxx Xxxxxx XXXXXX XXXXXXXXXX XXXX
Xxxxxx Xxxxx, XX 00000 Xxxxxxx Xxxxx Office (BBC)
Attn: Xxxxxxxx X. Xxxxx 0000 XxxXxxxxx Xxxxxxxxx
Chief Financial Officer Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
FAX: 000-000-0000 Vice President
FAX: 000-000-0000
9.6 WAIVER: Neither the failure nor delay by the Bank in exercising any
right hereunder or under any document, instrument or agreement mentioned
herein shall operate as a waiver thereof, nor shall any single or
partial exercise of any right hereunder or under any other document,
instrument or agreement mentioned herein preclude other or further
exercise thereof or the exercise of any other right; nor shall any
waiver of any right or default hereunder, or under any other document,
instrument or agreement mentioned herein, constitute a waiver of any
other right or default or constitute a waiver of any other default of
the same or any other term or provision.
9.7 CONFLICTING PROVISIONS: To the extent the provisions contained in this
Agreement are inconsistent with those contained in any other document,
instrument or agreement executed pursuant hereto, the terms and
provisions contained herein shall control. Otherwise, such provisions
shall be considered cumulative.
9.8 BINDING EFFECT; ASSIGNMENT: This Agreement shall be binding upon and
inure to the benefit of the Borrower and the Bank and their respective
successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the
prior written consent of the Bank. The Bank may sell, assign or grant
participation in all or any portion of its rights and benefits
hereunder. The Borrower agrees that, in connection with any such sale,
grant or assignment, the Bank may deliver to the prospective buyer,
participant or assignee financial statements and other relevant
information relating to the Borrower and any guarantor.
9.9 JURISDICTION: This Agreement, any notes issued hereunder, the rights of
the parties hereunder to and concerning the Collateral, and any
documents, instruments or agreements mentioned or referred to herein
shall be governed by and construed according to the laws of the State of
California without regard to conflict of law principles, to the
jurisdiction of whose courts the parties hereby submit.
9.10 WAIVER OF JURY TRIAL: THE BORROWER AND THE BANK EACH WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER
LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN
ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF
THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE BORROWER AND THE BANK
EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES
FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER
PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY
OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY
PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS,
-17-
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
9.11 COUNTERPARTS: This Agreement may be executed in any number of
counterparts and all such counterparts taken together shall be deemed to
constitute one and the same instrument.
9.12 HEADINGS: The headings herein set forth are solely for the purpose of
identification and have no legal significance.
9.13 ENTIRE AGREEMENT AND AMENDMENTS: This Agreement and all documents,
instruments and agreements mentioned herein constitute the entire and
complete understanding of the parties with respect to the transactions
contemplated hereunder. All previous conversations, memoranda and
writings between the parties pertaining to the transactions contemplated
hereunder not incorporated or referenced in this Agreement or in such
documents, instruments and agreements are superseded hereby. This
Agreement may be amended only by an instrument in writing signed by the
Borrower and the Bank.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first hereinabove written.
BANK: BORROWER:
BANK OF THE WEST DOING BUSINESS AS HYCOR BIOMEDICAL, INC.
UNITED CALIFORNIA BANK
BY /s/ Xxx Xxxxx
--------------------------------
BY:/s/ Xxxxx X. Xxxxxx NAME: Xxxxxxxx X. Xxxxx, Chief
------------------- Financial Officer &
NAME: Xxxxx X. Xxxxxx, Vice President Senior Vice President
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