1
LOAN AND SECURITY AGREEMENT
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THIS LOAN AND SECURITY AGREEMENT (this "Agreement"), made and entered into as of
the 15th day of April, 2003, by and between MVP 3, LP, a Delaware limited
partnership ("Borrower"), FIFTH THIRD BANK, FLORIDA, a Florida banking
corporation ("Fifth Third"), NEOGENOMICS, INC., a Florida corporation
("Corporate Guarantor"), XXXX XXXXXXX, an individual residing at 0000 Xxxxxxxxx
Xxx, Xxxxxx, XX 00000 ("Xxxxxxx"), XXXXX XXXXXXX (also known as Xxxxxxxx X.
Xxxxxxx), an individual residing at 0000 Xxxxxxxxxx Xxxxxxx, Xxxxxxx, XX 00000
("Xxxxxxx"), and XXXXXX XXXXX, an individual residing at 0000 Xxxxxxxxx Xxxxx,
Xxxxxx, XX 00000 ("Xxxxx", and collectively, jointly and severally with Xxxxxxx
and Xxxxxxx, referred to as "Individual Guarantors").
RECITALS
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A. Individual Guarantors are the sole limited partners of Borrower, and
the sole members of Borrower's general partner, Medical Venture Partners, LLC, a
Delaware limited liability company, and both Individual Guarantors and Borrower
have ownership interests in Corporate Guarantor by virtue of their ownership
interests in NeoGenomics, Inc., a Nevada corporation ("Parent"), which is the
parent and sole shareholder of Corporate Guarantor. Individual Guarantors and
Corporate Guarantor are sometimes referred to herein jointly, severally and
collectively as the "Guarantors".
B. Borrower desires to lend money to Corporate Guarantor to be used by
Corporate Guarantor for general working capital purposes, and has requested that
Fifth Third provide it with certain loan facilities, the proceeds of which will
be used solely to lend to Corporate Guarantor and to provide Borrower with
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working capital (but not to exceed Two Hundred Fifty Thousand Dollars
($250,000.00) for such purpose).
C. Corporate Guarantor will receive a direct benefit from the loans
made to Borrower by Fifth Third as described in this Agreement, inasmuch as it
is the ultimate recipient of such loan proceeds.
D. Individual Guarantors will receive both a direct and indirect benefit
from the loans made to Borrower by Fifth Third as described in this Agreement,
inasmuch as they would otherwise be required to personally provide all such
funds to Borrower and they also will receive stock, ownership rights and other
benefits from both Parent and Corporate Guarantor.
E. Fifth Third is willing to make the loans to Borrower described in this
Agreement upon and subject to the terms and conditions set forth herein.
PROVISIONS
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NOW, THEREFORE, for and in consideration of the agreements herein
contained, the parties hereby agree as follows:
l. INCORPORATION OF RECITALS. The Recitals portion of this Agreement
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is hereby incorporated by this reference as though it were fully set forth and
rewritten herein, and the affirmative statements therein contained shall be
deemed to be representations of Borrower, Corporate Guarantor and Individuals
Guarantors to Fifth Third which are hereby ratified and confirmed.
2. LOAN FACILITIES. Fifth Third hereby agrees to lend to Borrower (a) up to
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the maximum sum of Seven Hundred Fifty Thousand Dollars ($750,000.00)
(hereinafter referred to as the "Revolving Line of Credit"), and (b) up to the
maximum sum of Seven Hundred Fifty Thousand Dollars ($750,000.00) (hereinafter
referred to as the "Draw Loan", and, collectively with the Revolving Line of
Credit, referred to as the "Loans"), on and subject to the terms and conditions
hereinafter set forth. As used in this Agreement, the term "Liabilities" or
"Liability" shall mean the Loans and any and all other indebtedness, advances,
obligations, covenants, undertakings and liabilities of Borrower and Corporate
Guarantor (including amendments, restatements, modifications, extensions and
renewals thereof) to Fifth Third or any affiliate of Fifth Third Bancorp under
all documents now or hereafter executed by Borrower and/or Corporate Guarantor
in favor of (or acquired by) Fifth Third or any affiliate of Fifth Third Bancorp
(the "Loan Documents") or however created, direct or indirect, now existing or
hereafter arising, due or to become due, absolute or contingent, participated in
whole or in part, whether evidenced or created by promissory notes, agreements
or otherwise, in any manner acquired by or accruing to Fifth Third or any
affiliate of Fifth Third Bancorp, whether by agreement, assignment or otherwise,
as well as any and all obligations of Borrower or Guarantors to Fifth Third or
any affiliate of Fifth Third Bancorp, whether absolute, contingent or otherwise
and howsoever and whensoever (whether now or hereafter) created, including,
without limitation, (a) those created, arising, evidenced or acquired (including
all renewals, extensions and modifications thereof and substitutions therefor),
under or in connection with (i) any and all Rate Management Agreements, and (ii)
any and all cancellations, buy-backs, reversals, terminations or assignments of
any Rate Management Agreement, (b) obligations of another or others guaranteed
or endorsed by Borrower, and (c) whether or not presently contemplated by the
parties on the date hereof, including all costs and expenses incurred in the
collection of such indebtedness or the loan referred to herein, taxes levied,
insurance and repairs to or for the maintenance of the Collateral hereinafter
described. As used herein, "Rate Management Agreement" shall mean any
agreement, device or arrangement providing for payments which are related to
fluctuations of interest rates, exchange rates, forward rates, or equity prices,
including, but not limited to, dollar-denominated or cross-currency interest
rate exchange agreements, forward currency exchange agreements, interest rate
cap or collar protection agreements, forward rate currency or interest rate
options, puts and warrants, and any agreement pertaining to equity derivative
transactions (e.g., equity or equity index swaps, options, caps, floors, collars
and forwards), including without limitation any ISDA Master Agreement between
Borrower or any Guarantor and Fifth Third or any affiliate of Fifth Third
Bancorp, and any schedules, confirmations and documents and other confirming
evidence between the parties confirming transactions thereunder, all whether now
existing or hereafter arising, and in each case as amended, modified or
supplemented from time to time. As used in this Agreement, an "Advance" shall
mean a sum advanced by Fifth Third from time to time under either the Revolving
Line of Credit or the Draw Loan, and "Advances" shall mean all such sums
collectively. As used in this Agreement, "Availability" shall mean the maximum
amount permitted to be drawn by Borrower under the Draw Loan based upon the
value of collateral granted by the Individual Guarantors to secure such
Advances, as described in paragraph 11(c) of this Agreement and the Draw Note
(as defined in paragraph 2 of this Agreement). "Initial Availability" is One
Hundred Twenty-Five Thousand Dollars ($125,000.00), based upon delivery of One
Thousand One Hundred Sixty (1,160) shares of stock of Lenawee Bancorp, Inc.,
plus Eleven Thousand Three Hundred Twenty Dollars ($11,320.00) in cash delivered
to Fifth Third by Xxxxxxx.
3. TERMS OF LOANS. The specific provisions of the Revolving Line of
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Credit, including, but not limited to, the rate of interest, term, late charge,
prepayment rights, borrowing base limitations and default rate of interest, are
contained in that certain "Revolving Line of Credit Promissory Note" of even
date herewith from Borrower to Fifth Third (the "Line of Credit Note"), in the
form attached hereto as Exhibit A, as the same may be amended, restated,
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modified, extended and/or replaced from time to time. The specific provisions
of the Draw Loan, including, but not limited to, the rate of interest, term,
late charge, prepayment rights, conditions for draws and default rate of
interest, are contained in that certain "Draw Note" of even date herewith from
Borrower to Fifth Third (the "Draw Note"), in the form attached hereto as
Exhibit B, as the same may be amended, restated, modified, extended and/or
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replaced from time to time. The Line of Credit Note and the Draw Note are
sometimes collectively referred to herein as the "Notes".
4. EVIDENCE OF INDEBTEDNESS AND SECURITY INTEREST. The Loans described
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in paragraph 2 hereof shall be evidenced by the Line of Credit Note and the Draw
Note, as described in paragraph 3 hereof, each executed by Borrower in favor of
Fifth Third (collectively, the "Notes"). The Notes shall be secured by:
(a) Security Agreement executed by Borrower in favor of Fifth Third
dated of even date herewith, as the same may be amended, modified, restated,
replaced and extended from time to time, encumbering all business assets of
Borrower, to be delivered to Fifth Third concurrent with this Agreement;
(b) Security Agreement executed by Corporate Guarantor in favor of
Fifth Third dated of even date herewith, as the same may be amended, modified,
restated, replaced and extended from time to time, encumbering all business
assets of Corporate Guarantor, to be delivered to Fifth Third concurrent with
this Agreement;
(c) Guaranty executed by each of the Guarantors in favor of Fifth Third
dated of even date herewith, as the same may be amended, modified, restated,
replaced and extended from time to time, to be delivered to Fifth Third
concurrent with this Agreement;
(d) Collateral Assignment of Loan Documents executed by Borrower and
Corporate Guarantor in favor of Fifth Third dated of even date herewith, as the
same may be amended, modified, restated, replaced and extended from time to
time, to be delivered to Fifth Third concurrent with this Agreement;
(e) certain key-man life insurance policies required in accordance with
paragraph 11(d) of this Agreement and in the Draw Note, together with Collateral
Assignments of the same in the form attached hereto as Exhibit C and
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incorporated by reference herein;
(f) Lockbox and Dominion of Funds Agreement executed by Corporate
Guarantor in favor of Fifth Third dated of even date herewith, as the same may
be amended, modified, restated, replaced and extended from time to time, to be
delivered to Fifth Third concurrent with this Agreement;
(g) the property described below in this paragraph 4, and
(h) such other and additional instruments as may now or hereafter be
granted by Borrower or any Guarantor to Fifth Third, including, without
limitation, the collateral hereafter granted by Individual Guarantors to support
Advances under the Draw Note as further described in paragraph 11(c) of this
Agreement ("Additional Collateral").
To secure the performance of this Agreement and subject only to Permitted
Liens, Borrower hereby grants in favor of Fifth Third a continuing security
interest in all accounts, equipment, inventory, goods, equipment, trademarks and
tangible and intangible personal property of Borrower (as such terms are defined
under the Uniform Commercial Code enacted in the State of Florida, as amended
from time to time ("UCC")), regardless of whether the foregoing is now owned or
existing or is owned, acquired or arises hereafter and the proceeds and products
of all of the foregoing including, without limitation, proceeds from all eminent
domain or condemnation awards or insurance covering the described property.
Borrower hereby authorizes Fifth Third to file any and all UCC financing
statements, amendments, continuations and/or modifications which Fifth Third
deems necessary or desirable to create, maintain and/or perfect a valid first
security interest created herein in such property.
As used herein, the term "Collateral" shall include all documents,
instruments and property described in (a) through (j) above (sometimes referred
to as the "Loan Documents"), all Additional Collateral, and all of Borrower's
and/or Corporate Guarantor's right, title and interest in any sums, documents or
instruments at any time credited by or due from Fifth Third or any affiliate of
Fifth Third Bancorp to Borrower or Corporate Guarantor or in the possession of
Fifth Third or any affiliate of Fifth Third Bancorp, including, without
limitation, deposits. Upon the occurrence of any default by Borrower, Borrower
and each Guarantor hereby authorize Fifth Third to appropriate and use any of
the Collateral or proceeds of the Collateral referred to in this paragraph 4 in
which Fifth Third has a security interest or of which Fifth Third or any
affiliate of Fifth Third Bancorp has possession and any of the sums, documents
or instruments referred to in this sentence or the proceeds thereof for
application against the Liabilities. Borrower shall not sell, assign, transfer
or grant a security interest to any other person in, or otherwise encumber, the
Collateral and sums covered by this paragraph 4 except in favor of Fifth Third.
Corporate Guarantor shall not sell, assign, transfer or grant a security
interest to any other person in, or otherwise encumber, the Collateral and sums
covered by this paragraph 4 except in favor of Fifth Third or in favor of
Borrower as collaterally assigned to Fifth Third, for Permitted Liens, or as
otherwise permitted under any of the Loan Documents. As used herein the term
"Person" includes natural persons, corporations (which shall be deemed to
include business trusts), limited liability companies, associations and
partnerships. As used herein the phrase "Permitted Liens" means the following:
(a) liens for taxes, fees, assessments or other governmental charges or levies,
either not yet due and payable or being contested in good faith by appropriate
proceedings with appropriate reserves for full payment of the same; (b) liens
(i) upon or in any equipment acquired or held by Borrower or Corporate Guarantor
to secure the purchase price of such equipment or indebtedness incurred solely
for the purpose of financing the acquisition of such equipment, but not to
exceed Fifty Thousand Dollars ($50,000.00) in the aggregate, or (ii) existing on
such equipment at the time of its acquisition, provided that the lien is
confined solely to the property so acquired and improvements thereon, and the
proceeds of such equipment, and provided, further, that the same has been
disclosed to Fifth Third in writing prior to the execution of this Agreement;
(c) leases or subleases and licenses or sublicenses granted to others in the
ordinary course of Corporate Guarantor's business not interfering in any
material respect with the business or financial condition of Corporate Guarantor
and which do not, in the aggregate, require payments by Corporate Guarantor in
excess of Fifty Thousand Dollars ($50,000.00), and any interest or title of a
lessor, licensor or under any lease or license provided that such leases,
subleases, licenses and sublicenses do not prohibit the grant of the security
interest granted hereunder; and (d) liens incurred in connection with the
extension, renewal or refinancing of the indebtedness secured by liens of the
type described in clauses (a) through (c) above, provided that any extension,
renewal or replacement lien shall be limited to the property encumbered by the
existing lien and provided that the principal amount of the indebtedness being
extended, renewed or refinanced does not increase.
5. FINANCIAL STATEMENTS, BOOKS AND RECORDS.
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(a) Borrower shall furnish to Fifth Third its opening balance sheet
reflecting the net worth of Borrower, which shall be certified by Borrower or
otherwise in a manner satisfactory to Fifth Third. Borrower shall also furnish
Fifth Third with copies of all of its federal tax returns (with all schedules)
and all reports filed by it with any governmental entity or agency within ten
(10) days of filing. Notwithstanding the foregoing, Fifth Third may, at its
option, upon the occurrence of any default by Borrower or Corporate Guarantor,
require Borrower to furnish updated financial statements during the term of the
loan on a periodic basis together with such other financial information as may
from time to time be required by Fifth Third, all in form and detail reasonably
satisfactory to Fifth Third.
(b) As soon as practicable and in any event within forty-five (45) days
after the end of each of the first three fiscal quarters of each fiscal year
Corporate Guarantor shall furnish to Fifth Third, either (i) a copy of a report
on Form 10-Q, or any successor form, and any amendments thereto, filed by the
Parent with the United States Securities & Exchange Commission ("SEC") with
respect to the immediately preceding fiscal quarter or (ii) an unaudited
consolidated balance sheet of Parent and Corporate Guarantor as of the close of
such fiscal quarter and unaudited consolidated statements of income,
stockholders' equity and cash flows for the fiscal quarter then ended and that
portion of the fiscal year then ended, including the notes thereto, all in
reasonable detail setting forth in comparative form the corresponding figures
for the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the preceding fiscal year and prepared in accordance
with generally accepted accounting principles ("GAAP"), and, if applicable,
containing disclosure of the effect on the financial position or results of
operations of any change in the application of accounting principles and
practices during the period, and certified by the Chief Executive Officer or
Chief Financial Officer of the Parent to present fairly in all material respects
the financial condition of the Parent and Corporate Guarantor as of their
respective dates and the results of operations of the Parent and Corporate
Guarantor for the respective periods then ended, subject to normal year end
adjustments.
(c) As soon as practicable and in any event within ninety (90) days
after the end of each fiscal year Corporate Guarantor shall furnish to Fifth
Third, either (i) a copy of a report on Form 10-K, or any successor form, and
any amendments thereto, filed by Parent with the SEC with respect to the
immediately preceding fiscal year or (ii) an audited consolidated balance sheet
of the Parent and Corporate Guarantor as of the close of such fiscal year and
audited consolidated statements of income, stockholders' equity and cash flows
for the fiscal year then ended, including the notes thereto, all in reasonable
detail setting forth in comparative form the corresponding figures for the
preceding fiscal year and prepared by an independent certified public accounting
firm in accordance with GAAP and, if applicable, containing disclosure of the
effect on the financial position or results of operation of any change in the
application of accounting principles and practices during the year.
(d) Corporate Guarantor and Borrower shall also provide Fifth Third on
or before the 20th day of each calendar month, a Borrowing Base Certificate (as
defined in the Line of Credit Note) and an aging (based on date of invoice) of
its Accounts through the end of the prior calendar month, such report to be in
form reasonably satisfactory to Fifth Third and certified as true, complete and
correct by both Corporate Guarantor's and Borrower's chief financial officer.
(e) Corporate Guarantor shall also furnish Fifth Third with copies of
all federal tax returns (with all schedules) of it and/or Parent (if
consolidated) and all reports filed by it or Parent with any governmental entity
or agency (including, without limitation, the SEC) within ten (10) days of
filing. Notwithstanding the foregoing, Fifth Third may, at its option, upon the
occurrence of any default by Borrower or Corporate Guarantor, require Corporate
Guarantor to furnish updated financial statements during the term of the loan on
a periodic basis together with such other financial information as may from time
to time be required by Fifth Third, all in form and detail satisfactory to Fifth
Third.
(f) Individual Guarantors shall each furnish to Fifth Third their
respective annual federal income tax returns (with all schedules) within ten
(10) days of filing and shall provide Fifth Third, at least annually on or
before April 30 of each calendar year, and at such other times as may be
requested by Fifth Third, with a personal financial statement in form and with
certification satisfactory to Fifth Third.
(g) In addition to the foregoing, Borrower and Guarantors shall make or
cause to be made available to Fifth Third or its representative(s) such books,
records and reports (including, but not limited to, income tax returns) that in
any way may reasonably pertain to said party's financial condition or the loan
herein made by Fifth Third upon reasonable request therefor from time to time
made by Fifth Third.
6. FINANCIAL COVENANTS. Beginning with the calendar quarter ending
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June 30, 2003, and continuing with each calendar quarter thereafter until all
Loans are paid in full and there is no credit available to Borrower from Fifth
Third, Corporate Guarantor's working capital as a percentage of its gross
revenues shall not exceed forty percent (40%), calculated as follows: Corporate
Guarantor's (a) current assets less current liabilities determined pursuant to
GAAP divided by (b) Corporate Guarantor's gross revenues for the preceding four
(4) quarters, determined pursuant to GAAP. This ratio shall be measured as of
the end of each calendar quarter on a rolling four (4) quarter basis and
calculation of the same shall be prepared by Corporate Guarantor and submitted
to Fifth Third upon the earlier of (y) within forty-five (45) days after the end
of each calendar quarter except the last and within ninety (90) days after the
last calendar quarter or (z) three (3) business days of the filing of any
quarterly or annual reports of either Corporate Guarantor or Parent with the
SEC. In the event Corporate Guarantor fails to comply with any financial
covenant, availability under the Revolving Line of Credit shall be suspended
until such time as Corporate Guarantor demonstrates it has achieved compliance
and has paid a covenant waiver fee in an amount established by Fifth Third for
any such waiver.
7. FEES. On or before Closing, Borrower shall pay to Fifth Third: (a)
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a bank processing fee in the amount of Six Hundred Fifty Dollars ($650.00), (b)
a commitment fee for the Revolving Line of Credit in the amount of Fifteen
Thousand Dollars ($15,000.00), and (c) a commitment fee for the Draw Note in the
amount of the greater of two percent (2%) of the total Initial Availability
under the Draw Note or Five Thousand Dollars ($5,000.00). Borrower shall also
pay at Closing all out-of-pocket expenses incurred by Fifth Third in connection
with the Loans, including, without limitation, attorneys' fees and expenses,
documentary stamp taxes and recording fees. In addition, at such time as there
is additional Availability under the Draw Note, Borrower shall pay Fifth Third,
concurrent with the first Advance under the Draw Note from such additional
Availability, all out-of-pocket expenses incurred by Bank in connection with
such Additional Collateral (including, without limitation, attorneys' fees and
expenses, documentary stamp taxes and recording fees), together with a
commitment fee in the amount of the greater of two percent (2%) of such
additional Availability or Five Thousand Dollars ($5,000.00), provided that the
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total commitment fee payable by Borrower under the Draw Note shall not exceed
Fifteen Thousand Dollars ($15,000.00).
8. BORROWER'S REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS. Borrower
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hereby represents, warrants and covenants to Fifth Third that all of the
following statements are true and correct in all material respects and shall
continue to be so until all Liabilities are paid in full and Fifth Third has no
obligation to make further Advances:
(a) Borrower is duly organized and validly existing under the laws of
the State of Delaware. Borrower is duly qualified and is authorized to do
business in all other states and jurisdictions where the character of its
property or the nature of its activities make such qualification necessary;
(b) Borrower has the right and power and is duly authorized and
empowered to enter into, execute, deliver and perform this Agreement and each of
the other Loan Documents to which it is a party. The execution, delivery and
performance of this Agreement and each of the other Loan Documents to which it
is a party have been duly authorized by all necessary action and do not and will
not, to the best of Borrower's knowledge, after reasonable inquiry, contravene,
violate, result in a breach of or constitute a default under any of Borrower's
governing documents, any applicable law, rule, regulation, order, writ,
judgment, injunction, or decree, or any indenture or loan or credit agreement of
Borrower;
(c) This Agreement is, and each of the other Loan Documents to which it
is a party when delivered under this Agreement will be, a legal, valid and
binding obligation of Borrower enforceable against it in accordance with their
respective terms, and no notice to or consent of any governmental body or any
Person is needed in connection with this Agreement or any Advance under the
Loans;
(d) To the best of Borrower's knowledge, after reasonable inquiry,
Borrower has, and is in good standing with respect to, all governmental
consents, approvals, authorizations, permits, certificates, inspections and
franchises necessary to continue to conduct its business as heretofore and/or
proposed to be conducted by it and to own stock of and/or lend money to Parent
and/or Corporate Guarantor as now owned and/or proposed to be owned by it;
(e) Borrower is not a party or subject to any contract, agreement,
charter or other restriction, which materially adversely affects its business
or the lending of money to or ownership of stock of Parent and/or Corporate
Guarantor. Borrower is not a party or subject to any contract or agreement
which restricts its right or ability to incur any indebtedness which would
prohibit the execution of or compliance with this Agreement by Borrower.
Borrower has not agreed or consented to cause, nor will Borrower permit in the
future (upon the happening of a contingency or otherwise) the Collateral to be
subject to a lien that is not permitted under this Agreement;
(f) There are no actions, suits, proceedings or investigations pending,
or to the knowledge of Borrower, threatened, against or affecting Borrower, or
the business, operations, properties, prospects, profits or condition of
Borrower, in any court or before any governmental authority or arbitration board
or tribunal. Borrower is not in default with respect to any order, writ,
injunction, judgment, decree or rule of any court, governmental authority or
arbitration board or tribunal;
(g) Neither the financial statements of Borrower, this Agreement nor
any other written statement of Borrower to Fifth Third, contain any untrue
statement of a material fact or omit a material fact necessary to make the
statements contained therein or herein not misleading. There is no material
fact which Borrower has failed to disclose to Fifth Third in writing which
adversely affects or, so far as Borrower can now foresee, will adversely affect
the business, prospects, profits or condition (financial or otherwise) of
Borrower or Corporate Guarantor or the ability of Borrower or Corporate
Guarantor to perform this Agreement;
(h) To the best of Borrower's knowledge, Borrower and Corporate
Guarantor have duly complied with, and their respective property and business
operations are in compliance in all material respects with, and will maintain
compliance in all material respects with, the provisions of all federal, state
and local laws, rules and regulations applicable to Borrower and/or Corporate
Guarantor and their respective property or the conduct of their respective
business, and there have been no citations, notices or orders of noncompliance
issued to Borrower or Corporate Guarantor under any such law, rule or
regulation, including, without limitation, any demand for reimbursement,
recoupment and/or setoff from any governmental entity or Private Third Party
Payor rendering payment to Corporate Guarantor. As used herein, "Private Third
Party Payor" includes any insurance product, self-insured employer, or other
source of payment for health care services which is not paid directly by a
governmental entity under a governmental program covering the provision of
health care and/or laboratory services;
(i) Borrower shall use the loan proceeds solely for the purposes
described herein and as represented in Borrower's loan request;
(j) Borrower and/or Individual Guarantors have and will have the
ability to appoint a majority of the directors of Parent;
(k) Borrower will not agree to any termination or modification of that
certain Shareholders' Agreement dated of even or approximately even date
herewith executed by and among Parent, Corporate Guarantor, Individual
Guarantors, Borrower and Xxxxxxx X. Xxxx, M.D. without the prior written consent
of Fifth Third;
(l) Borrower has not employed or engaged any broker, finder or agent
who may claim a commission or fee on the loan transaction described in this
Agreement and Borrower hereby agrees to indemnify and hold Fifth Third harmless
from any such claim or demand and litigation resulting therefrom;
(m) Borrower shall, from time to time, upon request of Fifth Third,
furnish Fifth Third with such information and documents reasonably necessary to
protect Fifth Third's interest in the Collateral and to effectuate the terms of
this Agreement and the other Loan Documents;
(n) No event has occurred and no condition exists which would, upon the
execution and delivery of this Agreement or Borrower's performance hereunder,
constitute an event of default as hereinafter described. Borrower is not in
default, and no event has occurred and no conditions exist which constitute, or
which with the passage of time or the giving of notice or both would constitute,
a default in the payment of any indebtedness of Borrower to any person for money
borrowed which could have a material adverse effect on Borrower;
(o) Borrower has and will maintain good and marketable title in the
items of property described herein as Collateral owned by Borrower free and
clear of any liens, encumbrances or adverse claims, whether legal or equitable,
except for Permitted Liens or as agreed in writing by Fifth Third. Borrower
shall at all times maintain such insurance, to such extent and against such
risks, including, fire, theft, workmen's compensation claims, general liability
and property damage, as is customary with companies in the same or similar
business or as required by Bank, providing a schedule of same to Bank;
(p) Borrower will not incur, create, assume or permit to exist any
indebtedness or liability for borrowed money which could constitute a lien upon
or create a security interest in its assets except (i) in favor of Fifth Third,
or (ii) Permitted Liens;
(q) Borrower will not directly or indirectly guarantee or otherwise be
responsible for payment or performance of the obligations of any other Person
except in favor of Fifth Third;
(r) Borrower will not sell, transfer or otherwise dispose of all or a
substantial part of its assets to any Person; will not consolidate or merge with
any other Person, or acquire all or substantially all of the properties or
assets of any other Person; and will not enter into any arrangement with any
Person whereby it shall sell or transfer and then lease back any kind of
property used in its business, whether now owned or hereafter acquired;
(s) The financial statements and other information supplied by
Borrower, Individual Guarantors and/or Corporate Guarantor for the Loans were in
all material respects correct on the date supplied (subject to normal year end
audit adjustments), and since their dates no material adverse change in the
financial condition of Borrower, Individual Guarantors and/or Corporate
Guarantor has occurred;
(t) Borrower will not sell or offer to sell or otherwise transfer or
encumber all or a part of the Collateral owned by Borrower without written
consent of Fifth Third, except if the same is replaced by substitute Collateral
of at least equal value or as otherwise permitted under this Agreement; Borrower
will keep the Collateral owned by Borrower in good order and repair and will not
destroy the Collateral. Fifth Third, at its option, may discharge taxes, liens
or other encumbrances placed on the Collateral and may pay for the preservation
of the Collateral. Borrower agrees to reimburse Fifth Third, upon demand, for
any such expenditures;
Each request for an Advance made by Borrower pursuant to this Agreement or
any of the other Loan Documents shall constitute: (i) an automatic
representation and warranty by Borrower to Fifth Third that there does not then
exist any event of default; and (ii) a reaffirmation as of the date of said
request that all of the representations and warranties of Borrower contained in
this Agreement and the other Loan Documents are true and correct in all material
respects. The representations and warranties of Borrower contained in this
Agreement or any of the other Loan Documents shall survive the execution,
delivery and acceptance thereof by Fifth Third and the parties thereof and the
Closing of the transactions described therein or related thereto.
9. CORPORATE GUARANTOR'S REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS.
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Corporate Guarantor hereby represents, warrants and covenants to Fifth Third
that all of the following statements are true and correct in all material
respects and shall continue to be so until all Liabilities are paid in full and
Fifth Third has no obligation to make further Advances:
(a) Corporate Guarantor is duly organized and validly existing under
the laws of the State of Florida. Corporate Guarantor is duly qualified and is
authorized to do business in all other states and jurisdictions where the
character of its property or the nature of its activities make such
qualification necessary;
(b) Corporate Guarantor has the right and power and is duly authorized
and empowered to enter into, execute, deliver and perform this Agreement and
each of the other Loan Documents to which it is a party. The execution,
delivery and performance of this Agreement and each of the other Loan Documents
to which it is a party have been duly authorized by all necessary action and do
not and will not, to the best of Corporate Guarantor's knowledge, after
reasonable inquiry, contravene, violate, result in a breach of or constitute a
default under any of Corporate Guarantor's governing documents, any applicable
law, rule, regulation, order, writ, judgment, injunction, or decree, or any
indenture or loan or credit agreement of Corporate Guarantor;
(c) This Agreement is, and each of the other Loan Documents to which it
is a party when delivered under this Agreement will be, a legal, valid and
binding obligation of Corporate Guarantor enforceable against it in accordance
with their respective terms, and no notice to or consent of any governmental
body or any Person is needed in connection with this Agreement or any Advance
under the Loans;
(d) To the best of Corporate Guarantor's knowledge, after reasonable
inquiry, Corporate Guarantor has, and is in good standing with respect to, all
governmental consents, approvals, authorizations, permits, certificates,
inspections and franchises necessary to continue to conduct its business as
heretofore and/or proposed to be conducted by it;
(e) Corporate Guarantor is not a party or subject to any contract,
agreement, charter or other restriction, which materially adversely affects
its business. Corporate Guarantor is not a party or subject to any contract or
agreement which restricts its right or ability to incur any indebtedness which
would prohibit the execution of or compliance with this Agreement by Corporate
Guarantor. Corporate Guarantor has not agreed or consented to cause, nor will
Corporate Guarantor permit in the future (upon the happening of a contingency or
otherwise) the Collateral to be subject to a lien that is not permitted under
this Agreement;
(f) Except as set forth in Schedule 9(f) attached hereto, there are no
actions, suits, proceedings or investigations pending, or to the knowledge of
Corporate Guarantor, threatened, against or affecting Corporate Guarantor, or
the business, operations, properties, prospects, profits or condition of
Corporate Guarantor, in any court or before any governmental authority or
arbitration board or tribunal. Corporate Guarantor is not in default with
respect to any order, writ, injunction, judgment, decree or rule of any court,
governmental authority or arbitration board or tribunal;
(g) Neither the financial statements of Corporate Guarantor, this
Agreement nor any other written statement of Corporate Guarantor to Fifth
Third, contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein or herein not misleading.
There is no material fact which Corporate Guarantor has failed to disclose to
Fifth Third in writing which adversely affects or, so far as Corporate Guarantor
can now foresee, will adversely affect the business, prospects, profits or
condition (financial or otherwise) of Borrower or Corporate Guarantor or the
ability of Borrower or Corporate Guarantor to perform this Agreement;
(h) To the best of Corporate Guarantor's knowledge, Corporate Guarantor
has duly complied with, and its property and business operations are in
compliance in all material respects with, and will maintain compliance in all
material respects with, the provisions of all federal, state and local laws,
rules and regulations applicable to Corporate Guarantor and its property or the
conduct of its business, including, without limitation, federal, state and local
laws, rules and regulations relating or pertaining to data protection,
confidentiality, safe working conditions, billing and collections, referrals and
laboratory and manufacturing practices, and the purchase, storage, movement, use
and disposal of hazardous or potentially hazardous substances used in connection
with research work and manufacturing operations (including radioactive compounds
and infectious disease agents). There have been no citations, notices or orders
of noncompliance issued to Corporate Guarantor under any such law, rule or
regulation, including, without limitation, any demand for reimbursement,
recoupment and/or setoff from any governmental entity or Private Third Party
Payor rendering payment to Corporate Guarantor. As used herein, "Private Third
Party Payor" includes any insurance product, self-insured employer, or other
source of payment for health care services which is not paid directly by a
governmental entity under a governmental program covering the provision of
health care and/or laboratory services;
(i) Corporate Guarantor shall use the loan proceeds solely for working
capital purposes as described herein and as represented in Borrower's loan
request;
(j) Borrower and/or Individual Guarantors have been and will have the
ability to appoint a majority of the directors of Parent;
(k) Corporate Guarantor has not employed or engaged any broker, finder
or agent who may claim a commission or fee on the loan transaction described in
this Agreement and Corporate Guarantor hereby agrees to indemnify and hold Fifth
Third harmless from any such claim or demand and litigation resulting
therefrom;
(l) Corporate Guarantor shall, from time to time, upon request of Fifth
Third, furnish Fifth Third with such information and documents reasonably
necessary to protect Fifth Third's interest in the Collateral and to effectuate
the terms of this Agreement and the other Loan Documents;
(m) No event has occurred and no condition exists which would, upon the
execution and delivery of this Agreement or Corporate Guarantor's performance
hereunder, constitute an event of default as hereinafter described. Corporate
Guarantor is not in default, and no event has occurred and no conditions exist
which constitute, or which with the passage of time or the giving of notice or
both would constitute, a default in the payment of any indebtedness of Corporate
Guarantor to any person for money borrowed which could have a material adverse
effect on Corporate Guarantor;
(n) Corporate Guarantor has and will maintain good and marketable title
in the items of property described herein as Collateral free and clear of any
liens, encumbrances or adverse claims, whether legal or equitable, except for
Permitted Liens or as agreed in writing by Fifth Third. Corporate Guarantor
shall at all times maintain such insurance, to such extent and against such
risks, including, fire, theft, workmen's compensation claims, general liability
and property damage, as is customary with companies in the same or similar
business or as required by Bank, providing a schedule of same to Bank;
(o) Corporate Guarantor will not incur, create, assume or permit to
exist any indebtedness or liability for borrowed money which could constitute a
lien upon or create a security interest in its assets except (i) in favor of
Fifth Third or Borrower, (ii) Permitted Liens or (iii) for taxes and assessments
which may be a lien but are not due and payable;
(p) Corporate Guarantor will not directly or indirectly guarantee or
otherwise be responsible for payment or performance of the obligations of any
other Person except in favor of Fifth Third;
(q) Corporate Guarantor will not sell, transfer or otherwise dispose of
all or a substantial part of its assets to any Person; will not consolidate or
merge with any other Person, or acquire all or substantially all of the
properties or assets of any other Person unless, with respect to any merger, (i)
such Person is organized under the law of the United States or one of its
states, (ii) the Corporate Guarantor is the corporation surviving such merger,
and (iii) immediately prior to and after giving effect to such merger, no
Default or Event of Default exists or would exist; will not enter into any
arrangement with any Person whereby it shall sell or transfer and then lease
back any kind of property used in its business, whether now owned or hereafter
acquired; and will not, without the prior written consent of Fifth Third,;
(r) The financial statements and other information supplied by Borrower
and/or Corporate Guarantor for the Loans were in all material respects correct
on the date supplied (subject to normal year end audit adjustments), and since
their dates no material adverse change in the financial condition of Borrower
and/or Corporate Guarantor has occurred;
(s) Corporate Guarantor will not sell or offer to sell or otherwise
transfer or encumber all or a part of the Collateral owned by Corporate
Guarantor without written consent of Fifth Third or as otherwise permitted by
this Agreement, except if the same is replaced by substitute Collateral of at
least equal value; Corporate Guarantor will keep the Collateral owned by
Corporate Guarantor in good order and repair and will not destroy the
Collateral. Fifth Third, at its option, may discharge taxes, liens or other
encumbrances placed on the Collateral and may pay for the preservation of the
Collateral. Corporate Guarantor agrees to reimburse Fifth Third, upon demand,
for any such expenditures;
(t) Corporate Guarantor has not received notice from any governmental
entity (including federal, state or local) that Corporate Guarantor has received
a material overpayment on accounts, which material overpayment (in excess of any
related provision for the same on that person's financial statements and
records) would decrease the overall value of the accounts of the Corporate
Guarantor by in excess of Twenty-Five Thousand Dollars ($25,000.00);
(u) Corporate Guarantor will promptly and immediately notify Fifth
Third upon receipt of any notice of overpayment of Twenty-Five Thousand Dollars
($25,000.00) or more in excess of the related provision on the books of the
affected person ("Extraordinary Overpayment") and of any attempt by any
governmental entity or any Private Third Party Payor to recoup such
Extraordinary Overpayment. As used herein, "Private Third Party Payor" includes
any insurance product, self-insured employer, or other source of payment for
health care services which is not paid directly by a governmental entity under a
governmental program covering the provision of health care and/or laboratory
services.
Each request for an Advance made by Borrower pursuant to this Agreement or
any of the other Loan Documents shall constitute: (i) an automatic
representation and warranty by Corporate Guarantor to Fifth Third that there
does not then exist any event of default; and (ii) a reaffirmation by Corporate
Guarantor as of the date of said request that all of the representations and
warranties of Corporate Guarantor contained in this Agreement and the other Loan
Documents are true and correct in all material respects. The representations
and warranties of Corporate Guarantor contained in this Agreement or any of the
other Loan Documents shall survive the execution, delivery and acceptance
thereof by Fifth Third and the parties thereof and the Closing of the
transactions described therein or related thereto.
10. EXISTENCE AND AUTHORITY; OTHER DOCUMENTS. At or prior to Closing,
-----------------------------------------
Borrower shall furnish to Fifth Third:
(a) A true, correct and complete copy of all governing documents of
Borrower and all amendments thereto, certified by the Secretary of State or
other appropriate official of its jurisdiction of formation, or by the general
partner of Borrower for documents not required to be filed;
(b) A true, correct and complete copy of all governing documents of
Corporate Guarantor and all amendments thereto, certified by the Secretary of
State or other appropriate official of its jurisdiction of incorporation, or by
the secretary of Corporate Guarantor for documents not required to be filed;
(c) Certified copy of resolutions and incumbency certificates from
Borrower authorizing the execution, delivery and consummation of the
transactions contemplated by this Agreement and all other documents or
instruments to be executed and delivered in conjunction herewith;
(d) Certified copy of resolutions and incumbency certificates from
Corporate Guarantor authorizing the execution, delivery and consummation of the
transactions contemplated by this Agreement and all other documents or
instruments to be executed and delivered in conjunction herewith;
(e) A certificate issued by the Secretary of State or other appropriate
official of Corporate Guarantor's jurisdiction of incorporation evidencing
Corporate Guarantor's authority to do business; and
(d) Such other documents, instruments, certificates, agreements or
information as Fifth Third shall request in connection with the matters and
transactions contemplated by this Agreement and the other Loan Documents.
11. ADDITIONAL CONDITIONS TO CLOSING AND/OR ADVANCES.
-----------------------------------------------------
(a) Control of Parent. At Closing, Borrower must demonstrate to the
-------------------
sole satisfaction of Fifth Third and its counsel, that Borrower, collectively
with Individual Guarantors and Medical Venture Partners, LLC (the general
partner of Borrower), has control of, or has the ability to assume control of,
the Board of Directors of Parent, and must at all times until the Liabilities
are paid in full and Fifth Third has no obligation to make any further Advances,
maintain such control or ability to assume control. Borrower shall provide
additional ongoing evidence of such control and/or ability to control to Fifth
Third within thirty (30) days of Fifth Third's request for the same.
(b) Borrowing Base. No Advances will be made under the Revolving Line
---------------
of Credit if such amount, together with all outstanding and unpaid advances
under the Revolving Line of Credit, would exceed the Borrowing Base, as defined
in the Line of Credit Note.
(c) Additional Collateral. No Advances will be made under the Draw
----------------------
Loan in excess of the Availability. The amount of Availability shall be equal
to twice the lending value (calculated by Fifth Third pursuant to its standard
lending policies in effect from time to time) of Additional Collateral provided
by the Individual Guarantors from time to time. Collateral specifically
described in paragraph 4 shall not constitute Additional Collateral or create
any Availability in excess of the Initial Availability. Availability shall be
increased from time to time in increments of at least Two Hundred Fifty Thousand
Dollars ($250,000.00) or such lesser amount as may be acceptable to Fifth Third,
with Additional Collateral provided in increments of at least One Hundred
Twenty-Five Thousand Dollars ($125,000.00) or such lesser amount as may be
acceptable to Fifth Third. All Additional Collateral must be acceptable to
Fifth Third in its sole discretion. The delivery of Additional Collateral shall
not create Availability unless and until Fifth Third shall have received such
additional documents, instruments and/or certifications as it shall deem
necessary to create, perfect and/or maintain a security interest and/or lien on
such Additional Collateral in favor of Fifth Third.
(d) Key-Man Life Insurance. Upon the earlier of thirty (30) days after
----------------------
Closing or any increase in Availability under the Draw Note in excess of Two
Hundred Fifty Thousand Dollars ($250,000.00), Borrower will obtain key-man life
insurance in an amount at least equal to Seven Hundred Fifty Thousand Dollars
($750,000.00) in the aggregate on the lives of the Individual Guarantors, naming
Fifth Third as beneficiary to the extent of amounts owed from time to time
under the Draw Loan, and shall deliver to Fifth Third a Collateral Assignment of
Life Insurance in the form of Exhibit C hereto for such policy(ies). Fifth
---------
Third covenants and agrees that it shall only seek and retain from any such
policy proceeds equal to the then outstanding amounts due and payable under the
Draw Note.
(e) Lockbox. At Closing, Corporate Guarantor shall execute and deliver
-------
to Fifth Third, and shall thereafter at all times until the Liabilities are paid
in full and Fifth Third has no obligation to make any Advances, maintain an
agreement pursuant to which all accounts receivable payable to Corporate
Guarantor are deposited into a lockbox over which Fifth Third has dominion.
Such agreement shall be irrevocable as to all accounts receivable debtors other
-----
than governmental agencies and/or payors.
----
(f) Dividends. Any and all dividends payable by Parent to Borrower
---------
and/or Medical Venture Partners, LLC shall be payable to Fifth Third to be
applied towards principal, interest and fees accruing under the Draw Note, in
such order as Fifth Third may in its sole discretion determine.
(g) Payments from Corporate Guarantor to Borrower. Any and all
--------------------------------------------------
interest, principal and late fees paid by Corporate Guarantor to Borrower and/or
Individual Guarantors under or pursuant to the terms and conditions of any
loan(s) made by Borrower to Corporate Guarantor and/or Individual Guarantors
(other than interest payments made by Corporate Guarantor to Borrower in excess
of those interest payments owed by Borrower to Fifth Third) shall be payable
directly to Fifth Third, to be applied by Fifth Third towards payment due under
the Notes, in such order and manner as Fifth Third may determine in its sole
discretion.
(h) Distribution of Advances. All Advances made hereunder pursuant to
-------------------------
the Revolving Line of Credit shall be deposited into an account maintained by
Borrower with Fifth Third and then immediately transferred to an account
-----------
maintained by Corporate Guarantor with Fifth Third. Borrower shall identify
specifically the purpose for each Advance made hereunder pursuant to the Draw
Loan, and Advances to be loaned to Corporate Guarantor shall be deposited into
an account maintained by Borrower with Fifth Third and then immediately
-----------
transferred to an account maintained by Corporate Guarantor with Fifth Third.
All Advances made hereunder pursuant to the Draw Loan which are not to be loaned
---
to Corporate Guarantor (such Advances not to exceed Two Hundred Fifty Thousand
Dollars ($250,000.00) in the aggregate) shall be deposited into an account
maintained by Borrower with Fifth Third.
12. BORROWER'S AFFIRMATIVE AGREEMENTS. In addition to any other
-----------------------------------
covenants and agreements of Borrower hereunder, Borrower agrees that from the
date hereof and until payment in full of all Liabilities and termination of
Fifth Third's obligation to make Advances, unless Fifth Third shall otherwise
consent in writing, it shall (a) cause to be done all things reasonably needed
to preserve its rights and franchises and make good faith efforts to comply with
all laws applicable to it; continue to conduct its business substantially as it
has during the present year or as it has represented same to Fifth Third; and,
at all times, maintain such insurance, to such extent and against such risks,
including, fire, theft, workmen's compensation claims, general liability and
property damage, as is customary with companies in the same or similar business,
providing a schedule of same to Fifth Third; (b) promptly pay all of its
obligations, and all taxes, assessments and governmental charges imposed upon it
and its business operations before they are in default, as well as all lawful
claims for labor, materials and supplies or otherwise which, if unpaid, might
become a lien upon its properties; (c) promptly notify Fifth Third of any
default by Borrower or Corporate Guarantor relating to any indebtedness of
Borrower or Corporate Guarantor or any material, contractual obligation of
Borrower or Corporate Guarantor; (d) protect, indemnify, defend and save
harmless, Fifth Third, any affiliate of Fifth Third Bancorp, and their
respective directors, officers, agents and employees from and against any and
all liability, expense or damage of any kind or nature and from any suits,
claims or demands, including reasonable legal fees and expenses on account of
any matter or thing or action or failure to act of Fifth Third or such affiliate
of Fifth Third Bancorp, whether in suit or not, arising out of this Agreement or
any Loan Documents or Security Instrument (as defined in either of the Notes) or
in connection herewith or therewith unless said suit, claim or damage is caused
by the sole negligence or willful malfeasance of Fifth Third or such affiliate
of Fifth Third Bancorp; (e) establish and maintain its primary depository
relationship with Fifth Third; and (f) at Fifth Third's request, promptly
execute or cause to be executed and deliver to Fifth Third any and all
documents, instruments, agreements and information deemed necessary by Fifth
Third, in Fifth Third's reasonable discretion, to perfect or to continue the
perfection of Fifth Third's liens created hereunder, to facilitate the
collection of the Collateral or otherwise to give effect to or carry out the
terms or intent of this Agreement or any of the other Loan Documents. The
indemnification set forth herein shall survive the Closing of the transaction
and the repayment of all Liabilities incurred under the Loan Documents.
13. CORPORATE GUARANTOR'S AFFIRMATIVE AGREEMENTS. In addition to any
----------------------------------------------
other covenants and agreements of Corporate Guarantor hereunder, Corporate
Guarantor agrees that from the date hereof and until payment in full of all
Liabilities and termination of Fifth Third's obligation to make Advances, unless
Fifth Third shall otherwise consent in writing, it shall (a) cause to be done
all things reasonably needed to preserve its rights and franchises and make good
faith efforts to comply with all laws applicable to it; continue to conduct its
business substantially as it has during the present year or as it has
represented same to Fifth Third; and, at all times, maintain such insurance, to
such extent and against such risks, including, fire, theft, workmen's
compensation claims, general liability and property damage, as is customary with
companies in the same or similar business, providing a schedule of same to Fifth
Third; (b) promptly pay all of its obligations, and all taxes, assessments and
governmental charges imposed upon it and its business operations before they are
in default, as well as all lawful claims for labor, materials and supplies or
otherwise which, if unpaid, might become a lien upon its properties; (c)
promptly notify Fifth Third of any default by Borrower or Corporate Guarantor
relating to any indebtedness of Borrower or Corporate Guarantor or any material,
contractual obligation of Borrower or Corporate Guarantor; (d) protect,
indemnify, defend and save harmless, Fifth Third, any affiliate of Fifth Third
Bancorp, and their respective directors, officers, agents and employees from and
against any and all liability, expense or damage of any kind or nature and from
any suits, claims or demands, including reasonable legal fees and expenses on
account of any matter or thing or action or failure to act of Fifth Third or
such affiliate of Fifth Third Bancorp, whether in suit or not, arising out of
this Agreement or any Loan Documents or Security Instrument (as defined in
either of the Notes) or in connection herewith or therewith unless said suit,
claim or damage is caused by the sole negligence or willful malfeasance of Fifth
Third or such affiliate of Fifth Third Bancorp; and (e) at Fifth Third's
request, promptly execute or cause to be executed and deliver to Fifth Third any
and all documents, instruments, agreements and information deemed necessary by
Fifth Third, in Fifth Third's reasonable discretion, to perfect or to continue
the perfection of Fifth Third's liens created hereunder, to facilitate the
collection of the Collateral or otherwise to give effect to or carry out the
terms or intent of this Agreement or any of the other Loan Documents,
specifically excluding, however, any patient records. The indemnification set
forth herein shall survive the Closing of the transaction and the repayment of
all Liabilities incurred under the Loan Documents.
14. BORROWER'S NEGATIVE COVENANTS. In addition to any other covenants
------------------------------
and agreements of Borrower hereunder, Borrower agrees that from the date hereof
and until payment in full of all Liabilities and termination of Fifth Third's
obligation to make Advances, unless Fifth Third shall otherwise consent in
writing, it shall not: (a) incur or permit to exist any indebtedness or
liability for borrowed money, except for the Liabilities, the existing
indebtedness set forth on Schedule 14(a) attached hereto, or as approved by
Fifth Third; (b) incur or permit to exist any lien or other encumbrance on the
Collateral other than in favor of Fifth Third or as permitted hereunder; (c)
guarantee or otherwise be responsible for obligations of any other Person except
in favor of Fifth Third or any affiliate of Fifth Third Bancorp; (d) to the
extent the following would cause a material adverse effect on Borrower's ability
to perform its obligations hereunder, make any substantial change in its present
business or engage in any activities apart from its present business; dissolve,
merge or consolidate with or into any other Person, or otherwise change its
identity or corporate structure, , or all or a substantial part of its assets,
whether now owned or hereinafter acquired, change its corporate or tradename, or
change its chief executive and/or operating offices; and (e) create, incur,
assume or suffer to exist any lease obligation other than Permitted Liens or
lease obligations incurred in the ordinary course of business, make any
investment in, or make any loan or advance to, any Person, or purchase or
acquire obligations owned by others.
15. CORPORATE GUARANTOR'S NEGATIVE COVENANTS. In addition to any other
----------------------------------------
covenants and agreements of Corporate Guarantor hereunder, Corporate Guarantor
agrees that from the date hereof and until payment in full of all Liabilities
and termination of Fifth Third's obligation to make Advances, unless Fifth Third
shall otherwise consent in writing, it shall not: (a) incur or permit to exist
any indebtedness or liability for borrowed money in excess of Fifty Thousand
Dollars ($50,000.00), except for the Liabilities or as approved by Fifth Third;
(b) incur or permit to exist any lien or other encumbrance on the Collateral
other than in favor of Fifth Third or as permitted hereunder; (c) guarantee or
otherwise be responsible for obligations of any other Person except in favor of
Fifth Third or any affiliate of Fifth Third Bancorp; (d) to the extent the
following would cause a material adverse effect on Borrower's ability to perform
its obligations hereunder, make any substantial change in its present business
or engage in any activities apart from its present business; dissolve, merge or
consolidate with or into any other Person, or otherwise change its identity or
corporate structure, , or all or a substantial part of its assets (except for
inventory in the ordinary course of business) whether now owned or hereinafter
acquired, change its corporate or tradename, or change its chief executive
and/or operating offices; ; and (e) create, incur, assume or suffer to exist any
lease obligation in excess of Fifty Thousand Dollars ($50,000.00), other than
Permitted Liens or lease obligations incurred in the ordinary course of
business, make any investment in, or make any loan or advance to, any Person, or
purchase or acquire obligations owned by others.
16. EVENTS OF DEFAULT. The following are Events of Default:
-------------------
(a) Payment. Default in the payment of any Liability within ten (10)
-------
days of when due, or default with respect to any indebtedness (other than the
Liabilities) of Borrower when due or default in the performance of any other
obligation incurred in connection with any indebtedness of Borrower or any
Guarantor for borrowed money, subject to any applicable grace or cure periods,
if the effect of such default is the accelerated maturity of such indebtedness;
(b) Breach of Representations or Warranties. The breach of any of
-------------------------------------------
Borrower's or any Guarantor's representations, covenants, agreements or
warranties contained in this Agreement (including, without limitation, those set
forth in Section 11 of this Agreement) or under the Loan Documents or any
Security Instrument (as defined in either of the Notes) in any material respect
or the same being misleading in any material respect or the breach of any
representations or warranties contained in any other instrument executed in
favor of Fifth Third or any affiliate of Fifth Third Bancorp;
(c) Payment of Over-Advance. Refusal or failure to pay amounts in
-------------------------
excess of the Borrowing Base ("Over-Advance") within ten (10) days after the
occurrence of such Over-Advance;
(d) Other Terms, Covenants or Agreements. Default in the
----------------------------------------
performance of any other term, covenant, condition, obligation or agreement of
this Agreement, any Guaranty, any Security Instrument (as defined in either of
the Notes) or any Loan Document which continues unremedied for thirty (30) days
after written notice of such event to Borrower or Guarantor (as the case may be)
from Fifth Third, or any material event of default on the part of Borrower or
any Guarantor due to non-performance under any loan, agreement, document or
instrument to which Borrower or any Guarantor is now or hereafter a party, or by
which any of Borrower's or Guarantor's property is bound, which default or event
of default is not cured within the period of grace, if any, provided therein;
(e) Liens, Sales, Conveyances, etc. Any sale, conveyance or transfer
---------------------------------
of any rights in the Collateral securing the Liabilities, or any destruction,
loss or damage of or to the Collateral in any material respect other than a
Permitted Lien or as expressly permitted pursuant to this Agreement, or the
creation of any lien on the Collateral (except a Permitted Lien, a lien to
Secured Party or as expressly agreed by Secured Party in writing.)
(f) Maintenance of Insurance. Failure of Borrower or Corporate
--------------------------
Guarantor to maintain any insurance required under the terms of any Security
Instrument.
(g) Voluntary Actions. Borrower shall apply for or consent to the
------------------
appointment of a receiver, trustee or liquidator for itself or for any of its
properties or assets, admit in writing the inability to pay debts, make a
general assignment for the benefit of creditors, be adjudicated bankrupt or
insolvent, or file a voluntary petition under any bankruptcy law, or a petition
or answer seeking reorganization or an arrangement with creditors or to take
advantage of any bankruptcy, reorganization, insolvency, or liquidation law, or
an answer admitting the material allegations of a petition filed against it in
any proceeding under any such law, or any of the foregoing shall occur with
respect to any Guarantor;
(h) Involuntary Actions. An order shall be entered, without the
--------------------
application or consent of Borrower, by any court approving a petition seeking
reorganization of Borrower or of all or a substantial part of the properties or
assets of Borrower or appointing a receiver, trustee or liquidator of Borrower
and such order shall continue unstayed and in effect for a period of thirty
(30) days or more, or the institution of any garnishment proceedings by
attachment, levy or otherwise, against any deposit balance maintained or any
property deposited with Fifth Third by Borrower and such proceeding is not
discharged within ten (10) days of its commencement, or any of the foregoing
shall occur with respect to any Guarantor or Parent.
17. ACTION UPON DEFAULT. Upon the occurrence of any Event of Default,
--------------------
in addition to all rights and remedies available to it at law or in equity
(which rights and remedies are expressly reserved by Fifth Third) Fifth Third
may, upon notice to Borrower, at its election (but without any obligation to do
so), without further demand or notice of any kind or any appraisal or
evaluation, all of which are hereby expressly waived by Borrower:
(a) Cease making any Advances under either or both of the Revolving
Line of Credit or the Draw Loan;
(b) Pay any taxes, discharge any lien, procure any insurance, pay any
contractor, subcontractor, materialman or supplier or cure any default by
Borrower or Corporate Guarantor and the costs thereof shall be deemed
Liabilities bearing interest at the highest Default Rate under the Notes and
secured by the Security Instruments (as defined in either of the Notes), and/or
the Collateral;
(c) Declare either or both of the Notes and any or all Liabilities due
and payable forthwith in full, both as to principal and interest, anything
contained in this Agreement or the Loan Documents to the contrary
notwithstanding (which shall be automatic upon the occurrence of any event
described in 16(g) or 16(h) above).
Fifth Third may proceed to the enforcement of this Agreement or any other
Loan Documents with its rights and remedies as provided by law or equity against
any Collateral in any combination or order as Fifth Third shall choose.
18. FURTHER FIFTH THIRD RIGHTS. Without limiting any other provision
----------------------------
contained herein, should any or all Liabilities become forthwith due and
payable as set forth in paragraph 17 above, Fifth Third may sell or deliver the
Collateral or any part thereof, in good faith at any broker's board, or at
public or private sale, in whole at any time or in part from time to time within
Florida or elsewhere, for cash, upon credit or for future delivery and at such
place or prices as it shall deem satisfactory. Fifth Third may be a good faith
purchaser of any Collateral and may apply to the purchase price of the
Collateral any amounts due and unpaid as Liabilities. Any such sales shall be
free from any right or equity of redemption in Borrower or any Guarantor, which
right or equity, if any, is hereby expressly waived and released by Borrower and
all Guarantors. In case of any sale by Fifth Third of any of the Collateral on
credit or for future delivery, the Collateral sold may be retained by Fifth
Third until the selling price is paid by the purchaser, but Fifth Third shall
incur no liability in case of a failure of the purchaser to take up or pay for
the Collateral so sold. In case of any such failure, such Collateral so sold
may be again similarly sold. In lieu of exercising a power of sale hereunder
conferred upon it, Fifth Third may, in its sole discretion, proceed by suit or
suits at law or in equity to enforce the security interest and sell the
Collateral, or any portion thereof, under a judgment or decree of a court or
courts of competent jurisdiction. Borrower and Guarantors each authorize Fifth
Third, in connection with any sale, assignment, transfer or delivery for the
purpose of enforcing this Agreement, to execute and deliver such bills of sale,
assignments and other instruments that the Fifth Third shall consider necessary.
Nevertheless, Borrower and Guarantors each agree, if requested by Fifth Third,
to ratify and confirm any such sale, assignment, transfer or delivery by
executing and delivering to Fifth Third or any purchaser all bills of sale,
assignments, releases and other proper instruments or documents to effect such
ratification and confirmation as may be designated at any such request. The
proceeds of such sales may be applied to the Liabilities in any manner or order
Fifth Third desires. Fifth Third shall have all of the rights and remedies of a
secured party under the Uniform Commercial Code as adopted in Florida and under
any other applicable law.
19. NO WAIVER. The failure of Fifth Third to insist upon strict
----------
compliance with and performance of any of the terms and conditions of this
Agreement shall not constitute a waiver of any such term or condition. Any
waiver granted hereunder shall be in writing signed by Fifth Third and shall
apply only to the specific instance referenced therein and only for that
specific time. Any waiver granted for one event shall not constitute a waiver
of any same or similar condition or event occurring at a subsequent date. No
waiver by Fifth Third of any Event of Default shall be held or construed to be
a waiver of any other Event of Default whether or not subsequently occurring.
No Advances under this Agreement shall constitute a waiver of any of the
conditions of the Fifth Third's obligation to make further Advances, nor, in the
event Borrower is unable to satisfy any such condition, shall any such failure
to insist upon strict compliance have the effect of precluding Fifth Third from
thereafter declaring such inability to be an Event of Default as herein
provided. The remedies set forth herein are cumulative and are in addition to
any other remedies available to Fifth Third by law or equity or by any other
documents executed by Borrower or any Guarantor in connection with this loan,
and Fifth Third may pursue any one, several or all of said remedies upon the
occurrence of any Event of Default.
20. GENERAL CONDITIONS.
-------------------
(a) Indemnity. Borrower and each of the Guarantors hereby indemnifies
---------
and agrees to defend and hold harmless each of Fifth Third and any affiliate of
Fifth Third Bancorp and their respective directors, officers, agents and
employees, from and against any and all liabilities, claims, charges, losses,
expenses (including, without limitation, attorneys' fees and disbursements) or
damages of any kind or nature, or otherwise which may arise in connection with
this Agreement or any of the other Loan Documents or the consummation of the
transactions contemplated herein or therein, except to the extent any such
liabilities, claims, charges, losses, expenses or damages arise solely and
directly out of the gross negligence or willful misconduct of Fifth Third or any
affiliate of Fifth Third Bancorp or their respective directors, officers, agents
or employees.
(b) Submission of Evidence. Any condition of this Agreement which
------------------------
requires the submission of evidence of the existence or non-existence of a
specified fact or facts implies as a condition the existence or non-existence,
as the case may be, of such fact or facts, and Fifth Third shall, at all times,
be free to independently establish to its satisfaction such existence or
non-existence.
(c) Fifth Third Sole Beneficiary. All terms, provisions, covenants and
----------------------------
other conditions of the obligations of Fifth Third to make Advances hereunder
are imposed solely and exclusively for the benefit of Fifth Third and its
successors and assigns, and no other person shall have standing to require
satisfaction of such terms, covenants and other conditions in accordance with
their terms or be deemed to be a beneficiary of such terms, covenants and other
conditions, any or all of which may be freely waived, in whole or in part, by
Fifth Third at any time if, in Fifth Third's sole discretion, Fifth Third deems
it advisable or desirable to do so.
(d) Severability of Provisions. Any provision of this Agreement which
---------------------------
is prohibited or unenforceable in the State of Florida or in any jurisdiction in
the United States shall, as to the State of Florida or such jurisdiction in the
United States, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
(e) Headings. The headings and captions of various paragraphs of this
--------
Agreement are for convenience of reference only and are not to be construed as
defining or limiting, in any way, the scope or intent of the provisions hereof.
(f) No Joint Venture. Neither Borrower, Corporate Guarantor or any
------------------
Individual Guarantor are and shall not be deemed to be a joint venturer with, or
an agent of, Fifth Third for any purpose.
(g) Incorporation By Reference. Borrower and Guarantors agree that
----------------------------
until this Agreement is terminated by the repayment to Fifth Third and any
affiliate of Fifth Third Bancorp of all principal and interest due and owing on
both of the Notes, any of the Liabilities, and other sums due and owing pursuant
to the other Loan Documents, either of the Notes, the Security Instruments (as
defined in either of the Notes), and the other Loan Documents shall be made
subject to all the terms, covenants, conditions, obligations, stipulations and
agreements contained in this Agreement to the same extent and effect as if fully
set forth in and made a part of the Notes, such Security Instruments, and the
other Loan Documents. In the event of a direct conflict between any of the Loan
Documents and the provisions of this Agreement, this Agreement shall be
controlling.
(h) Further Assurances. Borrower and Guarantors hereby agree promptly
-------------------
to execute and deliver such additional documents, agreements and instruments and
promptly to take such additional action as Fifth Third may at any time and from
time to time reasonably request in writing in order for Fifth Third to obtain
the full benefits and rights granted or purported to be granted by this
Agreement.
21. INSPECTIONS. Fifth Third, through its officers, agents, employees
-----------
or designees, shall have the right at all reasonable times to examine the
books, records, accounting data and other documents of Borrower and/or Corporate
Guarantor and to make extracts therefrom or copies thereof. Said books, records
and documents shall be made available to Fifth Third, its officers, agents and
employees promptly (and in any event within three (3) business days) upon
written demand therefor. Notwithstanding the foregoing or any other provision
of this Agreement, Fifth Third acknowledges that at no time will it be
permitted, or have a right to, access to any private patient records.
22. COSTS AND EXPENSES. Borrower shall pay all expenses incidental to
-------------------
the making and administration of this loan, including, but not limited to,
pre-Closing, Closing and post-Closing expenses, commitment fees, recording and
filing fees, appraisal fees, attorneys' fees and any and all other out-of-pocket
expenses or fees incurred in connection with the negotiation, preparation,
review, amendment or modification of the documents relating to the Loans, the
administration of the Loans, or the enforcement of any of Fifth Third's rights.
Borrower agrees that Fifth Third's determination that an expense is a necessary
expense incidental to the making or administration of the Loans shall constitute
a conclusive determination of Borrower's obligation to pay such expenses.
23. NOTICES. Any notices required to be given herein by any party to
-------
the other shall be in writing and either personally delivered or sent registered
or certified mail, postage prepaid, return receipt requested, to:
Borrower: MVP 3, LP
c/o Medical Venture Partners, LLC
0000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxx, Member
Corporate Guarantor:NeoGenomics, Inc.
0000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, M.D., President
Individual
Guarantors: To the addresses set forth above.
Fifth Third: Fifth Third Bank, Florida, Florida
000 Xxxxxxxxxx Xxxxx Xxxx
P.O. Box 413021
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Vice President
or such other address as either party hereafter designates to the other in
writing as aforesaid.
24. MISCELLANEOUS. No right, interest or benefit of Borrower hereunder
-------------
shall be assigned or otherwise transferred by it. This Agreement, the Notes,
the Loan Documents and any other documents required to be executed and delivered
by Borrower or any of the Guarantors in accordance with this Agreement,
constitute the entire and complete agreement by and between Fifth Third and
Borrower concerning the Loans described in this Agreement. In the event of any
conflict or inconsistency between this Agreement and any of the other Loan
Documents, the terms of this Agreement shall govern. No change, amendment or
modification of or to this Agreement, the Notes, the Loan Documents and/or any
of the other documents executed and delivered by Borrower or any of the
Guarantors shall be binding unless in writing and signed by Fifth Third. All
representations, warranties and agreements herein contained shall survive the
Closing. This Agreement is made and entered into for the sole protection and
benefit of Fifth Third, affiliates of Fifth Third Bancorp, Borrower, and their
respective successors and assigns, and no other person shall have any right of
action hereon. Time is of the essence hereof. Whenever used, the singular
number shall include the plural, the plural the singular, and the use of any
gender shall include all genders.
25. GOVERNING LAW; CONSENT TO FORUM. This Agreement and all other Loan
-------------------------------
Documents have been negotiated, executed and delivered at and shall be deemed to
have been made in the State of Florida. This Agreement and all other Loan
Documents shall be governed by and construed in accordance with the laws of the
State of Florida; provided, however, that if any of the Collateral shall be
-------- -------
located in any jurisdiction other than Florida, the laws of such jurisdiction
shall govern the method, manner and procedure for foreclosure of Fifth Third's
lien upon such Collateral and the enforcement of Fifth Third's other remedies
with respect to such Collateral to the extent that the laws of such
jurisdiction are different from or inconsistent with the laws of Florida. As
part of the consideration for new value this day received, Borrower and
Guarantors each hereby consent and submit to the personal jurisdiction of the
Circuit Court for Xxxxxxx County, Florida and the United States District Court
for the Middle District of Florida, and waive personal service of any and all
process upon it and consent that all such service of process be made by
certified or registered mail directed to such party at the address stated in
paragraph 23, with service so made deemed to be completed upon actual receipt
thereof. Borrower and each of the Guarantors waive any objection to
jurisdiction and venue of any action instituted against it as provided herein
and agree not to assert any defense based on lack of jurisdiction or venue.
26. WAIVER OF RIGHT TO TRIAL BY JURY. BORROWER, CORPORATE GUARANTOR,
----------------------------------
INDIVIDUAL GUARANTORS, AND FIFTH THIRD EACH HEREBY UNCONDITIONALLY AND
IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT,
COUNTERCLAIM OR CROSS-CLAIM ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE
RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, THE LIABILITIES, ANY
COLLATERAL OR ANY TRANSACTION ARISING THEREFROM OR RELATED THERETO.
27. CLOSING. All references herein to the "Closing" shall be deemed to
-------
refer to the actual date on which this Agreement is fully executed and delivered
to Fifth Third.
IN WITNESS WHEREOF, this Agreement has been executed by the duly authorized
officers of Borrower, Corporate Guarantor and Fifth Third and by the Individual
Guarantors as of the day and year first above written.
Signed In the Presence of: Fifth Third:
FIFTH THIRD BANK, FLORIDA
Print Name
By:
Print Name: Xxxxx X. Xxxxxx, Vice President
Borrower:
MVP 3, LP, a Delaware limited partnership
Print Name
By: Medical Venture Partners, LLC, a
Delaware limited liability company, its general partner
Print Name:
By:
Xxxxxx Xxxxx, Member
Corporate Guarantor:
NEOGENOMICS, INC., a Florida corporation
Print Name
By:
Print Name: Xxxxxxx X. Xxxx, M.D., President
Individual Guarantors:
Print Name
Print Name: Xxxx Xxxxxxx
Print Name
Print Name: Xxxxx Xxxxxxx (aka Xxxxxxxx X. Xxxxxxx)
[SIGNATURES CONTINUE ON NEXT PAGE]
Print Name
Print Name: Xxxxxx Xxxxx
This Instrument Prepared By:
Xxxxxx Xxxxxx Xxxxxx & Xxxxxx LLP
0000 Xxxxxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000-0000
------
EXHIBIT A
---------
REVOLVING LINE OF CREDIT PROMISSORY NOTE
----------------------------------------
$750,000.00 As of April 15, 2003
Naples, Florida
FOR VALUE RECEIVED, the undersigned, MVP 3, LP, a Delaware limited
partnership, having its principal office at 0000 Xxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxx 00000 (hereinafter referred to as "Borrower"), promises to pay to the
order of FIFTH THIRD BANK, FLORIDA, a Florida banking corporation, with an
office at 999 Vanderbilt Beach Road, P.O. Box 413021, Xxxxxx, Xxxxxxx 00000
(hereinafter referred to as "Bank"), or holder, the principal sum of Seven
Hundred Fifty Thousand ($750,000.00), or so much thereof as may be advanced by
Bank to Borrower from time to time pursuant to the terms hereof and of that
certain Loan and Security Agreement by and between Borrower and Bank dated of
even date herewith (as the same may be amended, modified, restated, extended
and/or replaced from time to time, the "Loan Agreement"), together with any
additional payments or sums provided for in this Note, the Loan Agreement, and
the Security Instruments (as hereinafter defined), with interest from the date
of advance, at the rate and in the manner hereinafter specified. The principal
amount of each loan made by Bank under this Note and the amount of each
prepayment made by Borrower under this Note will be recorded by Bank in the
regularly maintained data processing records of Bank. The aggregate unpaid
principal amount of all loans set forth in such schedule or in such records will
be presumptive evidence of the principal amount owing and unpaid on this Note.
However, failure by Bank to make any such entry will not limit or otherwise
affect Borrower's obligations under this Note, the Loan Agreement, or the
Security Instruments. Borrower may borrow, prepay (without penalty or premium),
and reborrow principal hereunder, subject to the terms hereof, provided that the
principal amount of all Advances (as hereinafter defined) hereunder outstanding
at any one time shall not exceed the lesser of the face amount of this Note or
the Borrowing Base (as hereinafter defined). If the total principal amount of
all Advances made hereunder at any time exceeds the face amount of this Note or
exceeds the Borrowing Base (as hereinafter defined), Borrower will immediately
pay the amount of such excess to Bank.
Interest
--------
Interest shall be at the rate per annum equal to the Prime Rate (as
hereinafter defined) plus two percent (2%). Interest shall be charged on the
outstanding principal balance of this Note from time to time owing from the date
such principal is advanced. During the term of this Note, the rate of interest
shall be based on the hereinafter defined Prime Rate from time to time in
effect. Said rate of interest shall increase and decrease automatically and
without notice in the same amount and on the same day that said Prime Rate
increases or decreases. Any reference herein to the "prime rate of interest" or
Prime Rate is hereby defined to mean the prime, base or reference rate of
interest for commercial loans set and established by Bank from time to time,
which rate is not intended to be nor is defined as the lowest rate of interest
charged by Bank to its most preferred borrowers and whether or not such rate is
actually charged. All Interest shall be calculated on the basis of a 360-day
year for actual days elapsed. Interest after maturity (whether as stated, by
acceleration or otherwise) on any and all portions of the principal amount and
any unpaid interest shall be at a rate per annum equal to six percent (6%) above
the rate otherwise then payable (hereinafter referred to as the "Default Rate of
Interest"). Interest shall be payable in arrears and shall accrue as of the
date of the first Advance hereunder.
Payments
--------
Interest only on the unpaid principal balance of this Note shall be due and
payable monthly in arrears commencing on the last day of April, 2003, with
successive payments due on the last day of each succeeding and consecutive month
thereafter, and continuing until maturity (as stated, by acceleration or
otherwise), at which time the then outstanding principal amount hereof, which is
acknowledged by Borrower to be a balloon payment, together with interest and any
and all other amounts due hereunder or under the hereinafter described Security
Instruments shall be due and payable. All payments under this Note shall be
applied, at Bank's discretion, to payment of accrued interest, late fees and any
other amounts due and payable by Borrower hereunder or under the Security
Instruments with the balance to be applied towards the principal amount owed
hereunder.
Prepayments; Required Payments
--------------------------------
Borrower may prepay this Note in whole or in part at any time without
premium or penalty. Any and all principal, interest payments and late fees paid
by NeoGenomics to Borrower pursuant to any instruments, agreements and/or
documents which are the subject of the Collateral Assignment of Loan (as
hereinafter defined), excluding, however, interest payments made by NeoGenomics
to Borrower in excess of those interest payments owed by Borrower to Bank, shall
be immediately paid to Bank to be applied to the Liabilities (as defined in the
Loan Agreement) at Bank's discretion. No prepayment or required payment made
pursuant to this section shall be deemed to relieve Borrower of its obligation
to make other payments hereunder, including, without limitation any scheduled
interest payment.
Term of Note
--------------
The entire unpaid principal balance of this Note, together with accrued
interest thereon, shall be due and payable unless earlier accelerated as
provided herein, on April 14, 2005, subject to extension by Bank in its sole
discretion ("Maturity Date").
Place of Payments
-------------------
Payments shall be payable in lawful money of the United States to Bank at
its office at 999 Vanderbilt Beach Road, P.O. Box 413021, Xxxxxx, Xxxxxxx 00000,
or at such place as shall hereafter be designated by written notice from the
holder to the Borrower.
Monetary Default
-----------------
Upon the failure to make any payment required hereunder or under any of the
other Security Instruments or under any other obligation of Borrower to Bank
when due, the entire unpaid principal of this Note, together with accrued
interest thereon and any other sums due to Bank by Borrower, shall become at
once due and collectible at the option of the Bank or holder, without notice or
demand and Bank or holder may proceed to foreclose all liens and security
interests securing this Note. The notice of the exercise of the option to
accelerate contained in this paragraph is hereby expressly waived by Borrower.
Failure of the Bank or holder to exercise this option shall not constitute a
waiver of the right to exercise the same in the event of any subsequent default.
"Security Instruments"
-----------------------
The payment of this Note is secured by valid and subsisting (a) Loan
Agreement, (b) Security Agreement of even date herewith executed by Borrower in
favor of Bank, as the same may be amended, modified, extended, replaced or
restated from time to time ("Borrower Security Agreement"), (c) Security
Agreement of even date herewith executed by NeoGenomics in favor of Bank, as the
same may be amended, modified, extended, replaced, or restated from time to time
("NeoGenomics Security Agreement"), (d) Four (4) separate Guaranties, each of
even date herewith, executed by Xxxx Xxxxxxx ("Xxxxxxx"), Xxxxx Xxxxxxx (aka
Xxxxxxxx X. Xxxxxxx) ("Xxxxxxx"), Xxxxx Xxxxx ("Xxxxx"), and NeoGenomics
(collectively, jointly and severally hereinbefore and hereinafter referred to as
"Guarantors" and Xxxxxxx, Xxxxxxx and Xxxxx being collectively and severally
referred to as "Individual Guarantors"), as either or any of the same may be
amended, modified, extended, replaced, or restated from time to time
(collectively, jointly and severally, the "Guaranty"), and (e) Collateral
Assignment of Loan Documents executed by Borrower and NeoGenomics in favor of
Bank dated of even date herewith, as the same may be amended, modified,
extended, replaced or restated from time to time (hereinbefore and hereafter
"Collateral Assignment of Loan"). The Loan Agreement, the Borrower Security
Agreement, the NeoGenomics Security Agreement, the Guaranty, the Collateral
Assignment of Loan, and all other instruments now or hereafter executed in
connection with or as security for this Note or any other obligations of
Borrower to Bank have heretofore and shall hereinafter be collectively referred
to as the "Security Instruments."
Security and Non-Monetary Default
------------------------------------
All of the agreements, conditions, covenants, warranties, representations,
provisions and stipulations made by or imposed upon Borrower in the Security
Instruments are hereby made a part of this Note to the same extent, and with the
same force and effect, as if they were fully recited herein. Should there be an
Event of Default (as defined in the Loan Agreement), then the Bank, or holder,
shall have (after the expiration of any applicable grace period and notice
expressly set forth in the Loan Agreement), in addition to any and all other
rights, remedies and recourses available to it, the right and option to declare
the entire unpaid principal balance and accrued interest on this Note and any
other sums due to Bank by Borrower at once due and payable without further
demand or presentment for payment to Borrower, and proceed to foreclose all
liens and security interests securing the payment of same and to invoke all
rights, remedies and recourses relating thereto. The notice of the exercise of
the option to accelerate contained in this paragraph is hereby expressly waived
by Borrower. Failure of the Bank or holder to exercise the option contained in
this paragraph shall not constitute a waiver of the right to exercise the same
in the event of any subsequent default.
Late Charge
------------
In the event that any payment herein provided for shall become overdue for
a period in excess of ten (10) days, a late charge of five percent (5%) of such
amount so overdue shall become immediately due to the Bank or holder, not as a
penalty, but as agreed compensation to Bank or holder for the additional costs
and expenses incident to such default in making a payment or payments. Borrower
acknowledges that the exact amount of such costs and expenses may be difficult,
if not impossible, to determine with certainty, and further acknowledges and
confesses the amount of such charge to be a consciously considered, good faith
estimate of the actual damage to Bank or holder by reason of such default. Said
charge shall be payable in any event no later than the due date of the next
subsequent payment hereunder. Assessment of the late charge shall not in any
event be deemed to extend the date upon which such installment is due. Failure
to pay an assessed late charge is an event of default. The assessment and/or
collection of any late charge shall in no way impair Bank's right to pursue any
other remedies upon default hereunder, nor shall the acceptance by Bank of any
late payment or other performance which does not strictly comply with the terms
of this Note or any of the Security Instruments, be deemed to be a waiver of any
rights of Bank arising as a result of any other failure to comply.
Default Rate
-------------
In the event of any default hereunder or under any of the Security
Instruments, the unpaid principal balance of this Note and accrued interest
thereon, together with the late charge set forth in the preceding paragraph and
all other sums due to Bank or holder by Borrower, shall at the option of Bank
bear interest at the Default Rate of Interest from the date of occurrence of any
such Event of Default until all sums are paid in full.
Right of Set-Off
------------------
Borrower grants to Bank a contractual possessory security interest in, and
hereby assigns, conveys, delivers, pledges and transfers to Bank all Borrower's
right, title and interest in and to, the accounts of Borrower with Bank (whether
checking, savings, or some other account), including without limitation all
accounts held jointly with someone else and all accounts Borrower may open in
the future, excluding, however, all XXX and Xxxxx accounts. Borrower authorizes
Bank, to the extent permitted by applicable law and upon the occurrence of any
default hereunder or under any of the Security Instruments, to charge or set-off
all sums owing on this Note against any and all such accounts, provided,
however, without impairing or limiting Bank's security interest, that Bank shall
not set-off against any XXX or Xxxxx accounts.
Conditions for Advance
------------------------
No Advance shall be made hereunder if Bank in its sole discretion
determines that the total amount of all outstanding and unpaid Advances plus the
requested Advance would exceed the Borrowing Base. No Advance shall be made
hereunder if Borrower is in default hereunder or under any of the Security
Instruments. No Advance shall be made hereunder without submission of a current
Borrowing Base Certificate evidencing that the total of such requested Advance
plus all outstanding and unpaid Advances will not exceed the Borrowing Base.
Borrowing Base Covenant
-------------------------
At all times hereafter, and so long as any principal is outstanding
hereunder or Bank has any obligation to advance funds hereunder, Borrower shall
not permit the total of all unpaid Advances hereunder to exceed the Borrowing
Base. Bank may, by notice to Borrower, require compliance with such additional
covenants as Bank may, in its reasonable discretion, deem necessary to ensure
that Borrower's financial status does not change in a material adverse manner.
Definitions
-----------
As used herein, the following terms shall have the following meaning:
"Accounts" shall have the meaning ascribed thereto in the Uniform
Commercial Code in effect in the State of Florida from time to time, as the same
may be amended and/or modified.
"Advance" shall mean each principal amount advanced hereunder.
"Borrowing Base" shall mean the total of eighty percent (80%) of Eligible
Accounts plus fifty percent (50%) of the Book Value (determined pursuant to
GAAP) of all Equipment owned by NeoGenomics.
"Borrowing Base Certificate" shall mean a collateral report substantially
in the form of Exhibit 1 attached hereto and incorporated herein by reference,
identifying the calculation of and basis for the Borrowing Base.
"Eligible Accounts" shall mean all of NeoGenomics' Accounts minus (a) any
of NeoGenomics Accounts which are unpaid more than ninety (90) days from the
earlier of the date of invoice or billing, (b) any of NeoGenomics' Accounts owed
by an Account Debtor for whom twenty-five percent (25%) or more of such Account
Debtor's Total Accounts are unpaid more than sixty (60) days from the date of
invoice, (c) contra accounts, i.e., Accounts owed by an Account Debtor to whom
NeoGenomics is also a vendor, (d) Accounts owed by a foreign Account Debtor, and
(e) Accounts owed to NeoGenomics by Borrower or any other entity related to
either Borrower or NeoGenomics by common ownership.
"Equipment" shall have the meaning ascribed thereto in the Uniform
Commercial Code in effect in the State of Florida from time to time, as the same
may be amended and/or modified.
"GAAP" means generally accepted accounting principles, consistently
applied.
"Person" means any individual, entity or governmental agency, and shall be
construed in its broadest sense.
Additional Requirements
------------------------
Borrower shall submit to Bank the following:
(a) upon (i) execution of this Note, and (ii) on or before the twentieth
(20th) day of every month, a Borrowing Base Certificate evidencing that the
total of all outstanding Advances as of the execution of this Note (for a
Borrowing Base Certificate submitted pursuant to (i) above), or as of the end of
the preceding month (for a Borrowing Base Certificate submitted pursuant to (ii)
above) does not exceed the Borrowing Base, and each Borrowing Base Certificate
shall also contain a complete aging of NeoGenomics' Accounts and accounts
payable;
(b) within three (3) days of filing, complete copies of its federal tax
returns, with all schedules;
(c) such additional documents regarding Borrower's financial condition,
assets or ability to repay Advances as Bank may deem reasonably necessary or
desirable.
Depository Relationship; Billpayer 2000
------------------------------------------
Prior to the execution of this Note, Borrower has established and, at all
times hereafter will maintain, the Bank as its sole depository institution and
will use Bank's "Billpayer 2000" program (as the same may be modified from time
to time), and agrees to open such accounts, execute such documents, and perform
any other acts necessary to maintain said relationship and program.
Waiver of Laws
----------------
Borrower hereby waives the benefit of any laws which now or hereafter might
authorize the stay of any execution to be issued on any judgment recovered on
this Note or the exemption of any property from levy or sale thereunder.
Borrower also waives and releases unto Bank or holder hereof, all errors,
defects and imperfections whatsoever of a procedural nature in the entering of
any judgment or any process or proceedings relating thereto.
WAIVER OF RIGHT TO TRIAL BY JURY.
--------------------------------------
BORROWER AND BANK EACH HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, COUNTERCLAIM OR CROSS-CLAIM
ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THIS NOTE, THE
SECURITY INSTRUMENTS, THE OBLIGATIONS EVIDENCED HEREBY, AND/OR ANY COLLATERAL OR
ANY TRANSACTION ARISING THEREFROM OR RELATED HERETO.
Non-Waiver
----------
The remedies of this Note and the aforedescribed Security Instruments
securing the same, providing for the enforcement of the payment of the principal
sum thereby secured, together with the interest thereon, and for the performance
of the covenants, conditions and agreements, matters and things herein and
therein contained, are cumulative and concurrent and may be pursued singly or
successively or together, at the sole discretion of Bank or holder, and may be
exercised as often as occasion therefor shall occur. The waiver by Bank or any
holder hereof of, or failure to enforce any covenant or condition of this Note
or the Security Instruments, or to declare any default thereunder or hereunder,
shall not operate as a waiver of any subsequent default or affect the right of
the Bank or holder to exercise any right or remedy not expressly waived in
writing by Bank or holder.
Payment of Expenses
---------------------
Borrower shall pay Bank, concurrent herewith, a processing fee in the
amount of $650.00 and a commitment fee in the amount of $15,000.00 and shall
pay, upon receipt of an invoice therefor, all legal fees and other out-of-pocket
expenses incurred by Bank in connection herewith.
Costs of Collection
---------------------
Borrower hereby unconditionally agrees to pay the costs of collection of
this Note, including, but not limited to, reasonable attorney fees incurred by
Bank or holder, if collectible in the jurisdiction in which a judgment is
rendered or sought to be enforced.
Acknowledgment of Type of Debt and Use of Proceeds
----------------------------------------------------------
Borrower hereby acknowledges, warrants and represents that this is not a
consumer transaction and that the principal sum evidenced hereby was not used
for any consumer purpose but was used solely in connection with a commercial,
business transaction. Borrower hereby acknowledges, warrants and represents
that it will use all Advances solely as and for loans to be made to NeoGenomics.
Binding Effect
---------------
This obligation shall bind Borrower and Borrower's successors and permitted
assigns, as the case may be, and the benefits hereof shall inure to any holder
hereof and its successors and assigns.
Waiver of Presentment, Etc.
------------------------------
Borrower, and all sureties, endorsers and guarantors of this Note, if any,
hereby: (a) waive demand, presentment for payment, notice of non-payment,
protest, notice of protest and all other notice (unless notice is specifically
otherwise required in this Note), filing of suit or diligence in collecting this
Note, in enforcing any of the security rights or in proceeding against any of
the property which is collateral for this Note; (b) agree to any substitution,
exchange, addition or release of any such property or the addition or release of
any party or Person primarily or secondarily liable herein; (c) agree that Bank
or holder shall not be required first to institute any suit, or to exhaust its
remedies against the Borrower or any other Person or party in order to enforce
payment of this Note; (d) consent to any extension, rearrangement, renewal or
postponement of time of payment of this Note and to any other indulgence with
respect hereto without notice, consent or consideration to any of them; and (e)
agree that, notwithstanding the occurrence of any of the foregoing, except as to
any such Person expressly released in writing by Bank or holder, they shall be
and remain jointly and severally, directly and primarily, liable for all sums
due hereunder and under any and all of the Security Instruments.
Governing Law
--------------
This Note and the Security Instruments shall be governed and construed in
accordance with the laws of the Xxxxx xx Xxxxxxx xxx xx xxx Xxxxxx Xxxxxx.
Severability - Usury
----------------------
The unenforceability or invalidity of any one or more provisions, clauses,
sentences and/or paragraphs of this Note shall not render any other provision,
clause, sentence and/or paragraph herein contained unenforceable or invalid.
It is the intention of Bank or holder, which is signified by acceptance of
this Note, that this Note shall comply with all applicable usury laws now or
hereafter in effect. Accordingly, to the extent that any rate of interest
stated in this Note exceeds the maximum rate of interest which may be charged on
loans of the type and nature evidenced by this Note, then said interest shall be
abated and reduced to the extent necessary to conform with the maximum
permissible rate.
IN WITNESS WHEREOF, Borrower has executed this Revolving Line of Credit
Promissory Note as of the date and year first above written in Naples, Florida.
MVP 3, LP, a Delaware limited partnership ("Borrower")
By: MEDICAL VENTURES PARTNERS, LLC,
a Delaware limited liability
company, its general partner
_________________________________
Print Name
By:
___________________________________
Xxxxxx Xxxxx, Member
______________________
Print Name: _______________________
EXHIBIT 0
XXXXX XXXXX XXXX, XXXXXXX
BORROWING BASE CERTIFICATE
NeoGenomics, Inc., a Florida corporation ("Company"), and MVP 3, LP, a Delaware
limited partnership ("Borrower")
The undersigned, in accordance with and subject to the terms of the Loan
and Security Agreement dated April 15, 2003 (as the same may be hereafter
amended, restated, extended, revised, and/or modified from time to time,
hereinafter referred to as the "Agreement"), and the Revolving Line of Credit
Note as defined therein ("Note"), hereby certifies as of
______________________________ [insert month and year] that the following
computations have been made in accordance with the provisions of the Agreement
and the Note and without duplication or overlap:
I. CALCULATION OF ELIGIBLE ACCOUNTS
A. Accounts $______________
B. Less
(a) Accounts that arose in the ordinary course of Company's business
from the performance (fully completed) of services or bona fide lease,
sale, manufacture, repair, processing or fabrication of personal property
which have been delivered to the Account Debtor, and more than
ninety (90) days have elapsed since the date on which the Account,
by its original terms, was invoiced
$______________
(b) Accounts for which Company or Borrower has received notice that
the Account Debtor is the subject of an action in bankruptcy court
or for receivership, or otherwise fail to meet the criteria for Eligible
Accounts $______________
(c) Accounts owed by an Account Debtor to whom Company is also a vendor
$______________
(d) Accounts that are an Account arising out of contracts with or orders
from an Account Debtor which does not have its principal place of
business located in the United States of America
$______________
(e) Accounts that are an Account due from Borrower or any Affiliate,
subsidiary, shareholder or employee of Borrower or Company
$______________
Total Non-Eligible (sum of (a) through (e)) $______________
C. Total Eligible Accounts (A minus B) $______________
D. Advance Rate (80%) x .80
--------
E. Accounts Availability per Formula
$______________
II. CALCULATION OF ELIGIBLE EQUIPMENT
A. Book Value of Equipment
$_____________
B. Advance Rate (50%) x .50
----------
C. Equipment Availability per Formula $_____________
III. Total Credit Availability per Formula (IE + IIC)
$_____________
Revolver Commitment Amount $750,000.00
Total Credit Availability $_____________
Less Outstanding RC Debt $_____________
Excess (Deficit) Availability $_____________
For the purposes of inducing Fifth Third Bank, Florida to grant Revolving Line
of Credit Loans pursuant to the Note and Agreement, we hereby certify that the
foregoing Borrowing Base Certificate is true and correct in all particulars and
that there is no Event of Default or event which, but for the passage of time or
notice or both, would constitute an Event of Default under the Agreement or the
Note.
NeoGenomics, Inc., a Florida corporation ("Company") MVP 3, LP, a Delaware
limited partnership ("Borrower")
By:__________________________________________
By:_________________________________________
Title:_________________________________________
Title:________________________________________
Dated:________________________________________
Dated:_______________________________________
Borrowing Base Certificate No.:____________
EXHIBIT B
---------
DRAW NOTE
---------
$750,000.00 As of April 15, 2003
Naples, Florida
FOR VALUE RECEIVED, the undersigned, MVP 3, LP, a Delaware limited
partnership, having its principal office at 0000 Xxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxx 00000 (hereinafter referred to as "Borrower"), promises to pay to the
order of FIFTH THIRD BANK, FLORIDA, a Florida banking corporation, with an
office at 999 Vanderbilt Beach Road, P.O. Box 413021, Xxxxxx, Xxxxxxx 00000
(hereinafter referred to as "Bank"), or holder, the principal sum of Seven
Hundred Fifty Thousand ($750,000.00), or so much thereof as may be advanced by
Bank to Borrower from time to time pursuant to the terms hereof and of that
certain Loan and Security Agreement by and between Borrower and Bank dated of
even date herewith (as the same may be amended, modified, restated, extended
and/or replaced from time to time, the "Loan Agreement"), together with any
additional payments or sums provided for in this Note, the Loan Agreement, and
the Security Instruments (as hereinafter defined), with interest from the date
of advance, at the rate and in the manner hereinafter specified. The principal
amount of each loan made by Bank under this Note and the amount of each
prepayment made by Borrower under this Note will be recorded by Bank in the
regularly maintained data processing records of Bank. The aggregate unpaid
principal amount of all loans set forth in such schedule or in such records will
be presumptive evidence of the principal amount owing and unpaid on this Note.
However, failure by Bank to make any such entry will not limit or otherwise
affect Borrower's obligations under this Note, the Loan Agreement, or the
Security Instruments. Borrower may not prepay and then reborrow any principal
sums hereunder. At no time will the total of all Advances (as hereafter
defined) hereunder exceed the total Availability (as hereinafter defined).
Interest
--------
Interest shall be at the rate per annum equal to the Prime Rate (as
hereinafter defined) plus two-and-a-half percent (2.50%). Interest shall be
charged on the outstanding principal balance of this Note from time to time
owing from the date such principal is advanced. During the term of this Note,
the rate of interest shall be based on the hereinafter defined Prime Rate from
time to time in effect. Said rate of interest shall increase and decrease
automatically and without notice in the same amount and on the same day that
said Prime Rate increases or decreases. Any reference herein to the "prime rate
of interest" or Prime Rate is hereby defined to mean the prime, base or
reference rate of interest for commercial loans set and established by Bank from
time to time, which rate is not intended to be nor is defined as the lowest rate
of interest charged by Bank to its most preferred borrowers and whether or not
such rate is actually charged. All Interest shall be calculated on the basis of
a 360-day year for actual days elapsed. Interest after maturity (whether as
stated, by acceleration or otherwise) on any and all portions of the principal
amount and any unpaid interest shall be at a rate per annum equal to six percent
(6%) above the rate otherwise then payable (hereinafter referred to as the
"Default Rate of Interest"). Interest shall be payable in arrears and shall
accrue as of the date of the first Advance hereunder.
Payments
--------
Interest only on the unpaid principal balance of this Note shall be due and
payable monthly in arrears commencing on the last day of April, 2003, with
successive payments due on the last day of each succeeding and consecutive month
thereafter, and continuing until maturity (as stated, by acceleration or
otherwise), at which time the then outstanding principal amount hereof, which is
acknowledged by Borrower to be a balloon payment, together with interest and any
and all other amounts due hereunder or under the hereinafter described Security
Instruments shall be due and payable. All payments under this Note shall be
applied, at Bank's discretion, to payment of accrued interest, late fees and any
other amounts due and payable by Borrower hereunder or under the Security
Instruments with the balance to be applied towards the principal amount owed
hereunder.
Prepayments; Required Payments
--------------------------------
Borrower may prepay this Note in whole or in part at any time without
premium or penalty. Any and all dividends payable to Medical Venture Partners,
LLC, a Delaware limited liability company, and/or Borrower arising from the
ownership of shares of stock of NeoGenomics, Inc., a Florida corporation
("NeoGenomics"), and/or NeoGenomics, Inc. (formerly known as American
Communications Enterprises, Inc., a Nevada corporation) ("NeoGenomics Parent"),
shall be paid to Bank to be applied to amounts due hereunder at Bank's
discretion. Any and all principal, interest payments and late fees paid by
NeoGenomics to Borrower pursuant to any instruments, agreements and/or documents
which are the subject of the Collateral Assignment of Loan (as hereinafter
defined), excluding, however, interest payments made by NeoGenomics to Borrower
in excess of those interest payments owed by Borrower to Bank, shall be
immediately paid to Bank to be applied to the Liabilities (as defined in the
Loan Agreement) at Bank's discretion. No prepayment or required payment made
pursuant to this section shall be deemed to relieve Borrower of its obligation
to make other payments hereunder, including, without limitation any scheduled
interest payment.
Term of Note
--------------
The entire unpaid principal balance of this Note, together with accrued
interest thereon, shall be due and payable unless earlier accelerated as
provided herein, on April 14, 2005, subject to extension by Bank in its sole
discretion ("Maturity Date").
Place of Payments
-------------------
Payments shall be payable in lawful money of the United States to Bank at
its office at 999 Vanderbilt Beach Road, P.O. Box 413021, Xxxxxx, Xxxxxxx 00000,
or at such place as shall hereafter be designated by written notice from the
holder to the Borrower.
Monetary Default
-----------------
Upon the failure to make any payment required hereunder or under any of the
other Security Instruments or under any other obligation of Borrower to Bank
when due, the entire unpaid principal of this Note, together with accrued
interest thereon and any other sums due to Bank by Borrower, shall become at
once due and collectible at the option of the Bank or holder, without notice or
demand and Bank or holder may proceed to foreclose all liens and security
interests securing this Note. The notice of the exercise of the option to
accelerate contained in this paragraph is hereby expressly waived by Borrower.
Failure of the Bank or holder to exercise this option shall not constitute a
waiver of the right to exercise the same in the event of any subsequent default.
"Security Instruments"
-----------------------
The payment of this Note is secured by valid and subsisting (a) Loan
Agreement, (b) Security Agreement of even date herewith executed by Borrower in
favor of Bank, as the same may be amended, modified, extended, replaced or
restated from time to time ("Borrower Security Agreement"), (c) Security
Agreement of even date herewith executed by NeoGenomics in favor of Bank, as the
same may be amended, modified, extended, replaced, or restated from time to time
("NeoGenomics Security Agreement"), (d) Four (4) separate Guaranties, each of
even date herewith, executed by Xxxx Xxxxxxx ("Xxxxxxx"), Xxxxx Xxxxxxx (aka
Xxxxxxxx X. Xxxxxxx) ("Xxxxxxx "), Xxxxx Xxxxx ("Xxxxx"), and NeoGenomics
(collectively, jointly and severally hereinbefore and hereinafter "Guarantors"
and Xxxxxxx, Xxxxxxx and Xxxxx being collectively and severally referred to as
"Individual Guarantors"), as either or any of the same may be amended, modified,
extended, replaced, or restated from time to time (collectively, jointly and
severally, the "Guaranty"), (e) Collateral Assignment of Loan Documents executed
by Borrower and NeoGenomics in favor of Bank dated of even date herewith, as the
same may be amended, modified, extended, replaced or restated from time to time
(hereinbefore and hereafter "Collateral Assignment of Loan"), (f) Collateral
Assignment of Life Insurance Policies assigning life insurance policies to be
obtained on the lives of Individual Guarantors in an amount of not less than
Seven Hundred Fifty Thousand Dollars ($750,000.00) in the aggregate, to be
delivered to Bank within thirty (30) days after the execution of this Note
("Life Insurance Assignments"), and (g) Stock Pledge Agreement dated of even or
approximately even date herewith executed by Xxxxxxx in favor of Bank, as the
same may be amended, modified, extended, replaced or restated from time to time
(hereinbefore and hereafter "Stock Pledge Agreement"). The Loan Agreement, the
Borrower Security Agreement, the NeoGenomics Security Agreement, the Guaranty,
the Stock Pledge Agreement, the Collateral Assignment of Loan, the Life
Insurance Assignments, and all other instruments now or hereafter executed in
connection with or as security for this Note or any other obligations of
Borrower to Bank have heretofore and shall hereinafter be collectively referred
to as the "Security Instruments."
Security and Non-Monetary Default
------------------------------------
All of the agreements, conditions, covenants, warranties, representations,
provisions and stipulations made by or imposed upon Borrower in the Security
Instruments are hereby made a part of this Note to the same extent, and with the
same force and effect, as if they were fully recited herein. Should there be an
Event of Default (as defined in the Loan Agreement), then the Bank, or holder,
shall have (after the expiration of any applicable grace period and notice
expressly set forth in the Loan Agreement), in addition to any and all other
rights, remedies and recourses available to it, the right and option to declare
the entire unpaid principal balance and accrued interest on this Note and any
other sums due to Bank by Borrower at once due and payable without further
demand or presentment for payment to Borrower, and proceed to foreclose all
liens and security interests securing the payment of same and to invoke all
rights, remedies and recourses relating thereto. The notice of the exercise of
the option to accelerate contained in this paragraph is hereby expressly waived
by Borrower. Failure of the Bank or holder to exercise the option contained in
this paragraph shall not constitute a waiver of the right to exercise the same
in the event of any subsequent default.
Late Charge
------------
In the event that any payment herein provided for shall become overdue for
a period in excess of ten (10) days, a late charge of five percent (5%) of such
amount so overdue shall become immediately due to the Bank or holder, not as a
penalty, but as agreed compensation to Bank or holder for the additional costs
and expenses incident to such default in making a payment or payments. Borrower
acknowledges that the exact amount of such costs and expenses may be difficult,
if not impossible, to determine with certainty, and further acknowledges and
confesses the amount of such charge to be a consciously considered, good faith
estimate of the actual damage to Bank or holder by reason of such default. Said
charge shall be payable in any event no later than the due date of the next
subsequent payment hereunder. Assessment of the late charge shall not in any
event be deemed to extend the date upon which such installment is due. Failure
to pay an assessed late charge is an event of default. The assessment and/or
collection of any late charge shall in no way impair Bank's right to pursue any
other remedies upon default hereunder, nor shall the acceptance by Bank of any
late payment or other performance which does not strictly comply with the terms
of this Note or any of the Security Instruments, be deemed to be a waiver of any
rights of Bank arising as a result of any other failure to comply.
Default Rate
-------------
In the event of any default hereunder or under any of the Security
Instruments, the unpaid principal balance of this Note and accrued interest
thereon, together with the late charge set forth in the preceding paragraph and
all other sums due to Bank or holder by Borrower, shall at the option of Bank
bear interest at the Default Rate of Interest from the date of occurrence of any
such Event of Default until all sums are paid in full.
Right of Set-Off
------------------
Borrower grants to Bank a contractual possessory security interest in, and
hereby assigns, conveys, delivers, pledges and transfers to Bank all Borrower's
right, title and interest in and to, the accounts of Borrower with Bank (whether
checking, savings, or some other account), including without limitation all
accounts held jointly with someone else and all accounts Borrower may open in
the future, excluding, however, all XXX and Xxxxx accounts. Borrower authorizes
Bank, to the extent permitted by applicable law and upon the occurrence of any
default hereunder or under any of the Security Instruments, to charge or set-off
all sums owing on this Note against any and all such accounts, provided,
however, without impairing or limiting Bank's security interest, that Bank shall
not set-off against any XXX or Xxxxx accounts.
Conditions for Advance
------------------------
No Advance shall be made hereunder in excess of the Availability. The
amount of Availability shall be equal twice the lending value (calculated by
Bank pursuant to its standard lending policies in effect from time to time) of
Additional Collateral provided by the Individual Guarantors from time to time.
Collateral provided at the time of execution of this Note shall not constitute
Additional Collateral or create any Availability except the Initial Availability
of One Hundred Twenty-Five Thousand Dollars ($125,000.00). Availability shall
be increased from time to time in increments of at least Two Hundred Fifty
Thousand Dollars ($250,000.00) (or such lesser amount as Bank may agree), with
additional Collateral provided in increments of at least One Hundred Twenty-Five
Thousand Dollars ($125,000.00) (or such lesser amount as Bank may agree). All
Additional Collateral must be acceptable to Bank in its sole discretion. The
delivery of Additional Collateral shall not create Availability unless and until
Bank shall have received such additional documents, instruments and/or
certifications as it shall deem necessary to create, perfect and/or maintain a
security interest and/or lien on such Additional Collateral in favor of Bank.
Definitions
-----------
As used herein, the following terms shall have the following meaning:
"Additional Collateral" shall mean such collateral hereafter granted by
Individual Guarantors to create Availability.
"Advance" shall mean each principal amount advanced hereunder.
"Availability" shall mean the maximum amount permitted to be drawn by
Borrower hereunder based upon the value of collateral granted by the Individual
Guarantors to secure Advances, as described in this Note.
"GAAP" means generally accepted accounting principles, consistently
applied.
"Person" means any individual, entity or governmental agency, and shall be
construed in its broadest sense.
Additional Requirements
------------------------
Borrower shall submit to Bank the following:
(a) Additional Collateral in connection with any increase in Availability;
(b) within three (3) days of filing, complete copies of its federal tax
returns, with all schedules;
(c) with any increase in Availability, the required commitment fee pursuant
to the Loan Agreement; and
(f) such additional documents regarding Borrower's financial condition,
assets or ability to repay Advances as Bank may reasonably deem necessary or
desirable.
Depository Relationship; Billpayer 2000
------------------------------------------
Prior to the execution of this Note, Borrower has established and, at all
times hereafter will maintain, the Bank as its sole depository institution and
will use Bank's "Billpayer 2000" program (as the same may be modified from time
to time), and agrees to open such accounts, execute such documents, and perform
any other acts necessary to maintain said relationship and program.
Waiver of Laws
----------------
Borrower hereby waives the benefit of any laws which now or hereafter might
authorize the stay of any execution to be issued on any judgment recovered on
this Note or the exemption of any property from levy or sale thereunder.
Borrower also waives and releases unto Bank or holder hereof, all errors,
defects and imperfections whatsoever of a procedural nature in the entering of
any judgment or any process or proceedings relating thereto.
WAIVER OF RIGHT TO TRIAL BY JURY.
--------------------------------------
BORROWER AND BANK EACH HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, COUNTERCLAIM OR CROSS-CLAIM
ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THIS NOTE, THE
SECURITY INSTRUMENTS, THE OBLIGATIONS EVIDENCED HEREBY, AND/OR ANY COLLATERAL OR
ANY TRANSACTION ARISING THEREFROM OR RELATED HERETO.
Non-Waiver
----------
The remedies of this Note and the aforedescribed Security Instruments
securing the same, providing for the enforcement of the payment of the principal
sum thereby secured, together with the interest thereon, and for the performance
of the covenants, conditions and agreements, matters and things herein and
therein contained, are cumulative and concurrent and may be pursued singly or
successively or together, at the sole discretion of Bank or holder, and may be
exercised as often as occasion therefor shall occur. The waiver by Bank or any
holder hereof of, or failure to enforce any covenant or condition of this Note
or the Security Instruments, or to declare any default thereunder or hereunder,
shall not operate as a waiver of any subsequent default or affect the right of
the Bank or holder to exercise any right or remedy not expressly waived in
writing by Bank or holder.
Payment of Expenses
---------------------
Borrower shall pay Bank, concurrent herewith, a commitment fee in the
amount of $5,000.00 at closing, and shall pay, upon receipt of an invoice
therefor, all legal fees and other out-of-pocket expenses incurred by Bank in
connection herewith.
Costs of Collection
---------------------
Borrower hereby unconditionally agrees to pay the costs of collection of
this Note, including, but not limited to, reasonable attorney fees incurred by
Bank or holder, if collectible in the jurisdiction in which a judgment is
rendered or sought to be enforced.
Acknowledgment of Type of Debt and Use of Proceeds
----------------------------------------------------------
Borrower hereby acknowledges, warrants and represents that this is not a
consumer transaction and that the principal sum evidenced hereby was not used
for any consumer purpose but was used solely in connection with a commercial,
business transaction. Borrower hereby acknowledges, warrants and represents
that it will use all Advances solely as and for funds in an amount not to exceed
Two Hundred Fifty Thousand Dollars ($250,000.00) for its working capital
purposes (including, without limitation, its acquisition of stock of
NeoGenomics, Inc., a Nevada corporation, the parent of NeoGenomics), and the
remainder as loans to NeoGenomics, and for no other purposes.
Binding Effect
---------------
This obligation shall bind Borrower and Borrower's successors and permitted
assigns, as the case may be, and the benefits hereof shall inure to any holder
hereof and its successors and assigns.
Waiver of Presentment, Etc.
------------------------------
Borrower, and all sureties, endorsers and guarantors of this Note, if any,
hereby: (a) waive demand, presentment for payment, notice of non-payment,
protest, notice of protest and all other notice (unless notice is specifically
otherwise required in this Note), filing of suit or diligence in collecting this
Note, in enforcing any of the security rights or in proceeding against any of
the property which is collateral for this Note; (b) agree to any substitution,
exchange, addition or release of any such property or the addition or release of
any party or Person primarily or secondarily liable herein; (c) agree that Bank
or holder shall not be required first to institute any suit, or to exhaust its
remedies against the Borrower or any other Person or party in order to enforce
payment of this Note; (d) consent to any extension, rearrangement, renewal or
postponement of time of payment of this Note and to any other indulgence with
respect hereto without notice, consent or consideration to any of them; and (e)
agree that, notwithstanding the occurrence of any of the foregoing, except as to
any such Person expressly released in writing by Bank or holder, they shall be
and remain jointly and severally, directly and primarily, liable for all sums
due hereunder and under any and all of the Security Instruments.
Governing Law
--------------
This Note and the Security Instruments shall be governed and construed in
accordance with the laws of the Xxxxx xx Xxxxxxx xxx xx xxx Xxxxxx Xxxxxx.
Severability - Usury
----------------------
The unenforceability or invalidity of any one or more provisions, clauses,
sentences and/or paragraphs of this Note shall not render any other provision,
clause, sentence and/or paragraph herein contained unenforceable or invalid.
It is the intention of Bank or holder, which is signified by acceptance of
this Note, that this Note shall comply with all applicable usury laws now or
hereafter in effect. Accordingly, to the extent that any rate of interest
stated in this Note exceeds the maximum rate of interest which may be charged on
loans of the type and nature evidenced by this Note, then said interest shall be
abated and reduced to the extent necessary to conform with the maximum
permissible rate.
IN WITNESS WHEREOF, Borrower has executed this Draw Note as of the date and
year first above written in Naples, Florida.
MVP 3, LP, a Delaware limited partnership
("Borrower")
By: Medical Venture Partners, LLC ,
a Delaware limited liability company,
its general partner
________________________________
Print Name_______________________
By: ________________________________
________________________________
Xxxxxx Xxxxx, Member
Print Name_______________________
39
EXHIBIT C
---------
FORM OF COLLATERAL ASSIGNMENT OF LIFE INSURANCE POLICY
------------------------------------------------------
SCHEDULE 9(F)
-------------
LEGAL PROCEEDINGS
-----------------
The Parent has received several e-mails and telephone messages from persons
purporting to be current shareholders of the Parent threatening legal action
against the Parent and its directors with respect to the Parent's recently
announced reverse stock split. These claims have generally indicated that the
parties propose to undertake litigation against the Parent and its directors due
to the negative impact of the reverse stock split on the Parent's shareholders.
To the knowledge of the Parent, no legal proceedings have been filed with
respect to any such claims.
SCHEDULE 14(A)
--------------
BORROWER'S EXISTING INDEBTEDNESS
--------------------------------
Xxxxxxx X. Xxxx, M.D. $31,273.00
Naples Women's Center $60,165.00
