EXHIBIT 10.26
CHANGE IN TERMS AGREEMENT
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Principal Loan Date Maturity Loan No Call/Coll Account Officer Initials
$1,200,000.00 12-11-2003 05-02-2004 9212000122-1 9212000112-1 12450
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References in the shaded area are for Lender's use only and do not limit the applicability of this
document to any particular loan or item. Any item above containing " * * * " has been omitted due to
text length limitations
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Borrower: Biofield Corp. Lender: California Bank & Trust
0000 Xxxx Xxxxx Xxxxx Xxxxx X Xxxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000-0000 0000 Xx Xxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
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Principal Amount: $1,200,000.00 Initial Rate: 5.000% Date of Agreement: December 11, 2003
DESCRIPTION OF EXISTING INDEBTEDNESS.
The Promissory Note dated June 23, 2000 in the original amount of $500,000.00 as
amended by those certain Change In Terms Agreements dated August 10, 2001,
November 5, 2001, January 2, 2002, June 24, 2002 and June 9, 2003, from Biofield
Corp. to Lender.
DESCRIPTION OF COLLATERAL.
1) Xxxxxx Xxxxxxx Xxxx Xxxxxx Account No. 286-11197, in the name of the Long
Family Trust dated December 30, 1974.
DESCRIPTION OF CHANGE IN TERMS.
1) The Maturity Date is hereby amended from November 30, 2003 to May 2, 2004.
2) All other terms and conditions shall remain the same.
PROMISE TO PAY. Biofield Corp. ("Borrower") promises to pay to California Bank &
Trust ("Lender"), or order, in lawful money of the United States of America, the
principal amount of One Million Two Hundred Thousand & 00/100 Dollars
($1,200,000.00) or so much as may be outstanding, together with interest on the
unpaid outstanding principal balance of each advance. Interest shall be
calculated from the date of each advance until repayment of each advance.
PAYMENT. Borrower will pay this loan in one payment of all outstanding principal
plus all accrued unpaid interest on May 2, 2004. In addition, Borrower will pay
regular monthly payments of all accrued unpaid interest due as of each payment
date, beginning January 2, 2004, with all subsequent interest payments to be due
on the same day of each month after that. Unless otherwise agreed or required by
applicable law, payments will be applied first to any accrued unpaid interest;
then to principal; then to any unpaid collection costs; and then to any late
charges. Interest on this Agreement is computed on a 365/360 simple interest
basis; that is, by applying the ratio of the annual interest rate over a year of
360 days, multiplied by the outstanding principal balance, multiplied by the
actual number of days the principal balance is outstanding. Borrower will pay
Lender at Lender's address shown above or at such other place as Lender may
designate in writing.
VARIABLE INTEREST RATE. The interest rate on this Agreement is subject to change
from time to time based on changes in an index which is the rate of interest set
from time to time by Bank as its Prime Rate. California Bank & Trust Prime Rate
is determined by Bank as a means of pricing credit extensions to some customers
and is neither tied to any external rate of interest or index nor is it
necessarily the lowest rate of interest charged by Bank at any given time for
any particular class of customers or credit extensions (the "Index"). The Index
is not necessarily the lowest rate charged by Lender on its loans and is set by
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Lender in its sole discretion. If the Index becomes unavailable during the term
of this loan, Lender may designate a substitute index after notifying Borrower.
Lender will tell Borrower the current Index rate upon Borrower's request. The
interest rate change will not occur more often than each day. Borrower
understands that Lender may make loans based on other rates as well. The Index
currently is 4.000% per annum. The interest rate to be applied to the unpaid
principal balance of the Note will be at a rate of 0.500 percentage points over
the Index, adjusted if necessary for any minimum and maximum rate limitations
described below, resulting in an initial rate of 5.000% per annum.
Notwithstanding the foregoing, the variable interest rate or rates provided for
in the Note will be subject to the following minimum and maximum rates. NOTICE:
Under no circumstances will the interest rate on the Note be less than 5.000%
per annum or more than the maximum rate allowed by applicable law.
PREPAYMENT; MINIMUM INTEREST CHARGE. Borrower agrees that all loan fees and
other prepaid finance charges are earned fully as of the date of the loan and
will not be subject to refund upon early payment (whether voluntary or as a
result of default), except as otherwise required by law. In any event, even upon
full prepayment of this Agreement, Borrower understands that Lender is entitled
to a minimum interest charge of $200.00. Other than Borrower's obligation to pay
any minimum interest charge, Borrower may pay without penalty all or a portion
of the amount owed earlier than it is due. Early payments will not, unless
agreed to by Lender in writing, relieve Borrower of Borrower's obligation to
continue to make payments of accrued unpaid interest. Rather, early payments
will reduce the principal balance due. Borrower agrees not to send Lender
payments marked "paid in full"; "without recourse", or similar language. If
Borrower sends such a payment, Lender may accept it without losing any of
Lender's rights under this Agreement, and Borrower will remain obligated to pay
any further amount owed to Lender. All written communications concerning
disputed amounts, including any check or other payment instrument that indicates
that the payment constitutes "payment in full" of the amount owed or that is
tendered with other conditions or limitations or as full satisfaction of a
disputed amount must be mailed or delivered to: California Bank & Trust, Golden
Triangle, 0000 Xx Xxxxx Xxxxxxx Xxxxx, Xxx Xxxxx, XX 00000.
LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged
6.000% of the regularly scheduled payment or $500.00, whichever is less.
INTEREST AFTER DEFAULT. Upon default, the variable interest rate on this
Agreement shall immediately increase to 5.500 percentage points over the Index,
if permitted under applicable law.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
Payment Default. Borrower fails to make any payment when due under the
Indebtedness.
Other Defaults. Borrower fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Agreement or
in any of the Related Documents or to comply with or to perform any
term, obligation, covenant or condition contained in any other
agreement between Lender and Borrower.
Default in Favor of Third Parties. Borrower defaults under any loan,
extension of credit, security agreement, purchase or sales agreement,
or any other agreement, in favor of any other creditor or person that
may materially affect any of Borrower's property or Borrower's ability
to perform Borrower's obligations under this Agreement or any of the
Related Documents.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this
Agreement or the Related Documents is false or misleading in any
material respect, either now or at the time made or furnished or
becomes false or misleading at any time thereafter.
Insolvency. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a
receiver for any part of Borrower's property, any assignment for the
benefit of creditors, any type of creditor workout, or the commencement
of any proceeding under any bankruptcy or insolvency laws by or against
Borrower.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the Indebtedness.
This includes a garnishment of any of Borrower's accounts, including
deposit accounts, with Lender. However, this Event of Default shall not
apply if there is a good faith dispute by Borrower as to the validity
or reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Borrower gives Lender written notice of
the creditor or forfeiture proceeding and deposits with Lender monies
or a surety bond for the creditor or forfeiture proceeding, in an
amount determined by Lender, in its sole discretion, as being an
adequate reserve or bond for the dispute.
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Events Affecting Guarantor. Any of the preceding events occurs with
respect to any guarantor, endorser, surety, or accommodation party of
any of the Indebtedness or any guarantor, endorser, surety, or
accommodation party dies or becomes incompetent, or revokes or disputes
the validity of, or liability under, any Guaranty of the Indebtedness
evidenced by this Note. In the event of a death, Lender, at its option,
may, but shall not be required to, permit the guarantor's estate to
assume unconditionally the obligations arising under the guaranty in a
manner satisfactory to Lender, and, in doing so, cure any Event of
Default.
Change In Ownership. Any change in ownership of twenty-five percent
(25%) or more of the common stock of Borrower.
Adverse Change. A material adverse change occurs in Borrower's
financial condition, or Lender believes the prospect of payment or
performance of the Indebtedness is impaired. Insecurity. Lender in good
faith believes itself insecure.
Cure Provisions. If any default, other than a default in payment is
curable and if Borrower has not been given a notice of a breach of the
same provision of this Agreement within the preceding twelve (12)
months, it may be cured (and no event of default will have occurred) if
Borrower, after receiving written notice from Lender demanding cure of
such default: (1) cures the default within fifteen (15) days; or (2) if
the cure requires more than fifteen (15) days, immediately initiates
steps which Lender deems in Lender's sole discretion to be sufficient
to cure the default and thereafter continues and completes all
reasonable and necessary steps sufficient to produce compliance as soon
as reasonably practical.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Agreement and all accrued unpaid interest immediately due, and
then Borrower will pay that amount.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect
this Agreement if Borrower does not pay. Borrower will pay Lender that amount.
This includes, subject to any limits under applicable law, Lender's attorneys'
fees and Lender's legal expenses, whether or not there is a lawsuit, including
attorneys' fees, expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), and appeals. Borrower also
will pay any court costs, in addition to all other sums provided by law.
JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any
action, proceeding, or counterclaim brought by either Lender or Borrower against
the other.
GOVERNING LAW. This Agreement will be governed by, construed and enforced in
accordance with federal law and the laws of the State of California. This
Agreement has been accepted by Lender in the State of California.
CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request to
submit to the jurisdiction of the courts of Xxxxxx County, State of Georgia.
COLLATERAL. Borrower acknowledges this Agreement is secured by the following
collateral described in the security instrument listed herein: Xxxxxx Xxxxxxx
Xxxx Xxxxxx Account No. 286-11197, in the name of the Long Family Trust dated
December 30, 1974 described in a Commercial Security Agreement dated June 23,
2000.
LINE OF CREDIT. This Agreement evidences a revolving line of credit. Advances
under this Agreement may be requested either orally or in writing by Borrower or
as provided in this paragraph. Lender may, but need not, require that all oral
requests be confirmed in writing. All communications, instructions, or
directions by telephone or otherwise to Lender are to be directed to Lender's
office shown above. Borrower agrees to be liable for all sums either: (A)
advanced in accordance with the instructions of an authorized person or (B)
credited to any of Borrower's accounts with Lender. The unpaid principal balance
owing on this Agreement at any time may be evidenced by endorsements on this
Agreement or by Lender's internal records, including daily computer print-outs.
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Lender will have no obligation to advance funds under this Agreement if: (A)
Borrower or any guarantor is in default under the terms of this Agreement or any
agreement that Borrower or any guarantor has with Lender, including any
agreement made in connection with the signing of this Agreement; (B) Borrower or
any guarantor ceases doing business or is insolvent; (C) any guarantor seeks,
claims or otherwise attempts to limit, modify or revoke such guarantor's
guarantee of this Agreement or any other loan with Lender; (D) Borrower has
applied funds provided pursuant to this Agreement for purposes other than those
authorized by Lender; or (E) Lender in good faith believes itself insecure.
CONTINUING VALIDITY. Except as expressly changed by this Agreement, the terms of
the original obligation or obligations, including all agreements evidenced or
securing the obligation(s), remain unchanged and in full force and effect.
Consent by Lender to this Agreement does not waive Lender's right to strict
performance of the obligation(s) as changed, nor obligate Lender to make any
future change in terms. Nothing in this Agreement will constitute a satisfaction
of the obligation(s). It is the intention of Lender to retain as liable parties
all makers and endorsers of the original obligation(s), including accommodation
parties, unless a party is expressly released by Lender in writing. Any maker or
endorser, including accommodation makers, will not be released by virtue of this
Agreement. If any person who signed the original obligation does not sign this
Agreement below, then all persons signing below acknowledge that this Agreement
is given conditionally, based on the representation to Lender that the
non-signing party consents to the changes and provisions of this Agreement or
otherwise will not be released by it. This waiver applies not only to any
initial extension, modification or release, but also to all such subsequent
actions.
FINANCIAL STATEMENT CERTIFICATIONS. The undersigned hereby certifies to
California Bank & Trust ("Bank") that all financial information ("Information")
submitted to Bank now and at all times during the terms of this loan does, and
will, fairly and accurately represent the financial condition of the
undersigned, all Borrowers and Guarantors. Financial Information includes, but
is not limited to all Business Financial Statements (including interim and
Year-End financial statements that are company prepared and/or CPA-prepared),
Business Income Tax Returns, Borrowing Base Certificates, Accounts Receivable
and Accounts Payable Agings, Personal Financial Statements and Personal Income
Tax Returns. The undersigned understands that the Bank will rely on all
financial information, whenever provided, and that such information is a
material inducement to Bank to make, to continue to make, or otherwise extend
credit accommodations to the undersigned. The undersigned covenants and agrees
to notify Bank of any adverse material changes in her/his/its financial
condition in the future. The undersigned further understands and acknowledges
that there are criminal penalties for giving false financial information to
federally insured financial institutions.
DEPOSIT AGREEMENT SECURITY. Borrower hereby grants a security interest to Lender
in any and all deposit accounts (checking, savings, money market or time) of
Borrower at Lender, now existing or hereinafter opened, to secure its
Indebtedness hereunder. This includes all deposit accounts Borrower holds
jointly with someone else.
REAFFIRMATION OF GUARANTY OBLIGATIONS. An exhibit, titled "REAFFIRMATION OF
GUARANTY OBLIGATIONS," is attached to this Agreement and by this reference is
made a part of this Agreement just as if all the provisions, terms and
conditions of the Exhibit had been fully set forth in this Agreement.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this Agreement on
transfer of Borrower's interest, this Agreement shall be binding upon and inure
to the benefit of the parties, their successors and assigns. If ownership of the
Collateral becomes vested in a person other than Borrower, Lender, without
notice to Borrower, may deal with Borrower's successors with reference to this
Agreement and the Indebtedness by way of forbearance or extension without
releasing Borrower from the obligations of this Agreement or liability under the
Indebtedness.
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MISCELLANEOUS PROVISIONS. Lender may delay or forgo enforcing any of its rights
or remedies under this Agreement without losing them. Borrower and any other
person who signs, guarantees or endorses this Agreement, to the extent allowed
by law, waive any applicable, statute of limitations, presentment, demand for
payment, and notice of dishonor. Upon any change in the terms of this Agreement,
and unless otherwise expressly stated in writing, no party who signs this
Agreement, whether as maker, guarantor, accommodation maker or endorser, shall
be released from liability. All such parties agree that Lender may renew or
extend (repeatedly and for any length of time) this loan or release any party or
guarantor or collateral; or impair, fail to realize upon or perfect Lender's
security interest in the collateral; and take any other action deemed necessary
by Lender without the consent of or notice to anyone. All such parties also
agree that Lender may modify this loan without the consent of or notice to
anyone other than the party with whom the modification is made. The obligations
under this Agreement are joint and several. PRIOR TO SIGNING THIS AGREEMENT,
BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS AGREEMENT, INCLUDING THE
VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE
AGREEMENT.
BORROWER:
BIOFIELD CORP.
By: /s/ XXXX XXXXXXXX By: /s/ XXXXX X. XXXX, XX.
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Xxxx Xxxxxxxx, CFO of Biofield Corp. Xxxxx X. Xxxx Xx., M.D., PHD, CEO of Biofield Corp.
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DISBURSEMENT REQUEST AND AUTHORIZATION
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Principal Loan Date Maturity Loan No Call/Coll Account Officer Initials
$1,200,000.00 12-11-03 05-02-2004 9212000122-1 9212000112-1 12450
--------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicability of this document to
any particular loan or item. Any item above containing " * * * " has been omitted due to text length limitations
--------------------------------------------------------------------------------------------------------------------
Borrower: Biofield Corp. Lender: California Bank & Trust
0000 Xxxx Xxxxx Xxxxx Xxxxx X Xxxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000-0000 0000 Xx Xxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
====================================================================================================================
LOAN TYPE. This is a Variable Rate Nondisclosable Revolving Line of Credit Loan
to a Corporation for $1,200,000.00 due on May 2, 2004. The reference rate (rate
of interest set from time to time by Bank as its Prime Rate. California Bank &
Trust Prime Rate is determined by Bank as a means of pricing credit extensions
to some customers and is neither tied to any external rate of interest or index
nor is it necessarily the lowest rate of interest charged by Bank at any given
time for any particular class of customers or credit extensions, with an
interest rate floor of 5.000% currently 4.000%) is added to the margin of
0.500%, resulting in an initial rate of 5.000. This is a secured renewal loan.
PRIMARY PURPOSE OF LOAN. The primary purpose of this loan is for:
[ ] Personal, Family, or Household Purposes or Personal Investment.
[X] Business (Including Real Estate Investment).
SPECIFIC PURPOSE. The specific purpose of this loan is: Extension of existing
line of credit.
DISBURSEMENT INSTRUCTIONS. Borrower understands that no loan proceeds will be
disbursed until all of Lender's conditions for making the loan have been
satisfied. Please disburse the loan proceeds of $1,200,000.00 as follows:
Other Disbursements: $1,200,000.00
$1,200,000.00 92120001 12-1 Extension
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Note Principal: $1,200,000.00
CHARGES PAID IN CASH. Borrower has paid or will pay in cash as agreed the
following charges:
Prepaid Finance Charges Paid in Cash: $500.00
$500.00 Loan Fee
Other Charges Paid in Cash: $9,514.75
$9,500.83 Interest to December 11, 2003
$13.92 Late Charge
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Total Charges Paid in Cash: $10,014.75
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FINANCIAL STATEMENT CERTIFICATIONS. The undersigned hereby certifies to
California Bank & Trust ("Bank") that all financial information ("Information")
submitted to Bank now and at all times during the terms of this loan does, and
will, fairly and accurately represent the financial condition of the
undersigned, all Borrowers and Guarantors. Financial Information includes, but
is not limited to all Business Financial Statements (including Interim and
Year-End financial statements that are company prepared and/or CPA-prepared),
Business Income Tax Returns, Borrowing Base Certificates, Accounts Receivable
and Accounts Payable Agings, Personal Financial Statements and Personal Income
Tax Returns. The undersigned understands that the Bank will rely on all
financial information, whenever provided, and that such information is a
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material inducement to Bank to make, to continue to make, or otherwise extend
credit accommodations to the undersigned. The undersigned covenants and agrees
to notify Bank of any adverse material changes in her/his/its financial
condition in the future. The undersigned further understands and acknowledges
that there are criminal penalties for giving false financial information to
federally insured financial institutions.
ADDITIONAL DISBURSEMENT PROVISION. The disbursement allocation shown above is an
estimate only, based on information provided by outside sources. Final
allocation will be determined upon funding.
FINANCIAL CONDITION. BY SIGNING THIS AUTHORIZATION, BORROWER REPRESENTS AND
WARRANTS TO LENDER THAT THE INFORMATION PROVIDED ABOVE IS TRUE AND CORRECT AND
THAT THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN BORROWER'S FINANCIAL CONDITION
AS DISCLOSED IN BORROWER'S MOST RECENT FINANCIAL STATEMENT TO LENDER. THIS
AUTHORIZATION IS DATED DECEMBER 11, 2003.
BORROWER:
BIOFIELD CORP.
By: /s/ XXXX XXXXXXXX By: /s/ XXXXX X. XXXX, XX.
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Xxxx Xxxxxxxx, CFO of Biofield Corp. Xxxxx X. Xxxx Xx., M.D., PHD, CEO of Biofield Corp.
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