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EXHIBIT 10.4.29
COVENANT AGREEMENT
THIS IS AN AGREEMENT (the "Agreement") dated as of September 25 ,1998, by Bank
One, NA (Lender); and Neoprobe Corporation (individually, collectively and
interchangeably, "Borrower").
RECITALS
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Lender has extended or is extending one or more loans to Borrower (individually,
collectively and interchangeably, and including any renewals, extensions or
modifications thereof, the "Loan") evidenced by one or more promissory notes
(individually, collectively and interchangeably, and including any renewals,
extensions or modifications thereof, the "Note") as follows:
Date of Note Principal Amount of Note
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September 25, 1998 $1,000,000.00
AGREEMENT
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NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
RECITALS. The above Recitals are incorporated by reference into the body of this
Agreement as if they were repeated verbatim herein.
FINANCIAL INFORMATION. Borrower covenants and agrees with Lender that, while
this Agreement is in effect, Borrower shall:
QUARTERLY STATEMENTS. As soon as available, and in no event later than
forty-five (45) days after the end of each fiscal quarter of Borrower,
furnish to Lender Borrower's financial statements for the period ended,
including a balance sheet and income statement, prepared and certified
as correct (subject to year-end review adjustments), to the best
knowledge and belief, by Borrower's chief financial officer or other
person reasonably acceptable to Lender. All such statements shall be
prepared in accordance with generally accepted accounting principles or
such other accounting principles acceptable to Lender in its sole
discretion.
ANNUAL STATEMENTS. As soon as available, and in no event later than one
hundred twenty [120] days after the end of each fiscal year of
Borrower, furnish to Lender Borrower's annual financial statements for
the year ended, including a balance sheet, income statement and
statement of cash flows, such financial statements to be reviewed by
certified public accountants reasonably acceptable to Lender. All such
statements shall be prepared in accordance with generally accepted
accounting principles or such other accounting principles acceptable to
Lender in its sole discretion.
ADDITIONAL INFORMATION. Furnish Lender with such additional
information, statements and reports with respect to Borrower's
financial condition and business operations as Lender may request from
time to time.
LETTER(S) OF CREDIT; FURTHER RESTRICTIONS ON ADVANCES UNDER THE NOTE. Borrower
may request that Lender issue a letter or letters of credit in an aggregate
undrawn amount of the Note (the "Letters of Credit") from time to time for the
benefit of Borrower (the "Letters of Credit Commitment). The letters of Credit
Commitment shall be available to the Borrower subject to the limitations herein,
in whole or in part and from time to time until July 30, 1999; provided that the
maturity of any Letters of Credit shall not be greater than
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one year from the date of issuance nor later than August 31, 1999. Prior to the
issuance of any Letter of Credit, Borrower agrees to execute and deliver to
Lender such standard application and/or reimbursement agreement in use by lender
at that time (each a "Letter of Credit Agreement"). Borrower agrees that, at the
sole discretion of Lender, whenever amounts become due to Lender from Borrower
for reimbursement under a Letter of Credit Agreement, Lender may (but shall not
be obligated to) treat such event as a request for an advance under this note
and directly apply the proceeds of such advance to the payment of the then
outstanding reimbursement obligations of Borrower under the Letter of Credit
Agreement. The Letter of Credit Agreement with respect to the issuance of any
letter of Credit pursuant to this Note shall provide, among other things, for
the payment to Lender by Borrower of an annual commission of one percent [1.00%]
per annum, based on a 360 day year basis and subject to a minimum of Two Hundred
Dollars [$200.00] per annum.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each request for an advance or
disbursement of Loan proceeds, as of the date of any renewal, extension or
modification of any Loan, and at all times any indebtedness exists thereunder,
or any commitment or obligation to make any Loan exists hereafter: (a) Borrower,
if not an individual, is an entity duly organized and validly existing under the
laws of Delaware. (b) The execution, delivery and performance of this Agreement
and all other Related Documents (as defined in the Note) to which Borrower is a
party have been duly authorized by all necessary action, require no further
consent of any person, regulatory authority or governmental body, and do not
conflict with, result in a violation of, or constitute a default under any
agreement binding upon Borrower, or any law, regulation or court decree or order
applicable to Borrower. (c) This Agreement and all other Related Documents to
which Borrower is a party constitute legal, valid and binding obligations of
Borrower enforceable in accordance with their respective terms.
TERM. This Agreement shall be effective until the Loan has been paid in full and
Lender has no commitments or obligations to make or allow advances or draws
under the Loan.
DEFAULT. Failure of Borrower to abide by any of the terms, conditions, covenants
or provisions of this Agreement shall, in addition to all other defaults or
events of default, be a default or an event of default under the Note.
MISCELLANEOUS PROVISIONS.
GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of Ohio, without giving effect to conflict of
laws rules.
ENTIRE AGREEMENT; BINDING EFFECT. This Agreement, together with the
Note and all Related Documents, constitutes the entire understanding
and agreement of the parties as to the matters set forth herein, and
shall be binding upon, and inure to the benefit of, the parties hereto
and their respective successors and assigns.
AMENDMENT. No alteration, amendment, rescission, supplementation,
modification or waiver of this Agreement shall be effective unless
given in writing and signed by the party or parties sought to by
charged or bound thereby.
TIME. Time is of the essence in the performance of this Agreement.
WAIVER. Lender shall not be deemed to have waived any rights under this
Agreement unless such waiver is in writing and signed by Lender. No
delay or omission on the part of Lender in exercising any right shall
operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Agreement shall not prejudice or
constitute a waiver of Lender's right otherwise to demand strict
compliance with that provision or any other provision of this
Agreement. No prior waiver by Lender, or any course of dealing between
Lender and Borrower, or between Lender and any party to any other
Related Document, shall constitute a waiver of any of Lender's rights
or of any obligations of Borrower
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or such other party as to any future transactions. Whenever the consent
of Lender is required under this Agreement, the granting of such
consent by Lender in any instance shall not constitute continuing
consent in subsequent instances where such consent is required, and in
all cases such consent may be granted or withheld in the sole
discretion of Lender.
HEADINGS. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the
provisions of this Agreement.
COSTS AND EXPENSES. Borrower agrees to pay upon demand all of Lender's
expenses, including attorneys' fees, incurred in connection with the
preparation, execution, enforcement, modification and collection of
this Agreement or in connection with the Loan made pursuant to this
Agreement. Lender may hire one or more attorneys to help collect the
Loan if Borrower does not pay, and Borrower will pay Lender's
reasonable attorneys' fees.
SEVERABILITY. If a court of competent jurisdiction finds any provision
of this Agreement to be invalid or unenforceable as to any person or
circumstance, such finding shall not render that provision invalid or
unenforceable as to any other person or circumstance. If feasible, any
such offending provision shall be deemed to be modified to be within
the limits of enforceability or validity; however, if the offending
provision cannot be so modified, it shall be stricken and all other
provisions of this Agreement in all other respects shall remain valid
and enforceable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above, but actually on the dates set forth below.
BORROWER: Neoprobe Corporation
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President, Finance
Date: 9/28/98
LENDER: BANK ONE, NA
By: /s/ Xxxxx X. Xxxxx
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Title: Vice President
Date: 9/28/98
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