SECURED PROMISSORY NOTE (Purchase Order Financing - Non-Revolving)
Exhibit
10.12
(Purchase
Order Financing - Non-Revolving)
FOR VALUE
RECEIVED, ALPHA INNOTECH
CORPORATION, a(n)
California corporation ("Borrower"), promises
to pay to BFI BUSINESS
FINANCE, a California corporation ("Lender"), or order, at Lender's place
of business at 0000 Xxx Xxxxxxx, Xxx Xxxx, XX 00000, or at such other place as
may be designated in writing to Borrower by the holder of this Secured
Promissory Note (this "Note"), such principal sum as may be advanced
hereunder as set forth in Addendum A attached hereto and
made a part hereof, which shall be subject to the terms and conditions of that
certain Loan and Security Agreement
dated March 9, 2004 and all of the riders and amendments thereto by and between
Borrower and Lender (the “Loan Agreement”),
together with interest from the date hereof on the unpaid principal balance at a
rate (the "Rate") of Three percentage point(s) (3.00%) per annum over and above
the rate announced as the “prime” rate in the Western Edition of the Wall Street
Journal which is in effect from time to time (the “Prime Rate”); provided that
the Prime Rate shall at all times be deemed to be not less than Four percent (4.00%) per annum (the “Deemed
Prime Rate”). In the event that the Prime Rate is changed, the
adjustment in the interest rate charged shall be made on the day such change
occurs. The Prime Rate is a rate used by certain financial
institutions as one of their index rates and serves as a basis upon which
effective rates of interest are calculated for loans making reference thereto
and may not be the lowest of such financial institutions’ index
rates. Upon the occurrence of a default or an event of default under
this Note, the rate of interest on the Note shall be increased at the option of
Lender to an additional three percent (3.00%) in excess of the then applicable
interest rate. Interest shall be computed on the basis of a 360-day
year and shall be charged to Xxxxxxxx’s account on the first day of the
following month, and, if not so paid, it shall thereafter bear like interest as
the principal.
1. Lender
may, at its option, charge Xxxxxxxx's account for the principal, interest, and
fees hereunder, which are due and payable on the dates and in the manner that
follows:
Interest
payments will be due and payable in arrears commencing on the first day of the first month following disbursement and
continuing on the first day of each month
thereafter while amounts hereunder are due and owing;
Principal
payments will be due and payable as set forth in Addendum A attached hereto
and made a part hereof;
A loan
fee shall be charged as set forth in Addendum A attached hereto
and made a part hereof;
An
administrative fee of one half
of one percent
(0.50%) per month of the average
daily outstanding balance during the preceding month, (the “Administrative Fee”)
shall be charged on the first day of each
month following disbursement and monthly thereafter while amounts hereunder are
due and owing;
An
appraisal fee of -------n/a----- Dollars ($-----n/a-----) per day per appraiser, plus
out-of-pocket expenses (the “Appraisal Fee”) shall be charged for each appraisal
of the Collateral performed by Lender or its agents. Provided that no
Event of Default has occurred, Lender shall not charge Borrower more than
$750.00 plus out-of-pocket expenses incurred by Lender per year for such
appraisal fees;
Xxxxxx
will transfer all loan payments due under this Note, including all accrued
interest, Administrative Fees, and fees as set forth in Addendum
A attached hereto and made a part hereof, to the accounts receivable
line of credit extended to Borrower pursuant to the Loan Agreement;
Borrower
shall pay all fees and legal and other costs incurred by Xxxxxx in connection
with the negotiation and preparation of the Note and the documents executed in
connection herewith and the perfection of any security interest in any
collateral granted by Xxxxxxxx or any third party to Lender in connection with
this Note, including but not limited to attorneys’ fees and legal and other
costs, which Xxxxxx shall charge to Borrower’s account at the time of the
execution hereof;
On the
Purchase Order Line of Credit Maturity Date (as defined in Section 14(e) hereof)
the entire principal balance hereof, together with any and all unpaid and/or
accrued interest, loan fees, monthly Administrative Fees, and attorneys’ fees
and legal and other costs due hereunder, shall be paid in full;
Interest
not paid when due shall bear interest at the same rate as
principal. All payments hereunder are to be applied first to the
payment of accrued interest and the balance remaining applied to the payment of
principal. All principal and interest due hereunder is payable in
lawful money of the United States of America; and
In no
event shall the interest rate or rates payable under this Note, plus any other
amounts paid in connection herewith, exceed the highest rate permissible under
any law that a court of competent jurisdiction shall, in a final determination,
deem applicable. Borrower and Lender intend legally to agree upon the
rate or rates of interest (and the other amounts paid in connection herewith)
and manner of payment stated within this Note; provided, however, that anything
contained herein to the contrary notwithstanding, if said interest rate or rates
of interest (or other amounts paid in connection herewith) or the manner of
payment exceeds the maximum allowable under applicable law, then, ipso facto as of the date
of this Note, Borrower is and shall be liable only for the payment of such
maximum as allowed by law, and payment received from Borrower in excess of such
legal maximum, whenever received, shall be applied to reduce the principal
balance of this Note to the extent of such excess.
2. Voluntary
prepayments of the principal balance of this Note shall be permitted at any
time; provided that each such prepayment shall be accompanied by all interest
and any Administrative Fees that have accrued and remain unpaid with respect to
the amount of principal being repaid and a prepayment fee equal to the
following:
----------N/A---------- percent (----------N/A----------%) of the amount prepaid with
respect to any prepayments made during the 11 months following the first
principal payment on -------n/a-------.
----------N/A---------- percent (----------N/A----------%) of the amount prepaid with
respect to any prepayments made on or after ----------N/A----------, and
prior to March 31, 2008.
Amounts repaid or prepaid with
respect to this Note may not be reborrowed. Partial
prepayments of principal shall be applied to scheduled payments of principal in
the inverse order of their maturity.
3. If any
installment of principal, interest, or Administrative Fee hereunder is not paid
when due, the holder shall have the following rights in addition to the rights
set forth herein, in the Loan Agreement,
and under law:
the right
to compound interest and the Administrative Fee by adding the unpaid interest
and/or Administrative Fee to principal, with such amount thereafter bearing
interest and the Administrative Fee at the rates provided in this Note;
and
if any
installment is more than ten (10) days past due, the right to collect a charge
equal to the greater of Fifteen
and 00/100 Dollars ($15.00) or five percent (5%) of the late payment for
each month in which it is late. This charge is a result of a
reasonable endeavor by Xxxxxxxx and the holder to estimate the holder’s added
legal and other costs and damages resulting from Xxxxxxxx’s failure to make
timely payments under this Note; hence Borrower agrees that the charge shall be
presumed to be the amount of damage sustained by the holder since it is
extremely difficult to determine the actual amount necessary to reimburse the
holder for damages.
4. Borrower
expressly waives presentment, demand, protest, notice of dishonor, notice of
non-payment, notice of maturity, notice of protest, presentment for the purpose
of accelerating maturity, diligence in collection, the benefit of any exemption
under the homestead exemption laws, and all other notices and demands in
connection with the delivery, acceptance, performance, or enforcement of this
Note. Xxxxxxxx agrees that Xxxxxx may release, surrender, exchange,
or substitute any collateral now held or which may hereafter be held as security
for the payment of this Note, and may extend the time for payment or otherwise
modify the terms of payment of any part or the whole of the debt evidenced
hereby. Borrower irrevocably waives the right to direct the
application of all payments at any time hereafter received by Xxxxxx on behalf
of Xxxxxxxx, and Xxxxxxxx agrees that Lender shall have the continuing exclusive
right to apply any such payments against the then due and owing obligations of
Borrower to Lender as Lender may deem advisable.
5. It is
expressly agreed that if a default or breach occurs in the payment of any
principal or interest, as provided above, or in the payment or performance of
any other of Borrower's Obligations (as that term is defined in the Loan Agreement), at Lender’s option, the
unpaid principal balance of this Note, together with interest accrued thereon,
shall forthwith be due and payable. In the event the accounts
receivable line of credit extended to Borrower under the Loan Agreement is paid
in full, this Note shall also be due, owing, and payable.
6. This Note
is made subject to the terms and conditions of and is secured by security
interests granted by Xxxxxxxx in favor of Lender, and all covenants, conditions,
and agreements contained in the Loan
Agreement and Intellectual
Property Security Agreement dated March 30, 2005, all of which are hereby
incorporated and made a part hereof. All capitalized terms used
herein, unless otherwise defined herein, shall have the meanings ascribed to
them in the Loan Agreement.
7. Borrower
hereby consents to any and all renewals, replacements, and/or extensions of time
for payment of this Note before, at, or after maturity. This Note
shall be binding upon all legal representatives, successors, and assigns of
Xxxxxxxx. However, Xxxxxxxx may not assign this Note or any rights
hereunder without Xxxxxx’s prior written consent. No such consent by
Xxxxxx shall release Borrower or any guarantor of any Obligation or indebtedness
hereunder. Lender reserves the right to sell, assign, transfer,
negotiate, or grant participations in all or any part of, or any interest in,
Xxxxxx’s rights and benefits under each of the documents executed herewith or
hereafter. In connection therewith, Lender may disclose all documents
and information which Lender now has or may hereafter acquire relating to any
credit extended by Lender to Borrower, or about Borrower or its business, any
guarantor or the business of any guarantor, or any Collateral required
hereunder. Any waiver of any rights under this Note, the Loan Agreement, or under any other
agreement, instrument, or paper signed by Xxxxxxxx is neither valid nor
effective unless made in writing and signed by Xxxxxx. No delay or
omission on the part of the Lender in exercising any right shall operate as a
waiver thereof or of any other right.
8. Xxxxxxxx
promises to pay all legal and other costs and expenses of collection of this
Note and to pay all reasonable attorneys' fees incurred in such collection or in
any suit or action to collect this Note or any appeal thereof. This
Note shall be governed by, construed under, and enforced in accordance with the
laws of the State of California.
9. Any
collateral pledged to secure any obligation of Borrower shall also secure any
other obligation of Borrower except that any real property pledged to secure any
obligation of Borrower shall only secure any other obligation of Borrower if
Xxxxxx specifically so agrees in writing.
10. An Event
of Default under this Note or the Loan
Agreement shall be an Event of Default under each of such loan documents,
and vice versa.
11. In the
event any one or more of the provisions contained in this Note is held to be
invalid, illegal or unenforceable in any respect, then such provision shall be
ineffective only to the extent of such prohibition or invalidity, and the
validity, legality, and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
12. This Note
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if all signatures were upon the same
instrument. Delivery of an executed counterpart of the signature page
to this Note by telefacsimile shall be effective as delivery of a manually
executed counterpart of this Note, and any party delivering such an executed
counterpart of the signature page to this Note by telefacsimile to any other
party shall thereafter also promptly deliver a manually executed counterpart of
this Note to such other party, provided that the failure to deliver such
manually executed counterpart shall not affect the validity, enforceability, or
binding effect of this Note.
13. This is
an integrated Note and supersedes all prior agreements or negotiations regarding
the subject matter hereof. This Note may only be amended in
writing. This Note amends, supercedes, and replaces that certain
Secured Promissory Note dated ----------N/A----------.
This Note
is subject to the terms and conditions set forth in Addendum A attached hereto
and made a part hereof by this reference.
IN
WITNESS HEREOF, this Secured Promissory Note has been executed and delivered on
the date first set forth above.
ALPHA INNOTECH CORPORATION
By: Xxx
Xxxxxxxxx
Title: Chief
Executive Officer
CAspnPO (rev. 11.08.2007m)
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Pursuant
to this Addendum A to Secured
Promissory Note (this “Addendum”) executed by ALPHA INNOTECH CORPORATION
(“Borrower”) and BFI BUSINESS
FINANCE (“Lender”), the foregoing Secured Promissory Note (the “Note”) is
hereby amended and/or supplemented by the following terms and conditions, which
are incorporated by this reference in the Note as the following additional
paragraphs to the Note:
14. Xxxxxxxx
has requested, and Xxxxxx has agreed, subject to certain conditions, to provide,
on a temporary basis under this Note certain financial accommodations based on
Borrower’s purchase orders as follows:
Commencing
on or about February 29,
2008, Xxxxxx will provide Borrower with financial accommodations based on
certain of Xxxxxxxx’s purchase orders issued by Xxxxxxxx’s clients to Borrower
and expected to become accounts receivable as described in 14(c) below (each a
“Purchase Order” and collectively, “the Purchase Orders”) acceptable to Lender
in Lender’s sole discretion in order to permit Borrower to fulfill its Purchase
Orders.
Lender
will at its discretion lend to Borrower against the Purchase Orders, a copy of
which shall be provided to Lender Twenty-Four (24) hours in advance of each
request for funds, an amount not to exceed Two Hundred Fifty Thousand and
00/100 Dollars
($250,000.00) (the “Purchase Order Line of
Credit”). Amounts
repaid or prepaid with respect to this Note may not be
reborrowed.
Borrower
will provide Lender with copies of (i) shipping documents evidencing the
shipping of the goods that fulfill any of the Purchase Order; (ii) each client’s
signed acknowledgment that it has received the goods that fulfill any of the
Purchase Order; and (iii) each account receivable from any client that is
generated as a part of the client’s receipt of the goods fulfilling any of the
Purchase Orders.
On the
earliest of (i) such time as any Purchase Order has been converted to a Prime
Account; (ii) within sixty (60) days from the date of the
initial advance against the Purchase Order; or (iii) the Purchase Order Line of
Credit Maturity Date as defined below, the amount of the Purchase Order Line of
Credit attributable to such Purchase Order will be transferred to the accounts
receivable line of credit under the Loan
Agreement and any additional amounts available to be advanced against such
account receivable will be credited to the accounts receivable line of credit
under the Loan Agreement.
The
Purchase Order Line of Credit will be due, owing and payable in full on March 31, 2008 (the “Purchase Order Line of Credit Maturity
Date”). Commencing on the Purchase Order Line of Credit Maturity Date
and continuing thereafter on the first (1st) day of
each month as long as the Purchase Order Line of Credit remains outstanding, a
reserve will be established under the Loan Agreement in the remaining amount of
the Purchase Order Line of Credit to the extent that it has not been converted
to a Prime Account (the “Reserve”). The Reserve will reduce the
amount of the accounts receivable line of credit otherwise available under the
Loan Agreement
Borrower
shall pay a fee of One and
one-half Percent
(1.50%) of the amount of each and
every advance hereunder as a condition to the granting of the Purchase Order
Line of Credit.
CAspnPO (rev. 11.08.2007m)
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Initial Here c
