Exhibit 10.06
SIEMENS Siemens Credit Corporation
LOAN AND SECURITY AGREEMENT
AGREEMENT #: 000-000000-000
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LENDER: SIEMENS CREDIT CORPORATION, 0000 XXXXXX XX XXX XXXXXXXX, XXX XXXX,
XX 00000
Administrative Offices:5300 Broken Xxxxx Xxxx. X.X., Xxxx Xxxxx, XX
00000-0000
BORROWER: SMT Health Services Inc., 00000 Xxxxx Xxxxxxx, Xxxxxxx, XX 00000
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EQUIPMENT
DESCRIPTION: Magnetom Mobile Impact as described in Quote #000172108 V02
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SUPPLIER: Siemens Medical Systems, Inc., 000 Xxxx Xxxxxx Xx., Xxxxxx,
XX 00000
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ORIGINAL EQUIPMENT
LOCATION: Ohio Valley Medical Center, 0000 Xxxx Xxxxxx, Xxxxxxxx, XX 00000 &
Wheeling Hospital, Xxxxxxx Xxxx, Xxxxxxxx, XX 00000
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LOAN AMOUNT: One Million Eight Hundred Twenty-One Thousand Two Hundred Sixty
One Dollars (1,821,261.00)
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TERMS AND CONDITIONS OF AGREEMENT
1. THE LOAN: Lender hereby agrees, on the terms stated in this Loan and
Security Agreement (herein "Agreement"), to lend to Borrower on an agreed upon
date (herein "Loan Date"), the loan amount as set forth above in immediately
available funds (the "Loan"). The proceeds of the Loan shall be applied by
Borrower on the Loan Date to the purchase price of the property described above
(herein "Equipment") in accordance with the "Pay Proceeds Authorization"
previously given by Borrower to Lender (in a form supplied by Lender).
Borrower's obligation to pay the principal of and interest on the Loan shall be
evidenced by its promissory note in the form supplied by Lender (the "Note"),
dated the date of the Loan, payable to the order of Lender. Interest on the
loan shall accrue on the outstanding principal amounts thereof in accordance
with the terms of the Note. Unless accelerated in accordance
(CONTINUED ON FOLLOWING PAGES)
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IN WITNESS WHEREOF, the parties hereto have duly executed the Agreement as of
the dates set forth below. The Agreement shall become effective at the time of
Lender's acceptance (by execution hereof) at its New York address set forth
above, by an authorized representative of Lender. For all purposes hereof, the
date of the Agreement shall be the date of Lender's acceptance as set forth
below. BORROWER ACKNOWLEDGES THAT NEITHER LENDER NOR THE SUPPLIER IS AN AGENT
OF THE OTHER AND NEITHER HAS AUTHORITY TO BIND THE OTHER.
BY EXECUTION HEREOF, THE SIGNER CERTIFIES
THAT (S)HE HAS READ THE ENTIRE AGREEMENT
AND NOTE, THAT LENDER OR ITS
REPRESENTATIVES HAVE MADE NO AGREEMENT
OR REPRESENTATIONS EXCEPT AS SET FORTH
HEREIN OR IN THE NOTE, AND THAT (S)HE IS DULY
AUTHORIZED TO EXECUTE THE AGREEMENT AND
THE NOTE ON BEHALF OF BORROWER.
ACCEPTED BY:
LENDER: SIEMENS CREDIT CORPORATION BORROWER: SMT Health Services Inc.
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BY: BY:
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NAME: NAME:
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TITLE: TITLE:
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DATE: DATE:
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with the provisions of the Agreement, the principal of and interest on the Loan
shall be paid in accordance with the terms of the Note on the payment dates as
set forth therein. Borrower agrees to pay on demand, as a late charge, 1.3% per
month limited by the maximum rate permitted by law on all overdue payments
hereunder and under the Note, whether such payments are due prior to or after a
Default (as hereinafter defined). All amounts payable to Lender hereunder and
under the Note shall be made not later than the date specified for payment, in
lawful money of the United States of America and in immediately available funds,
free and clear of and without any withholding, deduction, setoff or
counterclaim. If any payment hereunder or under the Note is due on a day when
banks are required to close in New York, New York, such payment shall be due on
the next succeeding business day, except as may otherwise by provided herein or
in the Note, all payments to Lender hereunder shall be paid to Lender at its
address above or any other address designated by Lender in writing. All amounts
paid shall be applied first, to the payment of all expenses and charges,
including attorneys' fees, incurred by Lender in the protection of its rights or
the pursuance of its remedies and to provide adequate indemnity to Lender
against all taxes and liens which by all have, or may have, priority over the
rights of Lender to any receipts or proceeds with respect to the Equipment;
second, to the payment of all other costs, expenses and indemnities payable
hereunder to the extent Lender is aware of the same, third, to the payment of
all interest accrued and payable with respect to the Loan; and fourth, to the
payment of principal on the Loan. The Loan or any part thereof, may not be
prepaid without prior consent of Lender, which consent will not be unreasonably
withheld.
2. CONDITIONS PRECEDENT: The obligation of Lender to make the Loan is subject
to the fulfillment of the following conditions: (a) on the Loan Date, no Default
or event which with the giving of notice or lapse of time or both would
constitute a default has occurred and is continuing or would result from the
performance of the Agreement; (b) no material adverse change shall have occurred
prior to funding, in the financial condition or operations of the Borrower, (c)
the Equipment shall be in good working condition; and (d) Lender shall have
received from Borrower all documents requested by Lender.
3. SECURITY INTEREST: To secure all payments hereunder and under the Note and
all other obligations of Borrower to Lender hereunder and under the Note (all
hereinafter call "Obligations"). Borrower hereby grants to Lender a security
interest in the Equipment, together with all accessions, attachments,
replacements, substitutions, modification and additions thereto, now or
hereafter acquired, and all proceeds thereof (including insurance proceeds).
Borrower agrees to execute and authorizes Lender to file with such authorities
and at such locations as it may deem appropriate, any further Uniform Commercial
Code financing statements relating to the equipment and/or the Agreement and
Borrower agrees to reimburse Lender upon demand for all costs incurred relative
thereto. In addition, Borrower hereby irrevocably appoints Lender its agent and
attorney-in-fact to execute in the name of Borrower and file any Uniform
Commercial Code financing statements or security agreements with respect to the
Equipment in any place Lender deems necessary. Borrower also agrees that a
photocopy or original of the Agreement (including any addenda, attachments and
amendments hereto) may be filed by Lender as a Uniform Commercial Code financing
statement.
4. REPRESENTATIONS AND WARRANTIES: Borrower represents and warrants to Lender
as of the Loan Date that: (a) Borrower is an entity duly organized and validly
existing in good standing under the laws of the state of its organization; (b)
Borrower has full power to own its properties to carry on its business as now
being conducted and has full power to execute, deliver and perform all of its
obligations under the Agreement and the Note; (c) the making and performance by
Borrower of the Agreement and the Note have been duly authorized by all
necessary action of Borrower and do not and will not violate any provision of
law, statute, rule of regulation, or any judgment, franchise, permit, order,
decree, ruling writ or injunction of any court or administrative body, or of
Borrower's organizational or charger documents, or the terms of any of its
securities or result in the breach of, or constitute a default under, or require
any consent under, any indenture, bank loan, credit agreement or other agreement
or instrument to which Borrower is a party or by which Borrower or any of its
property may be bound or affected; (d) except for any Uniform Commercial Code
financing statement filings, fixture filings or other recordings required
hereunder with respect to the Equipment and the creation of the security
interests contemplated hereby, no filings, recordations, notifications,
registrations, notarizations, authentications or other formalities or property,
stamp or similar taxes or duties and no approvals, licenses, orders
authorizations, consents or undertakings of any governmental bodies or
regulatory, supervisory authorities are necessary or appropriate in connection
with the execution, delivery and performance by Borrower of the Agreement or the
Note or for the payment to Lender of all sums hereunder or under the Note or
for the legality, validity, binding effect or enforceability hereof or thereof;
(e) the Agreement and the Note have been duly executed and delivered by Borrower
and are legal, valid and binding enforceability hereof or thereof; (e) the
Agreement and the Note have been duly executed and delivered by Borrower and are
legal, valid and binding obligations of Borrower, enforceable in accordance with
their respective terms; (f) there are no agreements or understandings to which
Borrower and Lender are parties respecting the Equipment, verbal or written,
other than those expressed herein and Borrower has not created any licensor
encumbrances against the Equipment except the lien created hereby; (g) Borrower
has good title to the Equipment free and clear of any liens and encumbrances
except those granted to Lender hereunder, and the security interest granted to
Lender herein will at all times constitute a valid perfected and enforceable
first priority security interest in favor of Lender, subject to no other
security interest, mortgage, lien or encumbrance except as may otherwise be
permitted under the Agreement; (h) Borrower has delivered to Lender all
requested balance sheets and the related statements of income and retained
earnings of Borrower and its subsidiaries (if applicable) for its most recent
fiscal year end and for the most recent fiscal quarter then ended and such
balance sheets and statements fairly present the financial condition of Borrower
(and its subsidiaries) as of such dates and the results of the operations of
Borrower and its subsidiaries for the period ended on such dates, all in
accordance with generally accepted accounting principles consistently applied.
Since the end of the latest fiscal quarter there has been no material adverse
change in such condition or operations (i) Borrower has filed all applicable tax
returns required to be filed by it, and has paid or made provisions for the
payment of all taxes which have become due pursuant to said returns or pursuant
to any assessment received by Borrower except such taxes, if any, as are being
contested in good faith and as to which adequate reservices have been provided
in accordance with generally accepted accounting principles and such returns
properly reflect the United States, state and local income and tax liability of
Borrower for the period covered thereby.
5. COVENANTS: Borrower hereby covenants and agrees that until satisfaction of
all its Obligations, it shall: (a) preserve and maintain its existence and all
of its rights, privileges and franchises, and continue the conduct of its
present
business in an orderly, efficient and regular manner; (b) keep the Equipment
free and clear of all liens, charges, encumbrances, taxes and assessments, and
keep the Equipment at the original Equipment Location and not change the
location of any item of the Equipment without the prior written consent of
Lender which consent shall not be unreasonably withheld; (c) retain possession
of the Equipment during the term of the Agreement and not sell, exchange,
assign, loan, deliver, lease, mortgage or otherwise dispose of such Equipment;
not alter the Equipment; and not allow the Equipment to be affixed to reality in
such manner as to cause the Equipment not become a fixture; (d) operate the
Equipment by qualified and duly authorized personnel only, in accordance with
all applicable laws and regulations, and for business purposes only; and keep
the Equipment in good repair and condition, properly maintain the Equipment or
cause it to be properly maintained by a fully qualified service company, and
immediately notify Lender in writing of the entity maintaining the Equipment and
any change of such entity. Lender shall have the right upon advance notice to
inspect the Equipment and all maintenance records thereto, if any, at any
reasonable time during normal business hours and to require Borrower, at
Borrower's expense, to affix plates or markings on the Equipment indicating
lender's interest; (e) pay when due all license fees, charges, assessments,
duties, privilege, sales use, excise, ad valorem, intangible, stamp, property,
and other similar taxes now or hereafter imposed upon or relating to the
ownership, purchase event that Lender shall pay any such taxes to reimburse
Lender upon demand therefor; (f) promptly and duly execute and deliver to Lender
such event that Lender shall pay any such taxes to reimburse Lender upon demand
therefor; (f) promptly and duly execute and deliver to Lender such further
documents, instruments and assurances and take such further action as Lender may
from time to time reasonably request in order to carry out the intent and
purpose of the Agreement and to establish and protect the rights and remedies
created or intended to be created in favor of Lender hereunder, including
without limitation, the execution and delivery of any Uniform Commercial Code
financing statements, landlord and mortgagee waivers or those documents
reasonably requested by Lender; (g) furnish Lender promptly with any financial
information or statements requested by Lender; (h) timely file any and all tax
returns and tax filings required under any governmental statue and pay and
discharge, when due, all material obligations to third parties, except those
obligations being contested in good faith, and for which Borrower shall have
maintained in accordance with generally accepted accounting principles, adequate
reserves for the payment of the same; (i) notify Lender immediately upon receipt
of notice of any lien, attachment or judicial proceeding affecting the Equipment
in whole or in part, and provide written notice to Lender thirty (30) days prior
to any change in the name or address of Borrower, its identity or corporate
structure, social security or taxpayer identification number as applicable, or
discontinuance of any of its places of business, and immediately upon any
Default or event which, with the lapse of time or giving of notice, would
constitute a Default.
6. DISCLAIMER OF WARRANTIES; LIMITATION OF REMEDIES; LIMITATION OF LIABILITY:
THIS AGREEMENT IS SOLELY A FINANCING AGREEMENT. BORROWER HAS SELECTED BOTH THE
EQUIPMENT AND THE SUPPLIER OF THE EQUIPMENT AND ACKNOWLEDGES THAT LENDER IS NOT
THE SUPPLIER OF THE EQUIPMENT. LENDER HAS NOT MADE, DOES NOT MAKE, AND HEREBY
DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, RELATING TO THE EQUIPMENT,
INCLUDING ALL EXPRESS OR IMPLIED WARRANTIES OR MERCHANTABILITY AND WARRANTIES OR
FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL LENDER BE LIABLE (INCLUDING
WITHOUT LITIGATION, UNDER ANY THEORY IN TORTS) FOR ANY LOSS OF USE, REVENUE,
ANTICIPATED PROFITS OR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE USE, PERFORMANCE OR
MAINTENANCE OF THE EQUIPMENT. Borrower agrees to settle all claims relating to
the Equipment directly with the manufacturer, Supplier or service company of the
Equipment, as applicable, and not with Lender.
7. RISK OF LOSS; INSURANCE: (a) Borrower agrees that it shall bear all risk of
loss, damage to or destruction of the Equipment. Borrower shall give Lender
prompt notice of any damage to or loss of the Equipment or of any occurrence
arising from the possession, use or operation of the Equipment resulting in
death or bodily injury, or damage to property. In the event of damage to any
item(s) of Equipment, borrower shall immediately place such item(s) in good
repair (with no abatement of payments hereunder or under the Note), with the
proceeds of any insurance recovery applied to the cost of such repair. If,
however, any item(s) of Equipment shall become lost, stolen, destroyed, worn
out, damaged beyond repair, condemned, confiscated, seized or requisitioned
(herein "Event of Loss"), Borrower shall, at the option of Lender, either
replace the same with like equipment in good repair (with no abatement of
payments hereunder or under the Note), or pay to Lender on the next scheduled
payment date immediately following such Event of Loss, the remaining unpaid
principal balance of the Note, all accrued but unpaid interest thereon, plus all
other amounts due from Borrower hereunder, whereupon the Agreement shall
terminate. (b) Until satisfaction by Borrower of its Obligations, Borrower, at
its expense, shall maintain comprehensive general liability insurance, and "fire
and allied perils" and "all risks" property insurance covering the Equipment (as
primary insurance for Borrower and Lender), both in such amounts as Lender shall
require, except that such property insurance shall be in an amount at least
equal to the remaining unpaid principal balance of the Note and such insurance
shall be placed with carriers acceptable to Lender. The liability insurance
policy shall name Lender (and any assignee of Lender) as additional insured(s)
and the property insurance policy shall name Lender (and any assignee of Lender)
as loss payee(s) tot he extent its interest(s) may appear, and both policies
shall provide that they may not be cancelled or altered without at least thirty
(30) days prior written notice to Lender (and any assignee of Lender). Borrower
irrevocably appoints Lender its agent and attorney-in-fact for the purpose of
adjusting and settling any property insurance hereunder and endorsing in
Borrower's name any instruments or payments received in respect thereof.
Borrower shall furnish to Lender, upon request, a certificate of insurance that
such coverage is in effect, however, Lender shall be under no duty either to
ascertain the existence of or to examine such insurance policies or to advise
Borrower in the event that such insurance coverage does not comply with the
requirements hereof.
8. DEFAULT AND REMEDIES: (a) Any of the following shall constitute a default
by Borrower hereunder (herein "Default"): (i) failure by Borrower to pay any
amounts hereunder or under the Note when due and such remains unremedied for a
period of ten (10) days from the due date; or (ii) failure of Borrower to comply
with any provisions or perform any of its obligations arising under the
Agreement or under any other documents or agreements related hereto and such
remains unremedied by Borrower for a period of twenty (20) days; or (iii) any
representations or warranties made or given by Borrower in connection with the
Agreement or any other document or agreement related hereto were false or
misleading in a material way when made; or (iv) subjection of the Equipment to
levy or execution or other judicial process which is not or cannot be
removed within thirty (30) days from the subjection thereof; or the imposition
of any unauthorized lien on or transfer of the Equipment by or through Borrower;
or (v) commencement of any insolvency, bankruptcy or similar proceedings by or
against Borrower or any guarantor of any of Borrower's Obligations (herein
"Guarantor"), including any assignment by Borrower or any Guarantor for the
benefit of creditors, and in the case of any such involuntary proceedings, such
is not dismissed within thirty (30) days of institution; or the inability of
Borrower to generally pay its debts as they become due; or (vi) any act of
Borrower which imperils the value of the Equipment or the prospect of full
performance of the Obligations, including but not limited to the liquidation or
dissolution of Borrower or the commencement of any acts relative thereto, or
without the prior written consent of Lender, any sale or other disposition of
all or substantially all of the assets of Borrower, or any merger or
consolidation of Borrower unless Borrower is the surviving entity, or the
cessation of business by Borrower; or (vii) a default by Borrower under any
other agreement or note with Lender or any assignee of the Agreement and/or
Note; or (viii) the death or dissolution of Borrower or of any Guarantor, the
withdrawal of any partner if Borrower is a partnership, or the inability of
Borrower or of any Guarantor hereunder to perform any of the obligations
contained herein or in any applicable guaranty.
(b) Upon any Default, Lender may exercise any one or more of the following
remedies (which remedies shall be cumulative to the extent permitted by law);
(i) terminate the Agreement; (ii) declare the remaining unpaid principal balance
of the Note, plus all accrued but unpaid interest thereon, plus all other
amounts due from Borrower hereunder, immediately due and payable in full without
notice or demand, whereupon such shall become immediately due and payable; (iii)
secure peaceable repossession and removal of the Equipment by Lender or its
agent without judicial process; (iv) demand and Borrower shall at its own risk
and expense immediately return the Equipment to Lender, packed for shipment in
accordance with manufacturer's specifications and eligible for manufacturer's
maintenance, freight prepaid and insured, to such location as Lender shall
designate; (v) sell, lease or otherwise dispose of the Equipment at public or
private sale without advertisement or notice except that required by law, upon
such terms and at such place as Lender may deem advisable and lender may be the
purchaser at any such sale; (vi) demand and Borrower shall pay all expenses in
connection with the Equipment relating to its retaking, refurbishing, selling or
the like; (vii) exercise any other right or remedy which may be available to it
under the Uniform Commercial code or any other applicable law. Any proceeds
received from Borrower or net proceeds received with respect to disposition of
the Equipment, shall be applied by Lender to the Obligations, in the order of
application as Lender shall elect.
9. INDEMNIFICATION: Borrower hereby indemnifies and agrees to hold Lender, its
employees, officers, directors and agents harmless from and against any and all
losses, claims, suits, damages, expenses and liabilities (including negligence,
tort and strict liability), together with reasonable attorneys' fees, caused by,
arising from, or related to, the manufacture, purchase, ownership, maintenance,
modification, delivery, installation, possession, condition, use, acceptance,
rejection, operation, disposition or return of the Equipment.
10. NOTICES; CHANGES: Notices, requests or other communications required
hereunder to be sent to either party shall be in writing and shall be (a) by
United States first class mail, postage prepaid, and addressed to the other
party at the address set forth above (or to such other address as such party
shall have designated by proper notice) or (b) by personal delivery. Borrower
consents to service of process by certified mail at its address above (or to
such other address as Borrower shall be designated by proper notice) in
connection with any legal action brought by Lender. Borrower authorizes Lender
to fill in descriptive material herein (including serial numbers) and to correct
any patient errors hereunder or under the Note.
11. MISCELLANEOUS: THE AGREEMENT AND NOTE CONTAIN THE COMPLETE AGREEMENT OF
THE PARTIES WITH RESPECT TO ITS SUBJECT MATTER AND SUPERSEDE AND REPLACE ANY
PREVIOUSLY MADE PROPOSALS, REPRESENTATIONS, WARRANTIES OR AGREEMENTS. LENDER
MAY ASSIGN OR TRANSFER THE AGREEMENT, THE NOTE AND/OR LENDER'S INTEREST IN THE
EQUIPMENT WITHOUT NOTICE TO BORROWER. Any assignee of Lender shall have all of
the rights but none of the obligations of Lender under the Agreement and Note,
and BORROWER AGREES THAT IT WILL NOT ASSERT AGAINST ANY ASSIGNEE OF LENDER ANY
DEFENSE, COUNTERCLAIM OR OFFSET THAT BORROWER MAY HAVE AGAINST LENDER. BORROWER
SHALL NOT ASSIGN OR IN ANY WAY DISPOSE OF ALL OR ANY PART OF ITS RIGHTS OR
OBLIGATIONS UNDER THE AGREEMENT AND THE NOTE WITHOUT THE PRIOR WRITTEN CONSENT
OF LENDER. The Agreement and the Note shall be binding upon and inure to the
benefit of the parties hereto, their legal representatives, permitted successors
and assigns. THE PARTIES HERETO WAIVE ALL RIGHTS TO A JURY TRIAL IN ANY
LITIGATION ARISING FROM OR RELATED IN ANY WAY TO THE AGREEMENT, NOTE OR THE
TRANSACTION CONTEMPLATED HEREBY. No amendment hereunder shall be effective
unless in writing signed by the parties hereto and no waiver hereunder shall be
effective unless in writing, signed by the party to be charged. No failure to
exercise, no delay in exercising, and no single or partial exercise on the part
of Lender of any right, remedy, or power hereunder, shall operate as a waiver
thereof or preclude Lender from exercising any other right, remedy or power
hereunder. Any provision of the Agreement or the Note which is unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability, without invalidating the remaining
provisions hereof or of the Note. No action regardless of form arising out of
the Agreement or the Note may be brought by Borrower more than two (2) years
after the cause of action has accrued. The representations, warranties,
obligations and indemnities of the Borrower hereunder shall survive the
termination of the Agreement to the extent required for their full observance
and performance. The obligations of each co-maker (if any) of the Agreement or
the Note shall be primary, joint and several. In the event borrower fails to
meet any obligation of it hereunder, Lender may at its option satisfy such
obligation and Borrower shall reimburse Lender on demand therefor. In the event
that legal or other action is required to enforce Lender's rights under the
Agreement or under the Note (including but not limited to the exercise of
remedies hereunder), borrower agrees to reimburse lender on demand for its
reasonable attorneys' fees and its other related costs and expenses.
Notwithstanding any applicable stage laws to the contrary, borrower agrees to
reimburse lender for all reasonable attorneys' fees incurred by it incident to
any action or proceeding involving the borrower brought pursuant to the
bankruptcy code, as amended which are allowable under section 506(b) thereof.
The captions in the Agreement are for convenience only and shall not defined or
limit any of the terms hereof. THE AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
SIEMENS Siemens Credit Corporation
PROMISSORY NOTE
TO LOAN AND SECURITY AGREEMENT
#: 000-000000-000
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PROMISSORY NOTE
U.S. $1,821,261.00
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(Date of Note)
NEW YORK, NEW YORK
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The undersigned, organized and validly existing under the laws of its state of
organization, for value received, hereby unconditionally promises to pay to the
order of Siemens Credit Corporation (the "Payee") at 0000 Xxxxxx xx xxx
Xxxxxxxx, xxx Xxxx, XX 00000 in lawful money of the United States of America and
in immediately available funds, the principal amount of U.S. One Million Eight
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Hundred Twenty-One Thousand Two Hundred Sixty-One Dollars, with interest (based
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on a year of 360 days and 30 day months) at a per annum rate of Nine & Forty-
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Five Hundredths percent (9.45%) on the principal amount hereof remaining from
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time to time unpaid, such principal and interest to be paid in 60 consecutive
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monthly installments of $37,907.00 each, beginning on Date of Note Above and on
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the same day of each consecutive month thereafter until fully paid.
This Note evidences a Loan by the Payee to the undersigned pursuant to the Loan
and Security Agreement indicated above between the undersigned and the Payee
(the "Agreement") as from time to time may be amended, restated, replaced,
supplemented, substituted for or renewed, and the holder of this Note is
entitled to the benefits thereof, including without limitation, the security
interest in the Equipment granted therein. Each term defined in the Agreement
and not otherwise defined herein shall have the same definition when used
herein.
The principal hereof and accrued interest hereon shall become forthwith due and
payable as provided in the Agreement. Payments hereunder not made when due shall
accrue late charges as provided in the Agreement. This Note may not be prepaid
in whole or in part (without the prior consent of the Lender (Payee) which
consent will not be unreasonably withheld).
All payments made pursuant to the terms of this Note shall be made free and
clear of, and without deduction for, withholding, setoff or counterclaim of any
kind.
The undersigned hereby promises to pay all costs and expenses, including but not
limited to reasonable attorneys' fees which may be incurred in connection with
the enforcement and/or collection of this Note.
Neither the failure on the part of the holder of this Note in exercising any
right or remedy nor any single or partial exercise or the exercise of any other
right or remedy shall operate as any waiver. No amendment hereunder shall be
effective unless in writing signed by the undersigned and holder of this Note
and no wavier hereunder shall be effective unless in writing, signed by the
party to be charged. The undersigned hereby waives demand for payment,
presentment, protest and notice of any kind in connection with the delivery,
acceptance, performance, default or enforcement of this Note and hereby consents
to any extensions of time, renewals, releases of any party to this Note, waivers
or modifications that may be granted or consented to by the holder of this Note
in respect of the time of payment or any other matter.
Anything in this Note to the contrary notwithstanding, in the event that any
payment of interest hereunder shall exceed the legal limit, such amount in
excess of such limit shall be deemed a payment of principal hereunder.
The undersigned authorizes the Payee to insert above as the date of the Note,
the date on which the Payee disburses funds pursuant to the Agreement.
THE NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS
THEREOF.
MAKER WAIVES ALL RIGHTS TO A JURY TRIAL IN ANY LITIGATION ARISING FROM OR
RELATED IN ANY WAY TO THIS NOTE OR THE TRANSACTION CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, the undersigned has caused this Note to be executed by its
authorized representative, who certifies that (s)he has all necessary authority
on behalf of the undersigned to execute this Note and bind it to the terms
hereof.
SMT Health Services Inc.
BY:
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NAME:
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TITLE:
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