EXHIBIT 10.2
LOAN AGREEMENT
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
(Hereinafter referred to as the "Bank")
Bio-imaging Technologies, Inc.
000 Xxxxxxx-Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
(Individually and collectively "Borrower")
This Loan Agreement ("Agreement") is entered into 09 May 2003 by and between
Bank and Borrower.
This Agreement amends and restates in its entirety that certain Loan Agreement
dated April 30, 2002 and applies to the loan or loans (individually and
collectively, the "Loan") evidenced by one or more promissory notes dated 09 May
2003 or other notes subject hereto, as modified from time to time (whether one
or more, the "Note") the standby letters of credit issued hereunder (each, a
"Letter of Credit" and collectively, the "Letters of Credit") and all Loan
Documents. The terms "Loan Documents" and "Obligations," as used in this
Agreement. are defined in the Note.
Relying upon the covenants, agreements, representations and warranties contained
in this Agreement, Bank is willing to extend credit to Borrower upon the terms
and subject to the conditions set forth herein, and Bank and Borrower agree as
follows:
LETTERS OF CREDIT. Upon the request of Borrower, Bank shall issue standby
Letters of Credit, provided, the aggregate amount available to be drawn under
all standby Letters of Credit plus the aggregate amount of unreimbursed drawings
under all standby Letters of Credit at anyone time does not exceed $500,000.00,
and further provided, no standby Letter of Credit shall expire more than 365
days after the date it is issued. Notwithstanding anything to the contrary
contained herein, the aggregate outstanding principal balance of Advances (as
defined in the line of credit Promissory Note in the amount of $2,000,000.00,
dated 09 May 2003) plus the aggregate amount available to be drawn under all
Letters of Credit plus the aggregate amount of unreimbursed drawings under all
Letters of Credit at anyone time shall not exceed $2,000,000.00. The Letters of
Credit are to be used by Borrower solely to finance working capital. Bank's
obligation to issue Letters of Credit shall terminate if Borrower is in default
(however denominated) under the Note or the other Loan Documents, or in any
case, if not sooner terminated, on June 30, 2004.
LETTER OF CREDIT FEES. Borrower shall pay to Bank, at such times as Bank shall
require, Bank's standard fees in connection with Letters of Credit, as in effect
from time to time, and with respect to standby Letters of Credit, an additional
fee equal to 1.50% per annum on the face amount of each standby Letter of
Credit, payable annually, in advance, for so long as such Letter of Credit is
outstanding.
REPRESENTATIONS. Borrower represents that from the date of this Agreement and
until final payment in full of .the Obligations: Accurate Information. All
information now and hereafter furnished to Bank is and will be true, correct and
complete. Any such information relating to Borrower's financial condition will
accurately reflect Borrower's financial condition as of the date(s) thereof,
(including all contingent liabilities of every type), and Borrower further
represents that its financial condition has not changed materially or adversely
since the date(s) of such documents. Authorization; Non-Contravention. The
execution, delivery and performance by Borrower and any guarantor, as
applicable, of this Agreement and other Loan Documents to which it is a party
are within its power, have been duly authorized as may be required and, if
necessary, by making appropriate filings with any governmental agency or unit
and are the legal, binding, valid and enforceable obligations of Borrower and
any guarantors; and do not (i) contravene, or
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constitute (with or without the giving of notice or lapse of time or both) a
violation of any provision of applicable law, a violation of the organizational
documents of Borrower or any guarantor, or a default under any agreement,
judgment, injunction, order, decree or other instrument binding upon or
affecting Borrower or any guarantor, (ii) result in the creation or imposition
of any lien (other than the lien(s) created by the Loan Documents) on any of
Borrower's or any guarantor's assets, or (iii) give cause for the acceleration
of any obligations of Borrower or any guarantor to any other creditor. Asset
Ownership. Borrower has good and marketable title to all of the properties and
assets reflected on the balance sheets and financial statements supplied Bank by
Borrower, and all such properties and assets are free and clear of mortgages,
security deeds, pledges, liens, charges, and all other encumbrances, except as
otherwise disclosed to Bank by Borrower in writing and approved by Bank
("Permitted Liens"). To Borrower's knowledge, no default has occurred under any
Permitted Liens and no claims or interests adverse to Borrower's present rights
in its properties and assets have arisen. Discharge of Liens and Taxes. Borrower
has duly filed, paid and/or discharged all taxes or other claims that may become
a lien on any of its property or assets, except to the extent that such items
are being appropriately contested in good faith and an adequate reserve for the
payment thereof is being maintained. Sufficiency of Capital. Borrower is not,
and after consummation of this Agreement and after giving effect to all
indebtedness incurred and liens created by Borrower in connection with the Note
and any other Loan Documents, will not be, insolvent within the meaning of 11
U.S.C. Section 101 (32). Compliance with Laws. Borrower is in compliance in all
respects with all federal, state and local laws, rules and regulations
applicable to its properties, operations, business, and finances, including,
without limitation, any federal or state laws relating to liquor (including 18
U.S.C. Section 3617, et seq.) or narcotics (including 21 U.S.C. Section 801, et
seq.) and/or any commercial crimes; all applicable federal, state and local laws
and regulations intended to protect the environment; and the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), if applicable. Organization
and Authority. Each corporation, partnership or limited liability company
Borrower and/or guarantor, as applicable, is duly created, validly existing and
in good standing under the laws of the state of its organization, and has all
powers, governmental licenses, authorizations, consents and approvals required
to operate its business as now conducted. Each corporation, partnership or
limited liability company Borrower and/or guarantor, as applicable, is duly
qualified, licensed and in good standing in each jurisdiction where
qualification or licensing is required by the nature of its business or the
character and location of its property, business or customers, and in which the
failure to so qualify or be licensed, as the case may be, in the aggregate,
could have a material adverse effect on the business, financial position,
results of operations, properties or prospects of Borrower or any such
guarantor. No Litigation. There are no pending or threatened suits, claims or
demands against Borrower or any guarantor that have not been disclosed to Bank
by Borrower in writing, and approved by Bank.
AFFIRMATIVE COVENANTS. Borrower agrees that from the date hereof and until final
payment in full of the Obligations, unless Bank shall otherwise consent in
writing, Borrower will: Access to Books and Records. Allow Bank, or its agents,
during normal business hours, access to the books, records and such other
documents of Borrower as Bank shall reasonably require, and allow Bank, at
Borrower's expense, to inspect, audit and examine the same and to make extracts
therefrom and to make copies thereof. Business Continuity. Conduct its business
in substantially the same manner and locations as such business is now and has
previously been conducted. Certificate of Full Compliance From Accountant.
Deliver to Bank, with the financial statements required herein, a certification
by Borrower's independent certified public accountant that Borrower is in full
compliance with the Loan Documents. Compliance with Other Agreements. Comply
with all terms and conditions contained in this Agreement, and any other Loan
Documents, and swap agreements, if applicable, as defined in the 11 U.S.C.
Section 101. Estoppel Certificate. Furnish, within 15 days after request by
Bank, a written statement duly acknowledged of the amount due under the Loan and
identifying each outstanding Letter of Credit, if any, and whether offsets or
defenses exist against the Obligations. Insurance. Maintain adequate insurance
coverage with respect to its properties and business against loss or damage of
the kinds and in the amounts customarily insured against by companies of
established reputation engaged in the same or similar businesses including,
without limitation, commercial general liability insurance, workers compensation
insurance, and business interruption insurance; all acquired in such amounts and
from such companies as Bank may reasonably require. Maintain Properties.
Maintain, preserve and keep its property in good repair, working order and
condition, making all needed replacements, additions and
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improvements thereto, to the extent allowed by this Agreement. Non-Default
Certificate From Borrower. Deliver to Bank, with the Financial Statements
required below, a certificate signed by Borrower, in the form attached hereto as
Exhibit A, if Borrower is an individual, or by a principal financial officer of
Borrower warranting that no "Default" as specified in the Loan Documents nor any
event which, upon the giving of notice or lapse of time or both, would
constitute such a Default, has occurred and demonstrating Borrower's compliance
with the financial covenants contained herein. Notice of Default and Other
Notices. (a) Notice of Default. Furnish to Bank immediately upon becoming aware
of the existence of any condition or event which constitutes a Default (as
defined in the Loan Documents) or any event which, upon the giving of notice or
lapse of time or both, may become a Default, written notice specifying the
nature and period of existence thereof and the action which Borrower is taking
or proposes to take with respect thereto. (b) Other Notices. Promptly notify
Bank in writing of (i) any material adverse change in its financial condition or
its business; (ii) any default under any material agreement, contract or other
instrument to which it is a party or by which any of its properties are bound,
or any acceleration of the maturity of any indebtedness owing by Borrower; (iii)
any material adverse claim against or affecting Borrower or any part of its
properties; (iv) the commencement of, and any material determination in, any
litigation with any third party or any proceeding before any governmental agency
or unit affecting Borrower; and (v) at least 30 days prior thereto, any change
in Borrower's name or address as shown above, and/or any change in Borrower's
structure. Other Financial Information. Deliver promptly such other information
regarding the operation, business affairs, and financial condition of Borrower
which Bank may reasonably request. Payment of Debts. Pay and discharge when due,
and before subject to penalty or further charge, and otherwise satisfy before
maturity or delinquency, all obligations, debts, taxes, and liabilities of
whatever nature or amount, except those which Borrower in good faith disputes.
Reports and Proxies. Deliver to Bank, promptly, a copy of all financial
statements, reports, notices, and proxy statements, sent by Borrower to
stockholders, and all regular or periodic reports required to be filed by
Borrower with any governmental agency or authority.
NEGATIVE COVENANTS. Borrower agrees that from the date of this Agreement and
until final payment in full of the Obligations, unless Bank shall otherwise
consent in writing, Borrower will not: Change of Control. Make or suffer a
change of ownership that effectively changes control of Borrower from current
ownership. Encumbrances. Create, assume, or permit to exist any mortgage,
security deed, deed of trust, pledge, lien, charge or other encumbrance on any
of its assets, whether now owned or hereafter acquired, other than: (i) security
interests required by the Loan Documents; (ii) liens for taxes contested in good
faith; (iii) liens accruing by law for employee benefits; or (iv) Permitted
Liens. Guarantees. Guarantee or otherwise become responsible for obligations of
any other person or persons, other than the endorsement of checks and drafts for
collection in the ordinary course of business. Default on Other Contracts or
Obligations. Default on any material contract with or obligation when due to a
third party or default in the performance of any obligation to a third party
incurred for money borrowed. Government Intervention. Permit the assertion or
making of any seizure, vesting or intervention by or under authority of any
governmental entity, as a result of which the management of Borrower or any
guarantor is displaced of its authority in the conduct of its respective
business or such business is curtailed or materially impaired. Judgment Entered.
Permit the entry of any monetary judgment or the assessment against, the filing
of any tax lien against, or the issuance of any writ of garnishment or
attachment against any property of or debts due. Retire or Repurchase Capital
Stock. Retire or otherwise acquire any of its capital stock.
ANNUAL FINANCIAL STATEMENTS. Borrower shall deliver to Bank, within 120 days
after the close of each fiscal year, audited financial statements reflecting its
operations during such fiscal year, including, without limitation, a balance
sheet, profit and loss statement and statement of cash flows, with supporting
schedules and in reasonable detail, prepared in conformity with generally
accepted accounting principles, applied on a basis consistent with that of the
preceding year. If audited statements are required, all such statements shall be
examined by an independent certified public accountant acceptable to Bank. The
opinion of such independent certified public accountant shall not be acceptable
to Bank if qualified due to any limitations in scope imposed by Borrower or any
other person or entity. Any other qualification of the opinion by the accountant
shall render the acceptability of the financial statements subject to Bank's
approval.
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PERIODIC FINANCIAL STATEMENTS. Borrower shall deliver to Bank, within 45 days
after the close of each fiscal year and, if requested by Bank, within 45 days
after the end of each fiscal quarter, unaudited management-prepared quarterly
financial statements including, without limitation, a balance sheet, profit and
loss statement and statement of cash flows, with supporting schedules; all in
reasonable detail and prepared in conformity with g:1nerally accepted accounting
principles, applied on a basis consistent with that of the preceding year. Such
statements shall be certified as to their correctness by a principal financial
officer of Borrower and in each case, if audited statements are required,
subject to audit and year-end adjustments.
FINANCIAL COVENANTS. Borrower agrees to the following provisions from the date
hereof until final payment in full of the Obligations, unless Bank shall
otherwise consent in writing, using the financial information for Borrower, its
subsidiaries, affiliates and its holding or parent company, as applicable:
Deposit Relationship. Borrower shall maintain its primary depository account and
cash management services with Bank, provided that any cash investments greater
that that needed to meet the Liquidity Ratio may be maintained at other banks or
financial institutions. Debt Service Coverage Ratio. Borrower shall, at all
times, maintain a Debt Service Coverage Ratio of not less than 1.25 to 1.00,
measured annually. "Debt Service Coverage Ratio" shall mean the sum of earnings
before interest, taxes, depreciation and amortization (EBITDA) divided by the
sum of current maturities of long term debt, subordinated debt, capitalized
leases, interest expense and C-Corp. income taxes. Limitation on Debt. Borrower
shall not, directly or indirectly, create, incur, assume or become liable for
any additional indebtedness, whether contingent or direct, except for trade debt
incurred in the ordinary course of business, without prior consent of Bank.
Liquidity Ratio. Borrower shall, at all times, maintain a Liquidity Ratio of not
less than 2.00 to 1.00. "Liquidity Ratio" shall mean cash plus total accounts
receivable divided by the sum of the total amount outstanding on the line of
credit plus issued standby letters of credit. Dividends. Borrower shall not,
during any fiscal year, declare or pay dividends or make other distributions to
its shareholders.
CONDITIONS PRECEDENT. The obligations of Bank to make the loan and any advances
and to issue any Letters of Credit pursuant to this Agreement are subject to the
following conditions precedent: Letter of Credit Documents. Receipt by Bank of
all documents required by Bank in connection with Letters of Credit, including
Wthout limitation, applications therefor, all in form satisfactory to Bank.
Additional Documents. Receipt by Bank of such additional supporting documents as
Bank or its counsel may reasonably request.
IN WITNESS WHEREOF, Borrower and Bank, on the day and year first written above,
have caused this Agreement to be executed under seal.
Bio-Imaging Technologies, Inc.
By: /s/ Xxx Xxxxxxx
----------------
Xxx Xxxxxxx, CFO
(SEAL)
(SEAL)
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxxxx Xxxxxx
--------------------------------
Xxxxxxxxx Xxxxxx, Vice President
(SEAL)
Tracking #: 54128PL Y
CAT -Deal # 187835 Facility 10 146004
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