EXHIBIT 10.15
[LOGO OF IMPERIAL BANK]
STARTER KIT LOAN AND SECURITY AGREEMENT
Borrower: HealthKnowledge Corporation Address: 0000 000/xx/ Xxxxxx XX Xxxxx 000
--------------------------------
Xxxxxxxx, XX 00000
--------------------------------
Date: 9/22/97
-------------
THIS LOAN AND SECURITY AGREEMENT ("Agreement") is made and entered into on the
above date between IMPERIAL BANK ("Bank"), whose address is 000 Xxxxxxx Xxxxxxx,
Xxx Xxxx, Xxxxxxxxxx 00000 and with a loan production office located at 777
000/xx/ Xxxxxx X.X., Xxxxx 0000, Xxxxxxxx, Xxxxxxxxxx 00000, and the party(ies)
named above (jointly and severally, "Borrower"), whose chief executive office is
located at the above address ("Borrower's Address").
1. Loans. Bank will make loans to Borrower (the "Loans") in amounts determined
by Bank in its reasonable business judgment up to the amount (the "Credit
Limit") shown on the Schedule to this Agreement (the "Schedule"), provided no
Event of Default and no event which, with notice or passage of time or both,
would constitute an Event of Default is occurring or has occurred. All Loans and
other monetary Obligations will bear interest at the rate shown on the
Schedule. Interest will be payable monthly, on the date shown on the monthly
billing from Bank. Bank may, in its discretion, charge Borrower's deposit
accounts maintained with Bank for any amounts coming due under this Agreement.
2. Security interest. As security for all present and future indebtedness,
guarantees, liabilities, and other obligations, of Borrower to Bank
(collectively, the "Obligations"), Borrower hereby grants Bank a continuing
security interest in all of Borrower's right title and interest in and to any
property now or hereafter described in an security agreement executed by
Borrower to Bank as well as the following types of property, whether now owned
or hereafter acquired, and wherever located (collectively, the "Collateral"):
All "accounts" "general intangibles," "chattel paper," "documents," "letters of
credit," "instruments," "deposit accounts," "inventory," "farm products,"
"fixtures" and "equipment," as such terms are defined in Division 9 of the
Washington Uniform Commercial Code in effect on the date hereof, and all
products, proceeds and insurance proceeds of the foregoing.
3. Representations And Agreements of Borrower. Borrower represents to Bank as
follows, and Borrower agrees that the following representations will continue to
be true, and that Borrower will comply with all of the following agreements
throughout the term of this Agreement:
3.1 Corporate Existence and Authority. Borrower, if a corporation, is and will
continue to be, duly authorized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation. The execution, delivery and
performance by Borrower of this Agreement, and all other documents contemplated
hereby have been duly and validly authorized, and do not violate any law or any
provision of and are not grounds for acceleration under, any agreement or
instrument which is binding upon Borrower.
3.2 Name: Places of Business. The name of Borrower set forth in this Agreement
is its correct name. Borrower shall give Bank 15 days' prior written notice
before changing its name. The address set forth in the heading to this Agreement
is Borrower's chief executive office. In addition, Borrower has places of
business and Collateral is located only at the locations set forth on the
Schedule. Borrower will give Bank at least 15 days prior written notice before
changing its chief executive office or locating the Collateral at any other
location.
3.3 Collateral. Bank has and will at all times continue to have a first-
priority perfected security interest in all of the Collateral other than
specific equipment identified in existing filed or to be filed Financing
Statements. Borrower will immediately advise Bank in writing of any material
loss or damage to the Collateral.
3.4 Financial Condition and Statements. All financial statements now or in the
future delivered to Bank have been, and will be prepared in conformity with
generally accepted accounting principles. Since the last date covered by any
such statement, there has been no material adverse change in the financial
condition or business of Borrower. Borrower will provide Bank: (i) within 30
days after the end of each month, a monthly financial statement prepared by
Borrower, and such other information as Bank shall reasonably request; (ii)
within 120 days following the end of Borrower's fiscal year, complete annual
financial statements, certified by independent certified public accountants
acceptable to Bank and accompanied by the unqualified report thereon by said
independent certified public, accountants; and (iii) other financial information
reasonably requested by Bank from time to time.
3.5 Taxes: Compliance with Law. Borrower has filed, and will file, when due,
all tax returns and reports required by applicable law, and Borrower has paid,
and will pay, when due, all taxes, assessments, deposits and contributions now
or in
the future owed by Borrower. Borrower has complied, and will comply, in all
material, respects, with all applicable laws, rules and regulations.
3.6 Insurance. Borrower will at all times adequately insure all of the tangible
personal property Collateral and carry such other business insurance as is
customary in Borrower's industry.
3.7 Access to Collateral and Books and Records. At reasonable times, on one
business day's notice, Bank, or its agents, shall have the right to inspect the
Collateral, and the right to audit and copy Borrower's books and records.
3.8 Banking Relationship and Operating Accounts. Borrower shall maintain its
primary operating deposit accounts with Bank. Borrower shall at all times
maintain its primary banking relationship with Bank.
3.9 Additional Agreements. Borrower shall not, without Bank's prior written
consent, do any of the following: (i) enter into any transaction outside the
ordinary course of business except for the sale of capital stock to venture
investors, provided that Borrower promptly delivery written notification to Bank
of any such stock sale; (ii) sell or transfer any Collateral, except in the
ordinary course of business; (iii) pay or declare any dividends on Borrower's
stock (except for dividends payable solely in stock of Borrower; (iv) redeem,
retire, purchase or otherwise acquire, directly or indirectly, any of Borrower's
stock other than the repurchase of up to five percent (5%) of Borrower's then
issued stock in any fiscal year from Borrower's employees or directors pursuant
to written agreements with Borrower; or (v) sell, transfer or grant a security
interest any of its rights, title or interest in intellectual property,
including, without limitation, any patents, copyrights or trademarks.
4. Term. This Agreement shall continue in effect until the maturity date set
forth on the Schedule (the "Maturity Date"). This Agreement may be terminated,
without penalty, prior to the Maturity Date as follows: (i) by Borrower,
effective three business days after written notice of termination is given to
Bank; or (ii) by Bank at any time after the occurrence of an Event of Default,
without notice, effective immediately. On the Maturity Date or on any earlier
effective date of termination, Borrower shall pay all Obligations in full,
whether or not such Obligations are otherwise then due and payable. No
termination shall in any way affect or impair any security interest or other
right or remedy of Bank, nor shall any such termination relieve Borrower of any
obligation to Bank, until all of the Obligations have been paid and performed in
full.
5. Events of Default and Remedies. The occurrence of any of the following
events shall constitute an "Event of Default" under this Agreement: (a) Any
representation, statement, report or certificate given to Bank by Borrower or
any of its officers, employees or agents, now or in the future, is untrue or
misleading in a material respect; or (b) Borrower fails to pay when due any Loan
or any interest thereon or any other monetary Obligation; or (e) the total
Obligations outstanding at any time exceed the Credit Limit; or (d) Borrower
fails to perform any other non-monetary Obligation, which failure is not cured
within 5 business days after the date due; or (e) Dissolution, termination of
existence, insolvency or business failure of Borrower or appointment of a
receiver, trustee or custodian, for all or any part of the property of,
assignment for the benefit of creditors by, or the commencement of any
proceeding by or against Borrower under any reorganization, bankruptcy,
insolvency, arrangement, readjustment of debt, dissolution or liquidation law or
statute of any jurisdiction, now or in the future in effect; or (f) a material
adverse change in the business, operations, or financial or other condition of
Borrower. If an Event of Default occurs, Bank, shall have the right to
accelerate and declare all of the Obligations to be immediately due and payable,
increase the interest rate by an additional five percent per annum, and exercise
all rights and remedies recorded by applicable law. If any interest payment,
principal payment or principal balance payment due from Borrower is delinquent
ten or more days, Borrower agrees to pay Bank a late charge in the amount of 5%
of the payment so due and unpaid, in addition to the payment; but nothing in
this provision is to be construed as any obligation an the part of Bank to
accept payment of any payment past due or less than the total unpaid principal
balance after maturity. All payments shall be applied first to any late charges
owing, then to interest and the remainder, if any, to principal.
6. General. If any provision of this Agreement is held to be unenforceable,
the remainder of this Agreement shall still continue in full force and effect.
This Agreement and any other written agreements, documents and instruments
executed in connection herewith are the complete agreement between Borrower and
Bank and supersede all prior and contemporaneous negotiations and oral
representations and agreements, all of which are merged and integrated in this
Agreement. There are no oral understandings, representations or agreements
between the parties which are not in this Agreement or in other written
agreements signed by the parties in connection this Agreement. The failure of
Bank at any time to require Borrower to comply strictly with any of the
provisions of this Agreement shall not waive Bank's right later to demand and
receive strict compliance. Any waiver of a default shall not waive any other
default. None of the provisions of this Agreement may be waived except by a
specific written waiver signed by an officer of Bank and delivered to Borrower.
The provisions of this Agreement may not be amended, except in a writing signed
by Borrower and Bank. Borrower shall reimburse Bank for all reasonable
attorney's fees and all other reasonable costs incurred by Bank, in connection
with this Agreement (whether or not lawsuit is filed) including any post
petition bankruptcy activities. If Bank or Borrower files any lawsuit against
the other predicated on a breach of this Agreement, the prevailing party shall
be entitled to recover its reasonable costs and attorney's fees from the non-
prevailing party. Borrower may not assign any rights under this Agreement
without Bank's prior written consent. This Agreement shall be governed by the
laws of the State of California to the jurisdiction of whose courts Borrower
hereby agrees to submit.
7. Mutual Waiver of Jury Trial. BORROWER AND BANK EACH HEREBY WAIVE THE RIGHT
TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN
ANY WAY RELATING TO, THIS AGREEMENT
OR ANY CONDUCT, ACT OR OMISSION OF BANK OR BORROWER OR ANY OF THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR AFFILIATES.
8. Reference Proceedings. a. Other than (i) non-judicial foreclosure and all
matters in connection therewith regarding security interest in property; or (ii)
the appointment of a receiver, or the exercise of other provisional remedies
(any and all of which may be initiated pursuant to applicable law), each
controversy, dispute or claim ("Claim") between the parties arising out of or
relating to this Agreement, which is not settled in writing within ten days
after the "Claim Date" (defined as the date on which a party gives written
notice to all other parties that a controversy, dispute or claim exists), will
be settled by a reference proceeding in Los Angeles, California in accordance
with the provisions of Section 638 et seq. of the California Code of Civil
-- ---
Procedure, or their successor section ("CCP"), which shall constitute the
exclusive remedy for the settlement of any Claim, including whether such Claim
is subject to the reference proceeding and the parties waive their rights to
initiate any legal proceedings against each other in any court or jurisdiction
other than the Superior Court of Los Angeles (the "Court"). The referee shall be
a retired Judge selected by mutual agreement of the parties, and if they cannot
so agree within thirty days after the Claim Date, the referee shall be selected
by the Presiding Judge of the Court. The referee shall be appointed to sit as a
temporary judge, as authorized by law. The referee shall (a) be requested to set
the matter for hearing within sixty (60) days after the Claim Date and (b) try
any and all issues of law or fact and report a statement of decision upon them,
if possible, within ninety (90) days of the Claim Date. Any decision rendered by
the referee will be final, binding and conclusive and judgment shall entered
pursuant to CCP 644 in the Court. All discovery permitted by this Agreement
shall be completed no later than fifteen (15) days before the first hearing date
established by the referee. The referee may extend such period in the event of a
party's refusal to provide requested discovery for any reason whatsoever,
including, without limitation, legal objections raised to such discovery or
unavailability of a witness due to absence or illness. No party shall be
entitled to "priority" in conducting discovery. Depositions may be taken by
either party upon seven (7) days written notice, and, request for production or
inspection of documents shall be responded to within ten (10) days after
service. All disputes relating to discovery which cannot be resolved by the
parties shall be submitted to the referee whose decision shall be final and
binding upon the parties.
b. The referee shall be required to determine all issues in accordance
with existing case law and the statutory laws of the State of California. The
rules of evidence applicable to proceedings at law in the State of California
will be applicable to the reference proceeding. The referee shall be empowered
to enter equitable as well as legal relief, to provide all temporary and/or
provisional remedies and to enter equitable orders that will be binding upon the
parties. The referee shall issue a single judgment at the close of the reference
proceeding which shall dispose of all of the claims of the parties that are the
subject of the reference. The parties hereto expressly reserve the right to
contest or appeal from the final judgment or any appealable order or
appealable judgment entered by the referee. The parties expressly reserve the
right to findings of fact, conclusions of law, a written statement of decision,
and the right to move for new trial or a different judgment, which new trial, if
granted, is also to be a reference proceeding under this provision.
Borrower:
HEALTHKNOWLEDGE CORPORATION
By: /s/ X. Xxxxxxxxx
-------------------------------------
President or Vice President
By: /s/ Xxxxxxxxxxx Xxxxxxx
-------------------------------------
(Assistant) Secretary or Chief
Financial Officer
Bank:
IMPERIAL BANK
By: /s/
-------------------------------------
Title: Senior Vice President
[LOGO OF IMPERIAL BANK]
Master schedule to Starter Kit Loan and Security Agreement
Borrower: HealthKnowledge Corporation
Date: 9/22/97
----------------------
This Schedule is incorporated into and an integral part of the Starter Kit
Loan and Security Agreement between Imperial Bank ("Bank") and the above-named
Borrower of even date.
Credit Limit (Aggregate)
(Section 1): $750,000 (includes, without limitation, Equipment
Advances and the Merchant Services and Business
Bancard Reserve, if any)
Interest Rate (Section 1): The rate equal to Bank's Prime Rate in effect from
time to time, plus 1.50% per year. Interest shall
be calculated on the basis of a 360 day year for
the actual number of days elapsed. The Prime Rate
shall be the rate announced from time to time by
Bank as its "Prime Rate;" as a base rate upon
which other rates charged by Bank are based, and
it is not necessarily the best rate available at
Bank. The interest rate applicable to the
Obligations shall change on each date there is a
change in the Prime Rate.
Maturity Date (Section 4): March 31, 1999.
Other Locations and Addresses
(Section 3.2): __________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
Other Agreements: 1. Loan Fee. Borrower shall concurrently pay
Bank a non-refundable Loan Fee in the amount of
$3,750.00.
2. _____________________________________________
__________________________________________________
__________________________________________________
Borrower: Bank:
HEALTHKNOWLEDGE CORPORATION IMPERIAL BANK
By: /s/ X. Xxxxxxxxx By: /s/
--------------------------------- -----------------------------
President or Vice President
Title: Senior Vice President
By: /s/ Xxxxxxxxxxx Xxxxxxx
---------------------------------
(Assistant) Secretary or Chief
Financial Officer
[LOGO OF IMPERIAL BANK]
Schedule to
Starter Kit Loan and Security Agreement (Equipment Advances)
Borrower: HealthKnowledge Corporation
Date: 9/22/97
-------------------------------
This Schedule is an integral part of the Loan and Security Agreement
between Imperial Bank ("Bank") and the above-named Borrower of even date.
Credit Limit (Equipment)
(Section 1): $750,000 (such amount to be funded under the aggregate
Credit Limit). Equipment Advances will be made only on
prior to March 31, 1998 (the "Last Advance Data") and
only for the purpose of purchasing equipment reasonably
acceptable to Bank. Borrower must provide invoices for
the equipment to Bank on or before the Last Advance
Data.
Interest Rate
(Section 1): The rate equal to Bank's Prime Rate in effect from time
to time, plus 1.50% per annum. Interest shall be
calculated on the basis of a 360 day year for the
actual number of days elapsed. The Prime Rate shall be
the rate announced from time to time by Bank as its
"Prime Rate;" as a base rate upon which other rates
charged by Bank are based, and it is not necessarily
the best rate available at Bank. The interest rate
applicable to the Obligations shall change on each date
there is a change in the Prime Rate.
Maturity Date
(Section 4): After the Last Advance Date, the unpaid principal
balance of the Equipment Advances shall be repaid in
thirty-six (36) equal monthly installments of
principal, plus interest, commencing on April, 30 1998
and continuing on the same day of each month thereafter
until the entire unpaid principal balance of the
Equipment Advances and all accrued unpaid interest have
been paid (subject to Bank's right to accelerate the
Equipment Advances on an Event of Default).
Borrower: Bank:
HEALTHKNOWLEDGE CORPORATION IMPERIAL BANK
By: /s/ X. Xxxxxxxxx By: /s/
----------------------------- ----------------------------------
President or Vice President
Title: Senior Vice President
By: /s/ Xxxxxxxxxxx Xxxxxxx
-----------------------------
(Assistant) Secretary or Chief
Financial Officer
