<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT #1
FORM 10-QSB/A
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1996
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission File Number: 0-24696
NATIONAL DIAGNOSTICS, INC.
(Exact Name of Registrant as Specified in its Charter)
Florida 59-3248917
------- (I.R.S. Employer Identification No.)
(State or other jurisdiction of
incorporation or organization)
737B West Brandon Blvd., Brandon, Florida 33511
- ----------------------------------------- -----
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, including area code: (813) 661-9501
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES [X] NO [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock as of the latest practicable date:
Class: Common Stock, No Par Value Outstanding at November 6, 1996: 2,628,577
Transitional Small Business Disclosure Format (check one) YES [ ] NO [X]
Page 1 of 19
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: November 22, 1996
NATIONAL DIAGNOSTICS, INC.
/s/ Curtis L. Alliston
-------------------------------------
Curtis L. Alliston
President and Chief Operating Officer
/s/ Dennis C. Hult
-------------------------------------
Dennis C. Hult
Comptroller
19
<PAGE> 3
NATIONAL DIAGNOSTICS, INC.
EXHIBIT INDEX TO FORM 10-QSB
Exhibits
10.34 Equipment Lease Agreement dated July 15, 1996 between National
Diagnostics/Riverside, Inc. and Siemens Credit Corporation
relating to Riverside's computer tomography equipment.
10.35 Equipment Lease Agreement dated August 12, 1996 between
National Diagnostics/Riverside, Inc. and Siemens Credit
Corporation relating to the Riverside's ultrasound equipment.
10.36 Promissory Note and Business Loan Agreement dated September 9,
1996 between Brandon Diagnostic Center, Ltd. and South
Hillsborough Community Bank related to equipment refinancing.
10.37 Equipment Lease Agreement dated September 11, 1996 between
National Diagnostics/Riverside, Inc. ("Riverside") and
Siemens Credit Corporation relating to Riverside's Sireskop
CX.
10.38 ** Loan and Security Agreement dated September 13, 1996 between
National Diagnostics, Inc. and DVI Business Credit Corporation
relating the Company's line of credit.
27 ** Financial Data Schedule (For SEC Use Only)
--------------------------
** - Filed Previously with Form 10-QSB
20
<PAGE> 1
[LOGO] SIEMENS EXHIBIT 10.34
SIEMENS CREDIT CORPORATION
5300 BROKEN SOUND BOULEVARD, N.W.
BOCA RATON, FL 33487-3509
(800) 327-4443 (407) 994-7400
AGREEMENT #: 110-0001163-000
LESSEE: National Diagnostics/Riverside, Inc.
---------------------------------------
(Full Legal Name of Lessee)
BILLING
ADDRESS: 2345 Forbes Street
(Duval County)
Jacksonville, FL 32204
City, County, State, Zip
EQUIPMENT
LOCATION: Same as Above
VENDOR: Siemens Medical Systems, Inc.
----------------------------------------
PAYMENT SCHEDULE
LEASE TERM NUMBER OF LEASE PAYMENT AMOUNT
(IN MONTHS) LEASE PAYMENTS
72 72 #1 - 06 @ $ -0-
# 7 - 72 @ $12,574.00
- -----------------------------------------------------------------
PAYMENT PERIOD: PURCHASE OPTION PRICE
/X/ MONTHLY / / OTHER $ 1.00
-------------
- -----------------------------------------------------------------
ADVANCE LEASE PAYMENTS
#(s) None Required TOTALING $ -0-
DUE DATE(S):
- -----------------------------------------------------------------
EQUIPMENT DESCRIPTION
Siemens Somatom Plus per Quote #151306
(New)
Equipment Cost: $580,090.00
6% FL & Discretionary Taxes: 34,830.40
-----------
TOTAL EQUIPMENT COST: $ $614,920.40
- ------------------------------------------------------------------
(INHERENT INTEREST $214,963.60)
TERMS AND CONDITIONS OF AGREEMENT
1. LEASE: Lessor hereby leases to Lessee and Lessee leases from Lessor,
subject to the terms and conditions of this Equipment Lease Agreement (herein
"Lease"), the personal property described above (herein "Equipment").
2. TERM AND LEASE PAYMENTS: The Lease shall become effective at the time of
Lessor's acceptance of the Lease (by execution hereof) at the address set forth
above, by an authorized representative of Lessor, and shall continue in effect
through the last day of the lease term specified above (herein "Lease Term").
The Lease Term shall commence upon the earlier of (i) completion of
installation of the Equipment, (ii) first commercial use of the Equipment, or
(iii) sixty days from shipment of the bulk of the Equipment if completion of
installation has been delayed due to causes beyond the reasonable control of
Lessor or vendor; (herein "Commencement Date"). For said Lease Term, Lessee
agrees to pay vendor; (herein "Commencement Date"). For said Lease Term Lessee
agrees to pay Lessor the number of lease payments specified above, each in the
amount specified above (herein "Lease Payments") for the payment periods
specified above (herein "Payment Periods"), including any Advance Lease
Payments specified above, with the first Lease Payment being due on the
Commencement Date, and the remaining Lease Payments being due on the same
day of each consecutive Payment Period thereafter for the duration of the Lease
Term. Lessee agrees to pay on demand, as a late charge, 1.5% per month limited
by the maximum rate permitted by law, on all overdue payments hereunder, whether
such payments are due prior to or after a Default (as hereinafter defined).
All payments provided for herein shall be payable at the office of Lessor set
forth above, or at any other place designated by Lessor. The Lease is a net
lease and Lessee shall not be entitled to any abatement of, reduction of, or
setoff against Lease Payments for any reason whatsoever. The Lease may not be
terminated or cancelled for any reason whatsoever, except as expressly provided
herein. No amounts hereunder may be prepaid without the written consent of
Lessor.
3. DISCLAIMER OF WARRANTIES; LIMITATION OF REMEDY; LIMITATION OF LIABILITY:
Lessee has selected both the equipment and the supplier from whom at Lessee's
request Lessor agrees to purchase the Equipment. LESSEE ACKNOWLEDGES THAT
LESSOR HAS NO SPECIAL FAMILIARITY OR EXPERTISE WITH RESPECT TO THE EQUIPMENT.
LESSEE AGREES THAT THE EQUIPMENT LEASED HEREUNDER IS LEASED "AS IS" AND IS OF A
SIZE, DESIGN AND CAPACITY SELECTED BY LESSEE AND THAT LESSEE IS SATISFIED THAT
THE SAME IS SUITABLE FOR LESSEE'S PURPOSES, AND THAT EXCEPT AS MAY OTHERWISE BE
SPECIFICALLY PROVIDED IN THE LEASE, LESSOR HAS MADE NO REPRESENTATION OR
WARRANTY AS TO ANY MATTER WHATSOEVER. LESSOR DISCLAIMS ALL WARRANTIES WITH
RESPECT TO THE EQUIPMENT INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL LESSOR
BE LIABLE FOR ANY LOSS OF USE, REVENUE, ANTICIPATED PROFITS OR SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THE LEASE OR THE USE, PERFORMANCE OR MAINTENANCE OF THE EQUIPMENT. If the
Equipment is not properly installed, does not operate as represented or
warranted by the vendor, manufacturer and/or service company or is
unsatisfactory for any reason, Lessee shall make any claim on account thereof
solely against the vendor, manufacturer and/or service company and shall,
nevertheless, pay Lessor all amounts payable under the Lease and shall not set
up against Lessee's obligations any such claims as a defense, counterclaim,
deduction, setoff or otherwise. For the Lease Term, Lessor hereby appoints
Lessee as Lessor's agent, so long as no Default (as hereinafter defined) has
occurred and is continuing, to assert at Lessee's expense (if any) and to the
extent permitted by applicable law, any right Lessor may have against any
vendor, manufacturer and/or service company to enforce any product warranties
with respect to the Equipment, provided however, Lessee shall indemnify and
defend Lessor from and against all claims, expenses, damages, losses and
liabilities incurred or suffered by Lessor in connection with any such action
taken.
4. TITLE; IDENTIFICATION; PERSONAL PROPERTY: Lessee acknowledges that subject
to the provisions of Section 10 hereof, title to the Equipment shall at all
times be vested in Lessor, and no right, title or interest in the Equipment
shall pass to Lessee other than, conditioned upon Lessee's compliance with and
fulfillment of the terms and conditions of the Lease, the right to possess and
use the Equipment for the full Lease Term. Lessee agrees not to sell, assign,
sublet, pledge, or otherwise encumber any interest in the Lease or the
Equipment and agrees to keep the same free from any lien, encumbrance, right of
distraint or any other claim which may be asserted by any third party. Lessee
shall immediately notify Lessor in writing of any tax or other liens attaching
to the Equipment. Lessor may require plates or markings to be affixed to or
placed on the Equipment indicating Lessor's interest. Lessor and Lessee
hereby confirm their intent that the Equipment always remain and be deemed
personal property even though said Equipment may hereafter become attached or
affixed to realty. Lessee shall obtain all such waivers as Lessor may
reasonably require to acknowledge Lessor's title to and assure Lessor's right
to remove the Equipment, including any landlord and mortgagee waivers.
5. PAYMENT OF TAXES; GENERAL INDEMNIFICATION: Lessee shall pay promptly to
Lessor when due, all taxes, fees and assessments, including but not limited to,
all license and registration fees, sales, use, property, gross receipts, excise,
transaction, ad valorem, privilege, intangible, stamp or other taxes or
charges, together with any fines, penalties or interest thereon, now or
hereafter imposed by any governmental body, upon or with respect to, any of the
Equipment or the use, possession, ownership, leasing, operation, delivery or
return thereof (excluding however, franchise taxes and any taxes based on the
net income of Lessor). Any fees, taxes or other amounts paid by Lessor upon
failure of Lessee to make such payments set forth in this Section 5 shall be
payable by Lessee to Lessor upon demand by Lessor. Lessee agrees to indemnify
and hold Lessor harmless from and against any and all claims, losses,
liabilities, damages, penalties, actions and suits (including reasonable legal
costs and expenses in connection therewith) incurred by Lessor which result
from, or relate to, the manufacture, purchase, ownership, maintenance,
(CONTINUED ON REVERSE SIDE)
IN WITNESS WHEREOF, the parties hereto have duly executed the Lease as of the
dates set forth below. For all purposes hereof, the date of the Lease shall be
the date of Lessor's acceptance as set forth below.
ACCEPTED BY:
LESSOR: SIEMENS CREDIT CORPORATION
BY: /S/
----------------------------
(Authorized Signature)
NAME: UDO DIELITZ
--------------------------
(Printed or Typed)
TITLE: ASST. TREASURER
-------------------------
DATE:
-------------------------
Effective 7/15/96
By execution hereof, the signer certifies that (s)he has read the entire Lease,
front and back, that Lessor or its representatives have made no agreements or
representations except as set forth herein and that (s)he is duly authorized
to execute the Lease on behalf of Lessee.
LESSEE: National Diagnostics/Riverside, Inc.
--------------------------------------
BY:
--------------------------------------
(Authorized Signature)
NAME:
--------------------------------------
(Printed or Typed)
TITLE:
--------------------------------------
DATE: 9/29/95
--------------------------------------
<PAGE> 2
modification, delivery, installation, possession, condition use, acceptance,
rejection, operation or return of the Equipment.
6. INSTALLATION AND DELIVERY: Lessee shall provide a suitable installation
environment for the Equipment as specified in the applicable manufacturer's or
vendor's manuals, and except as otherwise specified by the manufacturer or
vendor, furnish all labor required for unpacking and placing each item of
Equipment in the desired location. Lessee shall also be responsible for any
delivery, rigging, destination and installation charges charged by the
manufacturer or vendor with respect to the Equipment.
7. OPERATION; USE; INSPECTION: For the full Lease Term, Lessee shall
operate the Equipment in accordance with all applicable manufacturer and vendor
manuals or instructions by fully qualified and duly authorized personnel only,
in accordance with all applicable laws and regulations. The Equipment shall be
used for business purposes only and only for its normally intended purpose. For
said Lease Term, Lessee shall properly maintain the Equipment, or cause it to be
properly maintained, by a fully qualified service company, and shall immediately
notify Lessor in writing of the entity maintaining the Equipment and of any
change of such entity. Such maintenance shall be performed in accordance with
all requirements necessary to enforce all product warranty rights. All
operating and maintenance costs with respect to the Equipment shall be borne by
Lessee. Lessee shall not: (a) use, operate or locate the Equipment in any area
excluded from coverage by any insurance required under the Lease; (b) abandon
the Equipment; (c) alter the Equipment; (d) permit the Equipment to be removed
from the equipment location specified above (herein "Equipment Location"), or
any subsequent location, without the prior written consent of Lessor, which
consent shall not be unreasonably withheld; (e) without the prior written
consent of Lessor, allow the Equipment or any item of it, to be affixed to
realty in such manner as to cause the Equipment or such item to become a
fixture; or (f) without the prior written consent of Lessor, affix or install
any accessory, equipment or device on any item of Equipment if such (i) is not
readily removable, or (ii) will impair the originally intended function or use
of such Equipment. All additions, repairs, parts, accessories, equipment and
devices attached or affixed to any item of Equipment which are not readily
removable, shall become the property of Lessor and part of the Equipment for all
purposes hereof. Lessor shall have the right from time to time during normal
business hours to enter upon the Equipment Location or elsewhere for the purpose
of confirming the existence, condition or proper maintenance of the Equipment.
8. RISK OF LOSS; INSURANCE: (a) Lessee agrees that it shall bear all risk of
loss, damage to or destruction of the Equipment. Lessee shall give Lessor
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, Lessee shall immediately place such item(s) in good
repair (with no abatement of Lease Payments), with the proceeds of any
insurance recovery applied to the cost of such repair. Should any item(s) of
Equipment become lost, stolen, destroyed, worn out, damaged beyond repair,
condemned, confiscated, seized or requisitioned (herein "Event of Loss"),
Lessee shall, at the option of Lessor, either (i) replace the same with like
equipment in good repair (with no abatement of Lease Payments), or (ii) pay to
Lessor on the lease payment date immediately following such Event of Loss, the
pro rata portion relating to such item(s) of the sum of (A) the remaining Lease
Payments for the balance of the Lease Term and (B) the purchase option price
specified above (herein "Purchase Option Price"), such sum discounted at the
per annum rate implicit in this Lease assuming exercise by Lessee of any
purchase option contained herein (herein "Lease Rate"), plus any other payments
due from Lessee to Lessor with respect to such item(s), whereupon the Lease
shall terminate as to such item(s) and Lessor shall adjust the remaining Lease
Payments and Purchase Option Price accordingly.
(b) For the full Lease Term, Lessee, at its expense, shall maintain
comprehensive general liability insurance, and "fire and allied perils" and
"all risks" property insurance with respect to the Equipment, both in such
amounts as Lessor shall require, except that such property insurance shall be
in an amount at least equal to the greater of the full replacement value of the
Equipment or the sum of the remaining Lease Payments for the balance of the
Lease Term; and such insurance shall be placed with carriers acceptable to
Lessor. The liability insurance policy shall name Lessor as additional insured
and the property insurance policy shall name Lessor as loss payee to the extent
its interest 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
Lessor. Lessee shall furnish to Lessor within thirty (30) days of delivery of
the Equipment, a certificate of insurance that such coverage is in effect,
however, Lessor shall be under no duty either to ascertain the existence of or
to examine such insurance policies or to advise Lessee in the event that such
insurance coverage does not comply with the requirements hereof.
9. DEFAULT AND REMEDIES: (a) Any of the following shall constitute a
default by Lessee hereunder (herein "Default"): (i) failure by Lessee to pay
any amounts hereunder when due and such remains unremedied for a period of ten
(10) days from the due date; or (ii) failure by Lessee to comply with any
provisions or perform any of its obligations arising under the Lease or under
any other documents or agreements related hereto and such remains
unremedied by Lessee for a period of twenty (20) days; or (iii) any
representations or warranties made or given by Lessee in connection with the
Lease or any other document or agreement related hereto were false or
misleading 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 (v) commencement of any insolvency,
bankruptcy or similar proceedings by or against Lessee or any guarantor of any
of Lessee's obligations hereunder (herein "Guarantor"), including any
assignment by Lessee 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 (vi) any act of Lessee which imperils the value of the
Equipment or the prospect of full performance of Lessee's obligations
hereunder, including but not limited to the liquidation or dissolution of
Lessee or the commencement of any acts relative thereto, or without the prior
written consent of Lessor, any sale or other disposition of all or
substantially all of the assets of Lessee, or any merger or consolidation of
Lessee unless Lessee is the surviving entity, or the cessation of business by
Lessee; or (vii) a default by Lessee under any other agreement with Lessor or
any assignee of the Lease; or (viii) the death or dissolution of Lessee or of
any Guarantor, the withdrawal of any partner of Lessee if Lessee is a
partnership, or the inability of Lessee or of any Guarantor hereunder to
perform any of the obligations contained herein or in any applicable guaranty.
(b) Upon any Default, Lessor may exercise any one or more of the following
remedies (which remedies shall be cumulative): (i) terminate the Lease; (ii)
declare all remaining Lease Payments for the balance of the Lease Term
discounted at the Lease Rate, plus all other amounts due from Lessee hereunder,
immediately due and payable in full; (iii) secure peaceable repossession and
removal of the Equipment by Lessor or its agent without judicial process; (iv)
demand that Lessee return the Equipment to Lessor in accordance with Section 11
hereof; (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 Lessor may deem advisable and Lessor may be the
purchaser at any such sale; (vi) demand that Lessee 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 or proceed by
appropriate court action to enforce the Lease or recover damages for the breach
hereof. To the extent permitted by applicable law, Lessee waives all rights it
<PAGE> 3
may have to limit or modify any of Lessor's rights and remedies hereunder,
including but not limited to, any right of Lessee to require Lessor to dispose
of the Equipment or otherwise mitigate its damages hereunder, in the event that
Lessor disposes of the Equipment pursuant to this Section 9(b), Lessee shall be
liable for any deficiency remaining after such disposition and application of
the resulting net proceeds, less the Purchase Option Price discounted at the
Lease Rate, to Lessee's obligations hereunder in the order of application as
Lessor shall elect.
10. PURCHASE OPTION: Provided no Default has occurred and is continuing and
provided the Lease shall not have previously terminated, Lessee shall have the
option, exercisable by written notice to Lessor received by Lessor at least
ninety (90) but not more than one hundred eighty (180) days before the
expiration of the Lease Term, to purchase on the day following the last day of
such term (herein "Purchase Date"), all but not less than all of the Equipment
subject to the Lease for the Purchase Option Price. Provided Lessee has
exercised such option, Lessee shall pay to Lessor on the Purchase Date the
aforementioned Purchase Option Price in cash, together with all sales and other
taxes applicable to the transfer of the Equipment and any other amounts as may
then be due and owing hereunder, whereupon Lessor shall transfer its interest
in the Equipment to Lessee without recourse or warranty, on an as-is, where-is
basis. In the event that Lessee fails to exercise such purchase option, Lessee
shall (upon termination of the Lease) return the Equipment to Lessor on demand,
in accordance with the provisions of Section 11 hereof.
11. RETURN OF EQUIPMENT: Upon demand of Lessor pursuant to Section 9 or 10
hereof, Lessee, at its own risk and expense, shall immediately return the
Equipment to Lessor, packed for shipment in accordance with manufacturer's
specifications, in good working order and eligible for manufacturer's
maintenance, if available, freight prepaid and insured, to such location within
the continental United States as Lessor shall designate.
12. LESSEE REPRESENTATIONS AND ASSURANCES: Lessee represents: that it is duly
organized and validly existing under the laws of its state of organization and
by consummation of this transaction, Lessee is not in violation of any
governmental statute or regulation, nor will consummation of this transaction
cause any breach, default or violation of the certificate of incorporation or
by-laws (if Lessee is a corporation), the partnership certificate or
partnership agreement (if Lessee is a partnership) or any judgment, decree or
agreement, all as may apply to Lessee; that this transaction was duly
authorized by appropriate corporate or partnership action (as applicable); and
the Lease is enforceable in accordance with its terms. Lessee shall promptly
execute and deliver to Lessor such further documents and take such further
action as Lessor may reasonably request in order to more effectively carry out
the intent and purpose of the Lease. Lessee shall provide Lessor with audited
and other financial statements and such other information as Lessor shall
reasonably request from time to time.
13. NOTICES; CHANGES; SECURITY: 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 specified above (or to such other address as such
party shall have designated by proper notice) or (b) by personal delivery.
Lessee consents to service of process by certified mail at its address above
(or to such other address as Lessee shall have designated by proper notice) in
connection with any legal action brought by Lessor. Lessee authorizes Lessor
to fill in descriptive material herein (including serial numbers) and to
correct any patent errors hereunder. In the event the Lease is deemed to be
intended as security, Lessor shall have, to secure all payments and all other
obligations of Lessee to Lessor hereunder, a security interest in the Equipment
together with all accessions, attachments, replacements, substitutions,
modifications and additions thereto, now or hereafter acquired, and all
proceeds thereof (including insurance proceeds). Lessee shall execute and
authorizes Lessor to file with such authorities and at such locations as Lessor
may deem appropriate. Uniform Commercial Code financing statements relating to
the Equipment and/or the Lease, and Lessee agrees to reimburse Lessor upon
demand for all costs incurred relative thereto. In addition, Lessee agrees
that an original or a photocopy of the Lease (including any addenda,
attachments and amendments hereto) may be filed by Lessor as a Uniform
Commercial Code financing statement. Lessee agrees to immediately notify
Lessor in writing of any change in Lessee's name or address, or discontinuance
of its place or places of business.
14. ASSIGNMENT BY LESSOR: The Lease or any interest of Lessor herein may be
assigned by Lessor. UPON NOTICE OF SUCH ASSIGNMENT LESSEE AGREES TO PAY
DIRECTLY TO ASSIGNEE WITHOUT ABATEMENT, DEDUCTION OR SETOFF ALL AMOUNTS WHICH
BECOME DUE HEREUNDER AND FURTHER AGREES THAT IT WILL NOT ASSERT AGAINST
ASSIGNEE ANY DEFENSE, COUNTERCLAIM OR SETOFF FOR ANY REASON WHATSOEVER IN ANY
ACTION FOR PAYMENT OR POSSESSION BROUGHT BY ASSIGNEE. Upon any such
assignment, such assignee (herein "Assignee") shall have and be entitled to any
and all rights and remedies of Lessor hereunder, all references in the Lease to
Lessor shall include Assignee except that Assignee shall not be chargeable with
any obligations or liabilities of Lessor hereunder. Lessee shall (if requested
by Lessor) acknowledge in writing any assignments (including any material terms
of the Lease) in a form supplied by Lessor.
15. MISCELLANEOUS: THE LEASE, OR ANY PART HEREOF, MAY NOT BE ASSIGNED BY
LESSEE WITHOUT THE WRITTEN CONSENT OF LESSOR and shall be binding upon and
inure to the benefit of the parties hereto, their legal representatives,
permitted successors and assigns. 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 Lessor of any right, remedy, or power hereunder, shall operate as a
waiver thereof or preclude Lessor from exercising any other right, remedy or
power hereunder. Any provision of the Lease 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. No action, regardless of form, arising out of the Lease may
be brought by Lessee more than two (2) years after the cause of action has
arisen. The representations, warranties, obligations, and indemnities of
Lessee under the Lease shall survive the termination of the Lease to the extent
required for their full observance and performance. The obligations of each
co-maker (if any) of the Lease, shall be primary, joint and several, and each
such co-maker hereby irrevocably consents to any extension of time for payments
and/or the execution of any refinancing agreement relative to the Lease. In
the event that Lessee fails to meet any of its obligations hereunder, Lessor
may at its option satisfy such obligation and Lessee shall reimburse Lessor on
demand therefor. In the event that legal or other action is required to
enforce Lessor's rights under the Lease (including the exercise of remedies
under Section 9 hereof), Lessee agrees to reimburse Lessor on demand for its
reasonable attorneys' fees and its other related costs and expenses. In
addition, notwithstanding any applicable state laws to the contrary, Lessee
agrees to reimburse Lessor for all reasonable attorneys' fees incurred by it
incident to any action or proceeding involving the Lessee brought pursuant to
the Bankruptcy Code, as amended, which are allowable under Section 506(b)
thereof. The captions in the Lease are for convenience only and shall not
define or limit any of the terms hereof. THE LEASE SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
<PAGE> 4
SIEMENS
CONTRACT ADDENDUM
CONTRACT NO.110-0001163-000
SUPPLEMENT NO. 1
(SCrC Ref# 110-0001163-001)
- --------------------------------------------------------------------------------
This Addendum shall become part of that certain Supplement No. 1 to Equipment
Lease Agreement No.110-0001163-000 between Siemens Credit Corporation, as
Lessor, and NATIONAL DIAGNOSTICS RIVERSIDE, INC., as Lessee, dated 9/29/95, as
amended (hereinafter "Lease").
Lessor and Lessee, as evidenced by Lessee's signature on that certain Contract
Addendum dated , hereby agree to modify this contract as follows:
MODIFICATIONS:
- -------------
Add: Chiller and Kodak 1120 Laser as described in Siemens Medical Systems, Inc.
Quote #
EQUIPMENT COST:
- --------------
CURRENT UPGRADE NEW TOTAL
$580,090.00 $ 82,858.70 $662,948.70
PAYMENTS:
- --------
The monthly lease payment amount shall increase by $1,694.14 from $12,574.00 to
$14,268.14 each, effective with the SEVENTH (7) PAYMENT, continuing for the
remaining SIXTY SIX (66) payments of the contract term.
All payments are inclusive of taxes.
LESSOR: SIEMENS CREDIT CORPORATION NATIONAL DIAGNOSTIC
RIVERSIDE INC:
BY: BY: /s/ C L ALLISTON
---------------------------- -----------------------
NAME: NAME: Curtis L. Alliston
---------------------------- -----------------------
TITLE: President
---------------------------- TITLE: -----------------------
DATE: DATE: 7-9-96
---------------------------- -----------------------
<PAGE> 1
EXHIBIT 10.35
EQUIPMENT LEASE AGREEMENT
AGREEMENT #: 159-0000141-000
===============================================================================
<TABLE>
<S> <C>
LESSOR: SIEMENS CREDIT CORPORATION PAYMENT SCHEDULE
991 U.S. Highway 22, SUITE 300, BRIDGEWATER, NJ 08807-2956 LEASE TERM NUMBER OF
Administrative Offices: (IN MONTHS) LEASE PAYMENTS
5300 Broken Sound Blvd. N.W., Boca Raton, FL 33487-3509 72 72
(800) 239-1043 LEASE PAYMENT AMOUNT: $ #'s 1-3 @ 0
LESSEE: National Diagnostics Riverside, Inc. #'s 4-72 @ $3,900.85
---------------------------------------------- --------------------------------------------------
(Full Legal Name of Lessee) PAYMENT PERIOD
X MONTHLY QUARTERLY OTHER
2345 Forbes St. --- -- -- ---------
---------------------------------------------- PURCHASE OPTION PRICE: $1.00
(Address) --------------------------------------------------
ADVANCE LEASE PAYMENTS:
Jacksonville, FL 32204.
---------------------------------------------- #(s) 0 TOTALING: $ 0
(City, County, State, Zip) -------- --------
DUE DATE(S)
EQUIPMENT --------------------------------------------------
LOCATION: Same As Above EQUIPMENT DESCRIPTION
----------------------------------------------
(Address) Ultrasound Elegra
---------------------------------------------- TOTAL EQUIPMENT COST: $ 190,652.00
(City, County, State, Zip) 6% FL & Discretionary Tax 11,464.12
Total 202,116.12
Inherent Interest 78,745.80
SUPPLIER: Siemens Medical Systems, Inc.
----------------------------------------------
</TABLE>
TERMS AND CONDITIONS OF AGREEMENT
1. LEASE: Lessor hereby leases to Lessee and Lessee leases from Lessor,
subject to the terms and conditions of this Equipment Lease Agreement (herein
"Lease"), the property described above (herein "Equipment"). Lessee
acknowledges either that (a) Lessee has reviewed and approved any written Supply
Contract covering the Equipment purchased from the supplier identified above
(herein "Supplier"), or (b) Lessor has informed or advised Lessee, in writing,
either previously or by the Lease, of the following: (i) the identity of the
Supplier, (ii) that Lessee may have rights under the Supply Contract and (iii)
that Lessee may contact the Supplier for a description of any such rights Lessee
may have under the Supply Contract. LESSEE ACKNOWLEDGES THAT NEITHER LESSOR NOR
THE SUPPLIER IS AN AGENT OF THE OTHER AND NEITHER HAS AUTHORITY TO BIND THE
OTHER.
(CONTINUED ON FOLLOWING PAGES)
================================================================================
<TABLE>
<S> <C>
IN WITNESS WHEREOF, the parties hereto have duly executed the Lease as of the dates set forth below. For all purposes hereof, the
date of the Lease shall be the date of Lessor's acceptance as set forth below. Lessee acknowledges that no amendment to the Lease
shall be effective unless in writing signed by the parties hereto.
BY EXECUTION HEREOF, THE SIGNER CERTIFIES THAT (S)HE HAS
READ THE ENTIRE LEASE, THAT LESSOR OR ITS REPRESENTATIVES
HAVE MADE NO AGREEMENTS OR REPRESENTATIONS EXCEPT AS SET
FORTH HEREIN AND THAT (S)HE IS DULY AUTHORIZED TO EXECUTE
ACCEPTED BY: THE LEASE ON BEHALF OF LESSEE.
LESSOR: SIEMENS CREDIT CORPORATION LESSEE: National Diagnostics Riverside, Inc.
BY: /s/ Anne C. Mickens BY: /s/ Curtis L. Alliston
--------------------------------------------- ------------------------------------------
(Authorized Signature) (Authorized Signature)
NAME: Anne C. Mickens NAME: Curtis L. Alliston
--------------------------------------------- ------------------------------------------
(Printed or Typed)
TITLE: Vice President TITLE: President
--------------------------------------------- ------------------------------------------
DATE: 8/13/96 DATE: 7-16-96
--------------------------------------------- ------------------------------------------
</TABLE>
[Effective 8/12/96]
<PAGE> 2
2. TERM AND LEASE PAYMENTS: The Lease shall become effective at the time of
Lessor's acceptance of the Lease (by execution hereof) at its New Jersey address
set forth above, by an authorized representative of Lessor, and shall continue
in effect through the last day of the lease term specified above (herein "Lease
Term"). The Lease Term shall commence upon the earliest of (i) completion of
installation of the Equipment, (ii) first commercial use of the Equipment, or
(iii) sixty (60) days from shipment of the bulk of the Equipment if completion
of installation has been delayed due to causes beyond the reasonable control of
Lessor or Supplier; (herein "Commencement Date") and thereupon Lessee agrees to
execute and deliver to Lessor a delivery and acceptance certificate in a form
acceptable to Lessor. For said Lease Term, Lessee agrees to pay to Lessor the
number of lease payments specified above, each in the amount specified above
(herein "Lease Payments") for the payment periods specified above (herein
"Payment Periods"), including any Advance Lease Payments specified above, with
the first Lease Payment being due on the Commencement Date, and the remaining
Lease Payments being due on the same day of each consecutive Payment Period
thereafter for the duration of the Lease Term. Any Advance Lease Payments will
be applied to Lease Payment #1, then to the remaining Lease Payments in reverse
order. Lessee 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,
whether such payments are due prior to or after a Default (as hereinafter
defined). All payments provided for herein shall be payable at the office of
Lessor set forth above, or at any other place designated by Lessor. The Lease
is a net lease and Lessee shall not be entitled to any abatement of, reduction
of, or setoff against Lease Payments for any reason whatsoever. The Lease may
not be terminated or cancelled for any reason whatsoever, except as expressly
provided herein. No amounts hereunder may be prepaid.
3. DISCLAIMER OF WARRANTIES; LIMITATION OF REMEDY; LIMITATION OF LIABILITY:
Lessee has selected both the Equipment and the Supplier from whom at Lessee's
request Lessor agrees to purchase the Equipment. LESSEE ACKNOWLEDGES THAT
LESSOR HAS NO SPECIAL FAMILIARITY OR EXPERTISE WITH RESPECT TO THE EQUIPMENT.
LESSEE AGREES THAT THE EQUIPMENT LEASED HEREUNDER IS LEASED "AS IS" AND IS OF A
SIZE, DESIGN AND CAPACITY SELECTED BY LESSEE AND THAT LESSEE IS SATISFIED THAT
THE SAME IS SUITABLE FOR LESSEE'S PURPOSES, AND THAT EXCEPT AS MAY OTHERWISE BE
SPECIFICALLY PROVIDED IN THE LEASE, LESSOR HAS MADE NO REPRESENTATION OR
WARRANTY AS TO ANY MATTER WHATSOEVER. LESSOR DISCLAIMS, AND LESSEE HEREBY
EXPRESSLY WAIVES AS TO LESSOR, ALL WARRANTIES WITH RESPECT TO THE EQUIPMENT
INCLUDING BUT NOT LIMITED TO ALL EXPRESS OR IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, QUALITY, CAPACITY OR
WORKMANSHIP, ALL EXPRESS OR IMPLIED WARRANTIES AGAINST PATENT INFRINGEMENTS OR
DEFECTS, WHETHER HIDDEN OR APPARENT, AND ALL EXPRESS OR IMPLIED WARRANTIES WITH
RESPECT TO COMPLIANCE OF THE EQUIPMENT WITH THE REQUIREMENTS OF ANY LAW,
REGULATION, SPECIFICATION OR CONTRACT RELATIVE THERETO. IN NO EVENT SHALL
LESSOR BE LIABLE (INCLUDING WITHOUT LIMITATION, 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 LEASE OR THE
USE, PERFORMANCE OR MAINTENANCE OF THE EQUIPMENT. If the Equipment is not
properly installed, does not operate as represented or warrantied by the
Supplier, manufacturer and/or service company or is unsatisfactory for any
reason, Lessee shall make any claim on account thereof solely against the
Supplier, manufacturer and/or service company and shall, nevertheless, pay
Lessor all amounts payable under the Lease and shall not set up against
Lessee's obligations any such claims as a defense, counterclaim, deduction,
setoff or otherwise. For the Lease Term, for so long as no Default (as
hereinafter defined) has occurred and is continuing, Lessor assigns to Lessee
(to the extent permitted by law) any right Lessor may have against the
Supplier, manufacturer and/or service company to enforce, at Lessee's expense
(if any), any product warranties with respect to the Equipment, provided
however, Lessee shall indemnify and defend Lessor from and against all claims,
expenses, damages, losses and liabilities incurred or suffered by Lessor in
connection with any such action taken.
4. TITLE; IDENTIFICATION; PERSONAL PROPERTY: Lessee acknowledges that, subject
to the provisions of Section 10 hereof, title to the Equipment shall at all
times be vested in Lessor, and no right, title or interest in the Equipment
shall pass to Lessee other than, conditioned upon Lessee's compliance with and
fulfillment of the terms and conditions of the Lease, the right to possess and
use the Equipment for the full Lease Term. Lessee agrees not to sell, assign,
sublet, pledge, or otherwise encumber any interest in the Lease or the
Equipment and agrees to keep the same free from any lien, encumbrance, right of
distraint or any other claim which may be asserted by any third party. Lessee
shall immediately notify Lessor in writing of any tax or other liens attaching
to the Equipment. Lessor may require plates or markings to be affixed to or
placed on the Equipment indicating Lessor's interest. Lessor and Lessee hereby
confirm their intent that the Equipment always remain and be deemed personal
property even though said Equipment may hereafter become attached or affixed to
realty. Lessee shall obtain all such waivers as Lessor may reasonably require
to acknowledge Lessor's title to and assure Lessor's right to remove the
Equipment, including any landlord and mortgagee waivers.
5. PAYMENT OF TAXES; GENERAL INDEMNIFICATION: Lessee shall pay promptly to
Lessor when due, all taxes, fees and assessments, including but not limited to,
all license and registration fees, sales, use, property, gross receipts,
excise, transaction, ad valorem, privilege, intangible, stamp or other taxes or
charges, together with any fines, penalties or interest thereon, now or
hereafter imposed by any governmental body, upon or with respect to, any of the
Equipment or the use, possession, ownership, leasing, operation, delivery or
return thereof (excluding however, franchise taxes and any taxes based on the
net income of Lessor). Any fees, taxes or other amounts paid by Lessor upon
failure of Lessee to make such payments set forth in this Section 5 shall by
payable by Lessee to Lessor upon demand by Lessor. Lessee agrees to indemnify
and hold Lessor harmless from and against any and all claims, losses, damages,
penalties, actions, suits and liabilities (including negligence, tort and
strict liability), together with all reasonable legal costs and expenses in
connection therewith, incurred by Lessor which result from, or relate to, the
manufacture, purchase, ownership, maintenance, modification, delivery,
installation, possession, condition, use, acceptance, rejection, operation or
return of the Equipment.
6. INSTALLATION AND DELIVERY: Lessee shall provide a suitable installation
environment for the Equipment as specified in the applicable manufacturer's or
Supplier's manuals, and except as otherwise specified by the manufacturer or
Supplier, furnish all labor required for unpacking and placing each item of
Equipment in the desired location. Lessee shall also be responsible for any
delivery, rigging, destination and installation charges charged by the
manufacturer or Supplier with respect to the Equipment.
7. OPERATION; USE; INSPECTION: For the full Lease Term, Lessee shall operate
the Equipment in accordance with all applicable manufacturer and Supplier
manuals or instructions by fully qualified and duly authorized personnel only,
in accordance with all applicable laws and regulations. The Equipment shall be
used for business purposes only and for its normally intended purpose. For
said Lease Term, Lessee shall properly maintain the Equipment, or cause it to
be properly maintained, by a fully qualified service company, and shall
immediately notify Lessor in writing of the entity maintaining the Equipment
and of any change of such entity. Such maintenance shall be performed in
accordance with all requirements necessary to enforce all product warranty
rights. All operating and maintenance costs with respect to the Equipment
shall be borne by Lessee. Lessee shall not: (a) use, operate or locate the
Equipment in any area excluded from coverage by any insurance required under
the Lease; (b) abandon the equipment; (c) alter the Equipment; (d) permit the
Equipment to be removed from the equipment location specified above (herein
"Equipment Location"), or any subsequent location, without the prior written
consent of Lessor, which consent shall not be unreasonably withheld; (e)
without prior written consent of Lessor, allow the Equipment or any item of it,
to be affixed to realty in such manner as to cause the Equipment or such item
to become a fixture; or (f) without the prior written consent of Lessor, affix
or install any accessory, equipment or device on any item of Equipment if such
(i) is not readily removable, or (ii) will impair the originally intended
function or use of such Equipment. All additions, repairs, parts, accessories,
equipment and devices attached or affixed to any item of Equipment which are
not readily removable, shall become the property of Lessor and part of the
Equipment for all purposes hereof. Lessor shall have the right from time to
time during normal business hours to enter upon the Equipment Location or
elsewhere for the purpose of confirming the existence, condition or proper
maintenance of the Equipment.
8. RISK OF LOSS; INSURANCE: (a) Lessee agrees that it shall bear all risk of
loss, damage to or destruction of the Equipment. Lessee shall give Lessor
prompt
Page 2 of 4
<PAGE> 3
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, Lessee shall immediately place such item(s) in good repair (with no
abatement of Lease payments), with the proceeds of any insurance recovery
applied to the cost of such repair. Should any item(s) of Equipment become
lost, stolen, destroyed, worn out, damaged beyond repair, condemned,
confiscated, seized or requisitioned (herein "Event of Loss"), Lessee shall, at
the option of Lessor, either (i) replace the same with like equipment in good
repair (with no abatement of Lease Payments), or (ii) pay to Lessor on the
lease payment date immediately following such Event of Loss, any pro rata
portion relating to such item(s) of the sum of (A) the remaining Lease payments
for the balance of the Lease Term and (B) the purchase option price specified
above (herein "Purchase Option Price"), such sum discounted at the per annum
rate implicit in the Lease assuming exercise by Lessee of any purchase option
contained herein (herein "Lease Rate"), plus any other payments due from Lessee
to Lessor with respect to such item(s), whereupon the Lease shall terminate as
to such item(s) and Lessor shall adjust the remaining Lease payments and
Purchase Option Price accordingly.
(b) For the full Lease Term, Lessee, at its expense, shall maintain
comprehensive general liability insurance, and "fire and allied perils" and
"all risks" property insurance with respect to the Equipment (as primary
insurance for Lessee and Lessor), both in such amounts as Lessor shall require,
except that such property insurance shall be in an amount at least equal to the
greater of the full replacement value of the Equipment or the sum of the
remaining Lease Payments for the balance of the Lease Term, and such insurance
shall be placed with carriers acceptable to Lessor. The liability insurance
policy shall name Lessor as additional insured and the property insurance
policy shall name Lessor as loss payee to the extent its interest 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 Lessor. Lessee
irrevocably appoints Lessor its agent and attorney-in-fact for the purposes of
adjusting and settling any property insurance hereunder and endorsing in
Lessee's name any instruments or payments received in respect thereof. Lessee
shall furnish to Lessor within thirty (30) days of delivery of the Equipment, a
certificate of insurance that such coverage is in effect, however, Lessor shall
be under no duty either to ascertain the existence of or to examine such
insurance policies or to advise Lessee in the event that such insurance
coverage does not comply with the requirements hereof.
9. DEFAULT AND REMEDIES: (a) Any of the following shall constitute a default
by Lessee hereunder (herein "Default"): (i) failure by Lessee to pay any
amounts hereunder when due and such remains unremedied for a period of ten (10)
days from the due date; or (ii) failure by Lessee to comply with any provisions
or perform any of its obligations arising under the Lease or under any other
documents or agreements related hereto and such remains unremedied by Lessee
for a period of twenty (20) days; or (iii) any representations or warranties
made or given by Lessee in connection with the Lease 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 Lessee; or (v) commencement of any insolvency,
bankruptcy or similar proceedings by or against Lessee or any guarantor of any
of Lessee's obligations hereunder (herein "Guarantor"), including any
assignment by Lessee or any Guarantor for the benefit of creditors, and in the
case of any such involuntary proceedings, such is not missed within thirty (30)
days of institution; or the inability of Lessee to generally pay its debts as
they become due; or (vi) any act of Lessee which imperils the value of the
Equipment or the prospect of full performance of Lessee's obligations
hereunder, including but not limited to the liquidation or dissolution of
Lessee or the commencement of any acts relative thereto, or without the prior
written consent of Lessor, any sale or other disposition of all or
substantially all of the assets of Lessee, any merger or consolidation of
Lessee unless Lessee is the surviving entity, or the cessation of business by
Lessee; or (vii) a default by Lessee under any other agreement or note with
Lessor or any assignee of the Lease; or (viii) the death or dissolution of
Lessee or of any Guarantor, the withdrawal of any partner of Lessee if Lessee
is a partnership, or the inability of Lessee or of any Guarantor hereunder to
perform any of the obligations contained herein or in any applicable guaranty.
(b) Upon any Default, Lessor may exercise any one or more of the following
remedies (which remedies shall be cumulative to the extent permitted by law):
(i) terminate the Lease; (ii) declare all remaining Lease Payments for the
balance of the Lease Term discounted at the Lease Rate, plus all other amounts
due from Lessee hereunder immediately due and payable in full, whereupon such
shall become immediately due and payable; (iii) secure peaceable repossession
and removal of the Equipment by Lessor or its agent without judicial process;
(iv) demand and Lessee shall return the Equipment to Lessor in accordance with
Section 11 hereof; (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 Lessor may deem advisable and Lessor
may be the purchaser at any such sale; (vi) demand and Lessee shall pay all
expenses in connection with 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.
In the event that Lessor disposes of the Equipment pursuant to this Section
9(b), Lessee shall be liable for any deficiency remaining after such
disposition and application of the resulting net proceeds, less the Purchase
Option Price discounted at the Lease Rate, to Lessee's obligations hereunder
in the order of application as Lessor shall elect.
10. PURCHASE OPTION: Provided no Default has occurred and is continuing and
provided the Lease shall not have previously terminated, Lessee shall have the
option, exercisable by written notice to Lessor received by Lessor at least
ninety (90) but not more than one hundred eighty (180) days before the
expiration of the Lease term, to purchase on the day following the last day of
such Lease Term (herein "Purchase Date"), all but not less than all of the
Equipment subject to the Lease for the Purchase Option Price. Provided Lessee
has exercised such option, Lessee shall pay to Lessor on the Purchase Date the
aforementioned Purchase Option Price in cash, together with all sales and other
taxes applicable to the transfer of the Equipment and any other amounts as may
then be due and owing hereunder, whereupon Lessor shall transfer its interest
in the equipment to Lessee without recourse or warranty, on an as-is, where-is
basis. In the event that Lessee fails to exercise such purchase option, Lessee
shall (upon termination of the Lease) return the Equipment to Lessor on demand,
in accordance with the provisions of Section 11 hereof.
11. RETURN OF EQUIPMENT: Upon demand of Lessor pursuant to Section 9 or 10
hereof, Lessee, at its own risk and expense, shall immediately return the
Equipment to Lessor, packed for shipment in accordance with manufacturer's
specifications, in good working order and eligible for manufacturer's
maintenance, if available, freight prepaid and insured, to such location
within the continental United States as Lessor shall designate.
12. LESSEE REPRESENTATIONS AND ASSURANCES: Lessee represents: that it is duly
organized and validly existing under the laws of its state of organization and
by consummation of this transaction, Lessee is not in violation of any
governmental statute or regulation, nor will consummation of this transaction
cause any breach, default or violation of the organizational or charter
documents or any judgment, decree or agreement, all as may apply to Lessee;
that this transaction was duly authorized by all appropriate action by Lessee;
and the Lease is enforceable in accordance with its terms. Lessee shall
promptly execute and deliver to Lessor such further documents and take such
further action as Lessor may reasonably request in order to more effectively
carry out the intent and purpose of the Lease. Lessee shall provide Lessor
with audited and other financial statements and such other information as
Lessor shall reasonably request from time to time.
13. NOTICES; CHANGES; SECURITY: 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 specified above (or to such other address as such
party shall have designated by proper notice) or (b) by personal delivery.
Lessee consents to service of process by certified mail at its address above
(or to such other address as Lessee shall have designated by proper notice) in
connection with any legal action brought by Lessor. Lessee authorized Lessor
to fill in descriptive material herein (including serial numbers) and to
correct any patent errors hereunder. In the event the Lease is deemed to be
intended as security, Lessor shall have, to secure all payments and all other
obligations of Lessee to Lessor hereunder, a security interest in the Equipment
together with all accessions, attachments, replacements, substitutions,
modifications and additions thereto, now or hereafter acquired, and all
proceeds thereof (including insurance proceeds). Lessee shall execute and
authorizes Lessor to file with such authorities and at such locations as Lessor
may deem appropriate, Uniform Commercial Code financing statements relating to
the Equipment and/or the Lease, and Lessee agrees to reimburse Lessor upon
demand for all costs incurred relative thereto. In addition, Lessee hereby
irrevocably appoints Lessor its agent and attorney-in-fact to execute in the
name of Lessee and file any Uniform Commercial Code financing statements or
security agreements
Page 3 of 4
<PAGE> 4
with respect to the Equipment in any place Lessor deems necessary. Lessee also
agrees that an original or a photocopy of the Lease (including any addenda,
attachments and amendments hereto) may be filed by Lessor as a Uniform
Commercial Code financing statement. Lessee agrees to immediately notify
Lessor in writing of any change in Lessee's name or address, identity,
corporate structure, social security or taxpayer identification number as
applicable, or discontinuance of any of its place(s) of business.
14. ASSIGNMENT BY LESSOR: LESSOR MAY ASSIGN OR TRANSFER ALL OR ANY INTEREST OF
LESSOR IN THE LEASE OR THE EQUIPMENT WITHOUT NOTICE TO LESSEE. UPON NOTICE OF
SUCH ASSIGNMENT LESSEE AGREES TO PAY DIRECTLY TO ASSIGNEE WITHOUT ABATEMENT,
DEDUCTION OR SETOFF ALL AMOUNTS WHICH BECOME DUE HEREUNDER AND FURTHER AGREES
THAT IT WILL NOT ASSERT AGAINST ASSIGNEE ANY DEFENSE, COUNTERCLAIM OR SETOFF
FOR ANY REASON WHATSOEVER IN ANY ACTION FOR PAYMENT OR POSSESSION BROUGHT BY
ASSIGNEE. Upon any such assignment, such assignee (herein "Assignee") shall
have and be entitled to any and all rights and remedies of Lessor hereunder,
all references in the Lease to Lessor shall include Assignee except that
Assignee shall not be chargeable with any obligations or liabilities of Lessor
hereunder. Lessee acknowledges that any assignment or transfer by Lessor shall
not materially change Lessee's duties or obligations under the Lease nor
materially increase the burdens or risks imposed on Lessee. Lessee shall (if
requested by Lessor) acknowledge in writing any assignments (including any
material terms of the Lease) in a form supplied by Lessor.
15. MISCELLANEOUS: THE LEASE CONTAINS THE COMPLETE AGREEMENT OF THE PARTIES
WITH RESPECT TO ITS SUBJECT MATTER AND SUPERSEDES AND REPLACES ANY PREVIOUSLY
MADE PROPOSALS, REPRESENTATIONS, WARRANTIES OR AGREEMENTS WITH RESPECT THERETO.
LESSEE SHALL NOT ASSIGN OR IN ANY WAY DISPOSE OF ALL OR ANY PART OF ITS RIGHTS
OR OBLIGATIONS UNDER THE LEASE OR ENTER INTO ANY SUBLEASE OF ALL OR ANY PART OF
THE EQUIPMENT WITHOUT PRIOR WRITTEN CONSENT OF LESSOR. The Lease 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 LEASE, OR THE TRANSACTION CONTEMPLATED HEREBY. 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 Lessor of any right, remedy, or power hereunder, shall operate
as a waiver thereof or preclude Lessor from exercising any other right, remedy
or power hereunder. Any provision of the Lease 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. No action, regardless of form, arising out of the Lease may
be brought by Lessee more than two (2) years after the cause of action has
accrued. The representations, warranties, obligations, and indemnities of
Lessee under the Lease shall survive the termination of the Lease to the extent
required for their full observance and performance. The obligations of each
co-maker (if any) of the Lease shall be primary, joint and several. In the
event that Lessee fails to meet any of its obligations hereunder, Lessor may at
its option satisfy such obligation and Lessee shall reimburse Lessor on demand
therefor. In the event that legal or other action is required to enforce
Lessor's rights under the Lease (including the exercise of remedies under
Section 9 hereof), Lessee agrees to reimburse Lessor on demand for its
reasonable attorneys' fees and its other related costs and expenses. In
addition, notwithstanding any applicable state laws to the contrary, Lessee
agrees to reimburse Lessor for all reasonable attorneys' fees incurred by it
incident to any action or proceeding involving the Lessee brought pursuant to
the Bankruptcy Code, as amended, which are allowable under Section 506(b)
thereof. The captions in the Lease are for convenience only and shall not
define or limit any of the terms hereof. THE LEASE SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
<PAGE> 1
Exhibit 10.36
PROMISSORY NOTE
<TABLE>
<CAPTION>
Principal Loan Date Maturity Loan No Call Collateral Account Officer Initials
$216,000.00 09-09-1996 09-06-2000 133802163 RS
References in the shaded area are for Lender's use only and do not limit the applicability of this document to
any particular loan or item.
<SC> <C> <C> <C>
Borrower: Brandon Diagnostic Center Ltd. Lender: South Hillsborough Community Bank
747 W. Brandon Blvd. Main Office
Brandon, FL 33571 6542 US HWY 41 N
PO BOX 3830
Apollo Beach, FL 33572
====================================================================================================================================
Principal Amount: $216,000.00 Initial Rate: 9.250% Date of Note: September 9, 1996
</TABLE>
PROMISE TO PAY. Brandon Diagnostic Center Ltd. ("Borrower") promises to pay to
SOUTH HILLSBOROUGH COMMUNITY BANK ("Lender"), or order, in lawful money of the
United States of America, the principal amount of Two Hundred Sixteen Thousand &
00/100 Dollars ($216,000.00), together with interest on the unpaid principal
balance from September 9, 1996, until paid in full. The interest rate will not
increase above 18.000%.
PAYMENT. Subject to any payment changes resulting from changes in the index,
Borrower will pay this loan in 47 principal payments of $4,500.00 each and one
final principal and interest payment of $4,534.69. Borrower's first principal
payment is due October 6, 1996, and all subsequent principal payments are due on
the same day of each month after that. In addition, Borrower will pay regular
monthly payments of all accrued unpaid interest due as of each payment date.
Borrower's first interest payment is due October 6, 1996, and all subsequent
interest payments are due on the same day of each month after that. Borrower's
final payment due September 6, 2000, will be for all principal and accrued
interest not yet paid. Interest on this Note is computed on a 30/360 simple
interest basis; that is, with the exception of odd days in the first payment
period, monthly interest is calculated by applying the ratio of the annual
interest rate over a year of 360 days, multiplied by the outstanding principal
balance, multiplied by a month of 30 days. Interest for the odd days is
calculated on the basis of the actual days to the next full month and a
360-day year. Borrower will pay Lender at Lender's address shown above or at
such other place as Lender may designate in writing. Unless otherwise agreed
or required by applicable law, payments will be applied first to accrued
unpaid interest, then to principal, and any remaining amount to any unpaid
collection costs and late charges.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change
from time to time based on changes in an index which is Lender's Prime Rate (the
"Index"). This is the rate Lender charges, or would charge, on 90-day unsecured
loans to the most creditworthy corporate customers. This rate may or may not be
the lowest rate available from Lender at any given time. Lender will tell
Borrower the current Index rate upon Borrower's request. Borrower understands
that Lender may make loans based on other rates as well. The interest rate
change will not occur more often than each YEAR. The index currently is 8.250%
per annum. The interest rate to be applied to the unpaid principal balance of
this Note will be at a rate of 1.000 percentage point over the index, adjusted
if necessary for the maximum rate limitation described below, resulting in an
initial rate of 9.250% per annum. Notwithstanding any other provision of this
Note, the variable interest rate or rates provided for in this Note will be
subject to the following maximum rate. NOTICE: Under no circumstances will the
effective rate of interest on this Note be more than (except for any higher
default rate shown below) the lesser of 18.000% per annum or the maximum rate
allowed by applicable law.
PREPAYMENT; MINIMUM INTEREST CHARGE. Borrower agrees that all loan fees and
other prepaid finance charges are earned fully as of the date of the loan and
will not be subject to refund upon early payment (whether voluntary or as a
result of default), except as otherwise required by law. In any event, even
upon full prepayment of this Note, Borrower understands that Lender is entitled
to a minimum interest charge of $10.00. Other than Borrower's obligation to pay
any minimum interest charge, Borrower may pay without penalty all or a portion
of the amount owed earlier than it is due. Early payments will not, unless
agreed to by Lender in writing, relieve Borrower of Borrower's obligation to
continue to make payments under the payment schedule. Rather, they will
reduce the principal balance due and may result in Borrower's making fewer
payments.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged
5.000% of the regularly scheduled payment.
DEFAULT. Borrower will be in default if any of the following happens: (a)
Borrower fails to make any payment when due. (b) Borrower breaks any promise
Borrower has made to Lender, or Borrower fails to comply with or to perform when
due any other term, obligation, covenant, or condition contained in this Note or
any agreement related to this Note, or in any other agreement or loan Borrower
has with Lender. (c) Borrower defaults under any loan, extension of credit,
security agreement, purchase or sales agreement, or any other agreement, in
favor of any other creditor or person that may materially affect any of
Borrower's property or Borrower's ability to repay this Note or perform
Borrower's obligations under this Note or any of the Related Documents. (d) Any
representation or statement made or furnished to Lender by Borrower or on
Borrower's behalf is false or misleading in any material respect either now or
at the time made or furnished. (e) Any partner dies or any of the partners or
Borrower becomes insolvent, a receiver is appointed for any part of Borrower's
property, Borrower makes an assignment for the benefit of creditors, or any
proceeding is commenced either by Borrower or against Borrower under any
bankruptcy or insolvency laws. (f) Any creditor tries to take any of Borrower's
property on or in which Lender has a lien or security interest. This includes a
garnishment of any of Borrower's accounts with Lender. (g) Any of the events
described in this default section occurs with respect to any general partner of
Borrower or any guarantor of this Note. (h) A material adverse change occurs in
Borrower's financial condition, or Lender believes the prospect of payment or
performance of the indebtedness is impaired. (i) Lender in good faith deems
itself insecure.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, without
notice, and then Borrower will pay that amount. Upon default, including failure
to pay upon final maturity, Lender, at its option, may also, if permitted under
applicable law, increase the variable interest rate on this Note to 18.000% per
annum, if and to the extent that the increase does not cause the interest rate
to exceed the maximum rate permitted by applicable law. Lender may hire or pay
someone else to help collect this Note if Borrower does not pay. Borrower also
will pay Lender the amount of these costs and expenses, which includes, subject
to any limits under applicable law, Lender's reasonable attorneys' fees and
Lender's legal expenses whether or not there is a lawsuit, including reasonable
attorneys' fees and legal expenses for bankruptcy proceedings (including efforts
to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. If not prohibited by applicable
law, Borrower also will pay any court costs, in addition to all other sums
provided by law. This Note has been delivered to Lender and accepted by Lender
in the State of Florida. If there is a lawsuit, Borrower agrees upon Lender's
request to submit to the jurisdiction of the courts of HILLSBOROUGH County, the
State of Florida. Lender and Borrower hereby waive the right to any jury trial
in any action, proceeding, or counterclaim brought by either Lender or Borrower
against the other. This Note shall be governed by and construed in accordance
with the laws of the State of Florida.
RIGHT OF SETOFF. Borrower grants to Lender a contractual possessory security
interest in, and hereby assigns, conveys, delivers, pledges, and transfers to
Lender all Borrower's right, title and interest in and to, Borrower's accounts
with Lender (whether checking, savings, or some other account), including
without limitation all accounts held jointly with someone else and all accounts
Borrower may open in the future, excluding however all IRA and Keogh accounts,
and all trust accounts for which the grant of a security interest would be
prohibited by law. Borrower authorizes Lender, to the extent permitted by
applicable law, to charge or setoff all sums owing on this Note against any and
all such accounts.
GARNISHMENT. Borrower consents to the issuance of a continuing writ of
garnishment or attachment against Borrower's disposable earnings, in accordance
with Section 222.11, Florida Statutes, in order to satisfy, in whole or in part,
any money judgment entered in favor of Lender.
COLLATERAL. This Note is secured by a Security agreement for Medical Equipment,
from Brandon Diagnostic Center Ltd. to South Hillsborough Community Bank dated
September 6, 1996.
GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact will
not affect the rest of the Note. Borrower does not agree or intend to pay, and
Lender does not agree or intend to contract for, charge, collect, take, reserve
or receive (collectively referred to herein as "charge or collect"), any amount
in the nature of interest or in the nature of a fee for this loan, which would
in any way or event (including demand, prepayment, or acceleration) cause Lender
to charge or collect more for this loan than the maximum Lender would be
permitted to charge or collect by federal law or the law of the State of Florida
(as applicable). Any such excess interest or unauthorized fee shall, instead of
anything stated to the contrary, be applied first to reduce the principal
balance of this loan, and when the principal has been paid in full, be refunded
to Borrower. Lender may delay or forgo enforcing any of its rights or remedies
under this Note without losing them. Borrower and any other person who signs,
guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, protest and notice of dishonor. Upon any
change in the terms of this Note, and unless otherwise expressly stated in
writing, no party who signs this Note, whether as maker, guarantor,
accommodation maker or endorser, shall be released from liability. All such
parties agree that Lender may renew or extend (repeatedly and for any length of
time) this loan, or release any party, partner, or guarantor or collateral; or
impair, fail to realize upon or protect Lender's security interest in the
collateral; and take any other action deemed necessary by Lender without the
consent of or notice to anyone. All such parties also agree that Lender may
modify this loan without the consent of or notice to anyone other than the party
with whom the modification is made.
<PAGE> 2
09-06-1996 PROMISSORY NOTE Page 2
Loan No 133802163 (continued)
================================================================================
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO
THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE NOTE.
BORROWER:
BRANDON DIAGNOSTIC CENTER LTD.
BY: /s/ CURTIS L. ALLISTON (SEAL)
-----------------------------------------------------------
Alpha Associates, Inc., General Partner, Curtis L. Alliston
================================================================================
Variable Rate, Principal + Interest
<PAGE> 3
BUSINESS LOAN AGREEMENT
<TABLE>
<CAPTION>
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
<S> <C> <C> <C> <C> <C> <C> <C> <C>
$216,000.00 09-09-1996 09-06-2000 133802163 RS
References in the shaded area are for Lender's use only and do not limit the applicability of the document to any particular loan or
item.
<CAPTION>
<S> <C> <C>
Borrower: Brandon Diagnostic Center Ltd. Lender: SOUTH HILLSBOROUGH COMMUNITY BANK
747 W. Brandon Blvd. MAIN OFFICE
Brandon, FL 33571 6542 US HWY 41 N
PO BOX 3830
APOLLO BEACH, FL 33572
</TABLE>
THIS BUSINESS LOAN AGREEMENT between Brandon Diagnostic Center Ltd. ("Borrower")
and SOUTH HILLSBOROUGH COMMUNITY BANK ("Lender") is made and executed on the
following terms and conditions. Borrower has received prior commercial loans
from Lender or has applied to Lender for a commercial loan or loans and other
financial accommodations, including those which may be described on any exhibit
or schedule attached to this Agreement. All such loans and financial
accommodations, together with all future loans and financial accommodations from
Lender to Borrower, are referred to in this Agreement individually as the "Loan"
and collectively as the "Loans." Borrower understands and agrees that: (a) in
granting, renewing, or extending any Loan, Lender is relying upon Borrower's
representations, warranties, and agreements, as set forth in this Agreement; (b)
the granting, renewing, or extending of any Loan by Lender at all times shall
be subject to Lender's sole judgment and discretion; and (c) all such Loans
shall be and shall remain subject to the following terms and conditions of this
Agreement.
TERM. This Agreement shall be effective as of September 6, 1996, and shall
continue thereafter until all Indebtedness of Borrower to Lender has been
performed in full and the parties terminate this Agreement in writing.
DEFINITIONS. The following words shall have the following meanings when used in
this Agreement. Terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code. All
references to dollar amounts shall mean amounts in lawful money of the United
States of America.
AGREEMENT. The word "Agreement" means this Business Loan Agreement, as this
Business Loan Agreement may be amended or modified from time to time,
together with all exhibits and schedules attached to this Business Loan
Agreement from time to time.
BORROWER. The word "Borrower" means Brandon Diagnostic Center Ltd. The
word "Borrower" also includes, as applicable, all subsidiaries and
affiliates of Borrower as provided below in the paragraph titled
"Subsidiaries and Affiliates."
CERCLA. The word "CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
COLLATERAL. The word "Collateral" means and includes without limitation all
property and assets granted as collateral security for a Loan, whether real
or personal property, whether granted directly or indirectly, whether
granted now or in the future, and whether granted in the form of a security
interest, mortgage, deed of trust, assignment, pledge, chattel mortgage,
chattel trust, factor's lien, equipment trust, conditional sale, trust
receipt, lien, charge, lien or little retention contract, lease or
consignment intended as a security device, or any other security or lien
interest whatsoever, whether created by law, contract, or otherwise.
ERISA. The word "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended.
EVENT OF DEFAULT. The words "Event of Default" mean and include without
limitation any of the Events of Default set forth below in the section
titled "EVENTS OF DEFAULT."
GRANTOR. The word "Grantor" means and includes without limitation each and
all of the persons or entities granting a Security Interest in any
Collateral for the indebtedness, including without limitation all Borrowers
granting such a Security Interest.
GUARANTOR. The word "Guarantor" means and includes without limitation each
and all of the guarantors, sureties, and accommodation parties in
connection with any indebtedness.
INDEBTEDNESS. The word "Indebtedness" means and includes without limitation
all Loans, together with all other obligations, debts and liabilities of
Borrower to Lender, or any one or more of them, as well as all claims by
Lender against Borrower, or any one or more of them; whether now or
hereafter existing, voluntary or involuntary, due or not due, absolute or
contingent, liquidated or unliquidated; whether Borrower may be liable
individually or jointly with others; whether Borrower may be obligated as a
guarantor, surety, or otherwise; whether recovery upon such indebtedness may
be or hereafter may become barred by any statute of limitations; and
whether such indebtedness may be or hereafter may become otherwise
unenforceable.
LENDER. The word "Lender" means SOUTH HILLSBOROUGH COMMUNITY BANK, its
successors and assigns.
LOAN. The word "Loan" or "Loans" means and includes without limitation any
and all commercial loans and financial accommodations from Lender to
Borrower, whether now or hereafter existing, and however evidenced,
including without limitation those loans and financial accommodations
described herein or described on any exhibit or schedule attached to this
Agreement from time to time.
NOTE. The word "Note" means and includes without limitation Borrower's
promissory note or notes, if any, evidencing Borrower's Loan obligations in
favor of Lender, as well as any substitute, replacement or refinancing note
or notes therefor.
PERMITTED LIENS. The words "Permitted Liens" mean: (a) liens and security
interests securing indebtedness owed by Borrower to Lender; (b) liens for
taxes, assessments, or similar charges either not yet due or being
contested in good faith; (c) liens of materialmen, mechanics, warehousemen,
or carriers, or other like liens arising in the ordinary course of business
and securing obligations which are not yet delinquent; (d) purchase money
liens or purchase money security interests upon or in any property acquired
or held by Borrower in the ordinary course of business to secure
indebtedness outstanding on the date of this Agreement or permitted to be
incurred under the paragraph of this Agreement titled "Indebtedness and
Liens"; (e) liens and security interests which, as of the date of this
Agreement, have been disclosed to and approved by the Lender in writing;
and (f) those liens and security interests which in the aggregate
constitute an immaterial and insignificant monetary amount with respect
to the net value of Borrower's assets.
RELATED DOCUMENTS. The words "Related Documents" mean and include without
limitation all promissory notes, credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgages, deeds
of trust, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.
SECURITY AGREEMENT. The words "Security Agreement" mean and include
without limitation any agreements, promises, covenants, arrangements,
understandings or other agreements, whether created by law, contract, or
otherwise, evidencing, governing, representing, or creating a Security
Interest.
SECURITY INTEREST. The words "Security Interest" mean and include without
limitation any type of collateral security, whether in the form of a lien,
charge, mortgage, deed of trust, assignment, pledge, chattel mortgage,
chattel trust, factor's lien, equipment trust, conditional sale, trust
receipt, lien or title retention contract, lease or consignment intended as
a security device, or any other security or lien interest whatsoever,
whether created by law, contract, or otherwise.
SARA. The word "SARA" means the Superfund Amendments and Reauthorization
Act of 1986 as now or hereafter amended.
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's obligation to make the Initial
Loan Advance and each subsequent Loan Advance under this Agreement shall be
subject to the fulfillment to Lender's satisfaction of all of the conditions
set forth in this Agreement and in the Related Documents.
LOAN DOCUMENTS. Borrower shall provide to Lender in form satisfactory to
Lender the following documents for the Loan: (a) the Note, (b) Security
Agreements granting to Lender security interests in the Collateral, (c)
Financing Statements perfecting Lender's Security Interests; (d) evidence
of insurance as required below; and (e) any other documents required under
this Agreement or by Lender or its counsel, including without limitation any
guaranties described below.
BORROWER'S AUTHORIZATION. Borrower shall have provided in form and
substance satisfactory to Lender properly certified resolutions, duly
authorizing the execution and delivery of this Agreement, the Note and the
Related Documents, and such other authorizations and other documents and
instruments as Lender or its counsel, in their sole discretion, may
require.
PAYMENT OF FEES AND EXPENSES. Borrower shall have paid to Lender all fees,
charges, and other expenses which are then due and payable as specified in
this Agreement or any Related Document.
REPRESENTATIONS AND WARRANTIES. The representations and warranties set
forth in this Agreement, in the Related Documents, and in any document or
certificate delivered to Lender under this Agreement are true and correct.
NO EVENT OF DEFAULT. There shall not exist at the time of any advance a
condition which would constitute an Event of Default under this Agreement.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each
<PAGE> 4
09-06-1996 BUSINESS LOAN AGREEMENT PAGE 2
LOAN NO. 133802163 (CONTINUED)
disbursement of Loan proceeds, as of the date of any renewal, extension or
modification of any Loan, and at all times any indebtedness exists:
ORGANIZATION. Borrower is a partnership which is duly organized, validly
existing, and in good standing under the laws of the State of Florida and
is validly existing and in good standing in all states in which Borrower is
doing business.
AUTHORIZATION. The execution, delivery, and performance of this Agreement
and all Related Documents by Borrower, to the extent to be executed,
delivered or performed by Borrower, have been duly authorized by all
necessary action by Borrower; do not require the consent or approval of any
other person, regulatory authority or governmental body; and do not
conflict with, result in a violation of, or constitute a default under (a)
any provision of the partnership agreement, or any agreement or other
instrument binding upon Borrower or (b) any law, governmental regulation,
court decree, or order applicable to Borrower.
FINANCIAL INFORMATION. Each financial statement of Borrower supplied to
Lender truly and completely disclosed Borrower's financial condition as of
the date of the statement, and there has been no material adverse change in
Borrower's financial condition subsequent to the date of the most recent
financial statement supplied to Lender. Borrower has no material
contingent obligations except as disclosed in such financial statements.
LEGAL EFFECT. This Agreement constitutes, and any instrument or agreement
required hereunder to be given by Borrower when delivered will constitute,
legal, valid and binding obligations of Borrower enforceable against
Borrower in accordance with their respective forms.
PROPERTIES. Except as contemplated by this Agreement or as previously
disclosed in Borrower's financial statements or in writing to Lender and as
accepted by Lender, and except for property tax liens for taxes not
presently due and payable, Borrower owns and has good title to all of
Borrower's properties free and clear of all Security Interests, and has not
executed any security documents or financing statements relating to such
properties. All of Borrower's properties are filed in Borrower's legal
name, and Borrower has not used, or filed a financing statement under, any
other name for at least the last five (5) years.
HAZARDOUS SUBSTANCES. The terms "hazardous waste," "hazardous substance,"
"disposal," "release," and "threatened release," as used in this Agreement,
shall have the same meanings as set forth in the "CERCLA," "SARA," the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or
other applicable state or Federal laws, rules, or regulations adopted
pursuant to any of the foregoing. Except as disclosed to and acknowledged
by Lender in writing, Borrower represents and warrants that: (a) During
the period of Borrower's ownership of the properties, there has been no
use, generation, manufacture, storage, treatment, disposal, release or
threatened release of any hazardous waste or substance by any person on,
under, about or from any of the properties, (b) Borrower has no knowledge
of, or reason to believe that there has been (i) any use, generation,
manufacture, storage, treatment, disposal, release, or threatened release
of any hazardous waste or substance on, under, about or from the properties
by any prior owners or occupants of any of the properties, or (ii) any
actual or threatened litigation or claims of any kind by any person
relating to such matters, (c) Neither Borrower nor any tenant, contractor,
agent or other authorized user of any of the properties shall use,
generate, manufacture, store, treat, dispose of, or release any hazardous
waste or substance on, under, about or from any of the properties; and any
such activity shall be conducted in compliance with all applicable federal,
state, and local laws, regulations, and ordinances, including without
limitation those laws, regulations and ordinances described above.
Borrower authorizes Lender and its agents to enter upon the properties to
make such inspections and tests as Lender may deem appropriate to determine
compliance of the properties with this section of the Agreement. Any
inspections or tests made by Lender shall be at Borrower's expense
and for Lender's purposes only and shall not be construed to create any
responsibility or liability on the part of Lender to Borrower or to any
other person. The representations and warranties contained herein are
based on Borrower's due diligence in investigating the properties for
hazardous waste and hazardous substances. Borrower hereby (a) releases and
waives any future claims against Lender for indemnity or contribution in
the event Borrower becomes liable for cleanup or other costs under any such
laws, and (b) agrees to indemnify and hold harmless Lender against any and
all claims, losses, liabilities, damages, penalties, and expenses which
Lender may directly or indirectly sustain or suffer resulting from a breach
of this section of the Agreement or as a consequence of any use,
generation, manufacture, storage, disposal, release or threatened release
occurring prior to Borrower's ownership or interest in the properties,
whether or not the same was or should have been known to Borrower. The
provisions of this section of the Agreement, including the obligation to
indemnify, shall survive the payment of the indebtedness and the
termination or expiration of this Agreement and shall not be affected by
Lender's acquisition of any interest in any of the properties, whether by
foreclosure or otherwise.
LITIGATION AND CLAIMS. No litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) against
Borrower is pending or threatened, and no other event has occurred which may
materially adversely affect Borrower's financial condition or properties,
other than litigation, claims, or other events, if any, that have been
disclosed to and acknowledged by Lender in writing.
TAXES. To the best of Borrower's knowledge, all tax returns and reports of
Borrower that are or were required to be filed, have been filed, and as
taxes, assessments and other governmental charges have been paid in full,
except those presently being or to be contested by Borrower in good faith
in the ordinary course of business and for which adequate reserves have
been provided.
LIEN PRIORITY. Unless otherwise previously disclosed to Lender in writing,
Borrower has not entered into or granted any Security Agreements, or
permitted the filing or attachment of any Security Interests on or
affecting any of the Collateral directly or indirectly securing repayment of
Borrower's Loan and Note, that would be prior or that may in any way be
superior to Lender's Security interests and rights in and to such
Collateral.
BINDING EFFECT. This Agreement, the Note, all Security Agreements directly
or indirectly securing repayment of Borrower's Loan and Note and all of the
Related Documents are binding upon Borrower as well as upon Borrower's
successors, representatives and assigns, and are legally enforceable in
accordance with their respective terms.
COMMERCIAL PURPOSES. Borrower intends to use the Loan proceeds solely for
business or commercial related purposes.
EMPLOYEE BENEFIT PLANS. Each employee benefit plan as to which Borrower
may have any liability complies in all material respects with all applicable
requirements of law and regulations, and (i) no Reportable Event nor
Prohibited Transaction (as defined in ERISA) has occurred with respect to
any such plan, (ii) Borrower has not withdrawn from any such plan or
initiated steps to do so, (iii) no steps have been taken to terminate any
such plan, and (iv) there are no unfunded liabilities other than those
previously disclosed to Lender in writing.
LOCATION OF BORROWER'S OFFICES AND RECORDS. Borrower's place of business,
or Borrower's Chief executive office, if Borrower has more than one place
of business, is located at 747 W. Brandon Blvd., Brandon, FL 33511. Unless
Borrower has designated otherwise in writing this location is also the
office or offices where Borrower keeps its records concerning the
Collateral.
INFORMATION. All information heretofore or contemporaneously herewith
furnished by Borrower to Lender for the purposes of or in connection with
this Agreement or any transaction contemplated hereby is, and all
information hereafter furnished by or on behalf of Borrower to Lender will
be, true and accurate in every material respect on the date as of which
such information is dated or certified; and none of such information is or
will be incomplete by omitting to state any material fact necessary to
make such information not misleading.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Borrower understands and
agrees that Lender, without independent investigation, is relying upon the
above representations and warranties in making the above referenced Loan to
Borrower. Borrower further agrees that the foregoing representations and
warranties shall be continuing in nature and shall remain in full force and
effect until such time as Borrower's indebtedness shall be paid in full, or
until this Agreement shall be terminated in the manner provided above,
whichever is the last to occur.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, while
this Agreement is in effect, Borrower will:
LITIGATION. Promptly inform Lender in writing of (a) all material adverse
changes in Borrower's financial condition, and (b) all existing and all
threatened litigation, claims, investigations, administrative proceedings
or similar actions affecting Borrower or any Guarantor which could
materially affect the financial condition of Borrower or the financial
condition of any Guarantor.
FINANCIAL RECORDS. Maintain its books and records in accordance with
generally accepted accounting principles, applied on a consistent basis,
and permit Lender to examine and audit Borrower's books and records at all
reasonable times.
ADDITIONAL INFORMATION. Furnish such additional information and statements,
lists of assets and liabilities, agings of receivables and payables
inventory schedules, budgets, forecasts, tax returns, and other reports
with respect to Borrower's financial condition and business operations as
Lender may request from time to time.
INSURANCE. Maintain fire and other risk insurance, public liability
insurance, and such other insurance as Lender may require with respect to
Borrower's properties and operations, in form, amounts, coverages and with
insurance companies reasonably acceptable to Lender. Borrower, upon
request of Lender, will deliver to Lender from time to time the policies or
certificates of insurance in form satisfactory to Lender, including
stipulations that coverages will not be cancelled or diminished without at
least ten (10) days' prior written notice to Lender. Each insurance policy
also shall include an endorsement providing that coverage in favor of
Lender will not be impaired in any way by any act, omission or default of
Borrower or any other person. In connection with all policies covering
assets in which Lender holds or is offered a security interest for the
Loans, Borrower will provide Lender with such loss payable or other
endorsements as Lender may require.
INSURANCE REPORTS. Furnish to Lender, upon request of Lender, reports on
each existing insurance policy showing such information as Lender may
reasonably request, including without limitation the following: (a) the
name of the insurer; (b) the risks insured; (c) the amount of the policy;
(d) the properties insured; (e) the then current property values on the
basis of which insurance has been obtained, and the manner of determining
those values; and (f) the expiration date of the policy. In addition, upon
request of Lender (however not more often than annually). Borrower will
have an independent appraiser satisfactory to Lender determine, as
applicable, the actual cash value or replacement cost of any
<PAGE> 5
BUSINESS LOAN AGREEMENT
09-06-1996 (Continued) Page 3
Loan No 133802163
================================================================================
collateral. The cost of such appraisal shall be paid by Borrower.
GUARANTIES. Prior to disbursement of any Loan proceeds, furnish
executed guaranties of the Loans in favor of Lender, on Lender's forms,
and in the amounts and by the guarantors named below:
GUARANTORS AMOUNTS
National Diagnostics, Inc. 300,000.00
Alpha Associates, Inc. 300,000.00
OTHER AGREEMENTS. Comply with all terms and conditions of all other
agreements, whether now or hereafter existing, between Borrower and any
other party and notify Lender immediately in writing of any default in
connection with any other such agreements.
LOAN PROCEEDS. Use all Loan proceeds solely for Borrower's business
operations, unless specifically consented to the contrary by Lender in
writing.
TAXES, CHARGES, AND LIENS. Pay and discharge when due all of its
indebtedness and obligations, including without limitation all
assessments, taxes, governmental charges, levies and liens, of every
kind and nature, imposed upon Borrower of its properties, income, or
profits, prior to the date on which penalties would attach, and all
lawful claims that, if unpaid, might become a lien or charge upon any
of Borrower's properties, income, or profits. Provided however,
Borrower will not be required to pay and discharge any such assessment,
tax, charge, levy, lien or claims so long as (a) the legality
of the same shall be contested in good faith by appropriate proceedings,
and (b) Borrower shall have established on its books adequate reserves
with respect to such contested assessment, tax, charge, levy, lien, or
claim in accordance with generally accepted accounting practices.
Borrower, upon demand of Lender, will furnish to Lender evidence of
payment of the assessments, taxes, charges, levies, liens and claims
and will authorize the appropriate governmental official to deliver to
Lender at any time a written statement of any assessments, taxes,
charges, levies, liens and claims against (Borrower's properties,
income, or profits.
PERFORMANCE. Perform and comply with all terms, conditions, and
provisions set forth in this Agreement and in the Related Documents
in a timely manner, and promptly notify Lender if Borrower learns of the
occurrence of any event which constitutes an Event of Default under
this Agreement or under any of the Related Documents.
OPERATIONS. Maintain executive and management personnel with
substantially the same qualifications and experience as the present
executive and management personnel; provide written notice to Lender of
any change in executive and management personnel; conduct its business
affairs in a reasonable and prudent manner and in compliance with all
applicable federal, state and municipal laws, ordinances, rules and
regulations respecting its properties, charters, businesses and
operations, including without limitation, compliance with the Americans
With Disabilities Act and with all minimum funding standards and other
requirements of ERISA and other laws applicable to Borrower's employee
benefit plans.
INSPECTION. Permit employees or agents of Lender at any reasonable
time to inspect any and all Collateral for the Loan or Loans
and Borrower's other properties and to examine or audit Borrower's
books, accounts, and records and to make copies and memoranda of
Borrower's books, accounts, and records. If Borrower now or at any
time hereafter maintains any records (including without limitation
computer generated records and computer software programs for the
generation of such records) in the possession of a third party,
Borrower, upon request of Lender, shall notify such party to permit
Lender free access to such records at all reasonable times and to
provide Lender with copies of any records it may request, all at
Borrower's expense.
COMPLIANCE CERTIFICATE. Unless waived in writing by Lender, provide
Lender at least annually and at the time of each disbursement
of Loan proceeds with a certificate executed by Borrower's chief
financial officer, or other officer or person acceptable to Lender,
certifying that the representations and warranties set forth in this
Agreement are true and correct as of the date of the certificate and
further certifying that, as of the date of the certificate, no Event of
Default exists under this Agreement.
ENVIRONMENTAL COMPLIANCE AND REPORTS. Borrower shall comply in all
respects with all environmental protection federal, state and local
laws, statutes, regulations and ordinances; not cause or permit to
exist, as a result of an intentional or unintentional action or
omission on its part or on the part of any third party, on property
owned and/or occupied by Borrower, any environmental activity where
damage may result to the environment, unless such environmental
activity is pursuant to and in compliance with the conditions of a
permit issued by the appropriate federal, state or local governmental
authorities; shall furnish to Lender promptly and in any event within
thirty (30) days after receipt thereof a copy of any notice, summons,
lien, citation, directive, letter or other communication from any
governmental agency or instrumentality concerning any intentional or
unintentional action or omission on Borrower's part in connection with
any environmental activity whether or not there is damage to the
environment and/or other natural resources.
ADDITIONAL ASSURANCES. Make, execute and deliver to Lender such
promissory notes, mortgages, deeds of trust, security
agreements, financing statements, instruments, documents and other
agreements as Lender or its attorneys may reasonably request to
evidence and secure the Loans and to perfect all Security interests.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent
of Lender:
INDEBTEDNESS AND LIENS. (a) Except for trade debt incurred in the
normal course of business and indebtedness to Lender contemplated by
this Agreement, create, incur or assume indebtedness for borrowed
money, (b) except as allowed as a Permitted Lien, sell, transfer,
mortgage, assign, pledge, lease, grant a security interest in, or
encumber any of Borrower's assets, or (c) sell with recourse any
of Borrower's accounts, except to Lender.
CONTINUITY OF OPERATIONS. (a) Engage in any business activities
substantially different than those in which Borrower is presently
engaged, (b) cease operations, liquidate, merge, transfer, change
ownership, change its name, dissolve or transfer or sell Collateral out
of the ordinary course of business, or (c) make any distribution with
respect to any capital account, whether by reduction of capital or
otherwise.
LOANS, ACQUISITIONS AND GUARANTIES. (a) Loan, invest in or advance
money or assets, (b) incur any obligation as surety or guarantor other
than in the ordinary course of business.
CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to
Borrower, whether under this Agreement or under any other agreement, Lender
shall have no obligation to make Loan Advances or to disburse Loan proceeds if;
(a) Borrower or any Guarantor is in default under the terms of this Agreement
or any of the Related Documents or any other agreement that Borrower or any
Guarantor has with Lender; (b) Borrower or any Guarantor becomes insolvent,
files a petition in bankruptcy or similar proceedings, or is adjudged a
bankrupt; (c) there occurs a material adverse change in Borrower's financial
condition, in the financial condition of any Guarantor, or in the value of any
Collateral securing any Loan: (d) any Guarantor seeks, claims or otherwise
attempts to limit, modify or revoke such Guarantor's guaranty of the Loan or
any other loan with Lender; or (e) Lender in good faith deems itself insecure,
even though no Event of Default shall have occurred.
RIGHT OF SETOFF. Borrower grants to Lendor, a contractual possessory security
interest in, and hereby assigns, conveys, delivers, pledges, and transfers to
Lender all Borrower's right, title and interest in and to, Borrower's accounts
with Lender (whether checking, savings, or some other account), including
without limitation all accounts held jointly with someone else and all accounts
Borrower may open in the future, excluding however all IRA and Keogh accounts,
and all trust accounts for which the grant of a security interest would be
prohibited by law. Borrower authorizes Lender, to the extent permitted by
applicable law, to charge or setoff all sums owing on the indebtedness against
any and all such accounts.
EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default
under this Agreement:
DEFAULT ON INDEBTEDNESS. Future of Borrower to make any payment when
due on the Loans.
OTHER DEFAULTS. Failure of Borrower or any Grantor to comply with or to
perform when due any other term, obligation, covenant or condition
contained in this Agreement or in any of the Related Documents, or
failure of Borrower to comply with or to perform any other term,
obligation, covenant or condition contained in any other agreement
between Lender and Borrower.
DEFAULT IN FAVOR OF THIRD PARTIES. Should Borrower or any Grantor
default under any loan, extension of credit, security agreement,
purchase or sales agreement, or any other agreement, in favor of any
other creditor or person that may materially affect any of Borrower's
property or Borrower's or any Grantor's ability to repay the Loans or
perform their respective obligations under this Agreement or any of
the Related Documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Borrower or any Grantor under
this Agreement or the Related Documents is false or misleading in any
material respect at the time made or furnished, or becomes false or
misleading at any time thereafter.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related
Documents ceases to be in full force and effect (including failure
of any Security Agreement to create a valid and perfected Security
Interest) at any time and for any reason.
DEATH OR INSOLVENCY. The dissolution or termination of Borrower's
existence as a going business or the death of any partner, the
insolvency of Borrower, the appointment of a receiver for any part of
Borrower's property, any assignment for the benefit of creditors, any
type of creditor workout, or the commencement of any proceeding under
any bankruptcy or insolvency laws by or against Borrower.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
<PAGE> 6
09-06-1996 BUSINESS LOAN AGREEMENT Page 4
Loan No 133802163 (CONTINUED)
================================================================================
repossession or any other method, by any creditor of Borrower, any
creditor of any Grantor against any collateral securing the
indebtedness, or by any governmental agency. This includes a
garnishment, attachment, or levy on or of any of Borrower's deposit
accounts with Lender.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with
respect to any Guarantor of any of the Indebtedness or any Guarantor
dies or becomes incompetent, or revokes or disputes the validity of, or
liability under, any Guaranty of the Indebtedness.
EVENTS AFFECTING GENERAL PARTNER OF BORROWER. Any of the preceding
events occurs with respect to any general partner of Borrower or any
general partner dies or becomes incompetent.
CHANGE IN OWNERSHIP. The resignation or expulsion of any general
partner with an ownership interest of twenty-five percent (25%) or more
in Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's
financial condition, or Lender believes the prospect of payment or
performance of the indebtedness is impaired.
INSECURITY. Lender, in good faith, deems itself insecure.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except
where otherwise provided in this Agreement or the Related Documents, all
commitments and obligations of Lender under this Agreement or the Related
Documents or any other agreement immediately will terminate and, at Lender's
option, all indebtedness immediately will become due and payable, all without
notice of any kind to Borrower, except that in the case of an Event of Default
of the type described in the "Insolvency" subsection above, such acceleration
shall be automatic and not optional. In addition, Lender shall have all the
rights and remedies provided in the Related Documents or available at law, in
equity, or otherwise. Except as may be prohibited by applicable law, all of
Lender's rights and remedies shall be cumulative and may be exercised
singularly or concurrently. Election by Lender to pursue any remedy shall not
exclude pursuit of any other remedy, and an election to make expenditures or to
take action to perform an obligation of Borrower or of any Grantor shall not
affect Lender's right to declare a default and to exercise its rights and
remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as
to the matters set forth in this Agreement. No alteration of or
amendment to this Agreement shall be effective unless given in writing
and signed by the party or parties sought to be charged or bound by the
alternation or amendment.
APPLICABLE LAW. This Agreement has been delivered to Lender and
accepted by Lender in the State of Florida. If there is a lawsuit,
Borrower agrees upon Lender's request to submit to the jurisdiction of
the courts of HILLSBOROUGH County, the State of Florida. Lender and
Borrower hereby waive the right to any jury trial in any action,
proceeding, or counterclaim brought by either Lender or Borrower
against the other. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida.
CAPTION 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.
CONSENT TO LOAN PARTICIPATION. Borrower agrees and consents to
Lender's sale or transfer, whether now or later, of one or more
participation interests in the Loans to one or more purchasers, whether
related or unrelated to Lender, Lender may provide, without any
limitation whatsoever, to any one or more purchasers, or potential
purchasers, any information or knowledge Lender may have about Borrower
or about any other matter relating to the Loan, and Borrower hereby
waives any rights to privacy it may have with respect to such matters.
Borrower additionally waives any and all notices of sale of
participation interests, as well as all notices of any repurchase of
such participation interests. Borrower also agrees that the purchasers
of any such participation interests will be considered as the absolute
owners of such interests in the Loans and will have all the rights
granted under the participation agreement or agreements governing the
sale of such participation interests. Borrower further waives all
rights of offset or counterclaim that it may have now or later against
Lender or against any purchaser of such a participation interest and
unconditionally agrees that either Lender or such purchaser may enforce
Borrower's obligation under the Loans irrespective of the failure or
insolvency of any holder of any interest in the Loans. Borrower
further agrees that the purchaser of any such participation interests
may enforce its interests irrespective of any personal claims or
defenses that Borrower may have against Lender.
COSTS AND EXPENSES. Borrower agrees to pay upon demand all of Lender's
expenses, including without limitation reasonable attorneys' fees,
incurred in connection with the preparation, execution, enforcement,
modification and collection of this Agreement or in connection with the
Loans made pursuant to this Agreement. Lender may pay someone else to
help collect the Loans and to enforce this Agreement, and Borrower will
pay that amount. This includes, subject to any limits under applicable
law, Lender's reasonable attorneys' fees and Lender's legal expenses,
whether or not there is a lawsuit, including reasonable attorneys' fees
for bankruptcy proceedings (including efforts to modify or vacate any
automatic stay of injunction), appeals, and any anticipated
post-judgment collection services. Borrower also will pay any court
costs, in addition to all other sums provided by law.
NOTICES. All notices required to be given under this Agreement shall
be given in writing, may be sent by telefacsimile, and shall be
effective when actually delivered or when deposited with a nationally
recognized overnight courier or deposited in the United States mail,
first class, postage prepaid, addressed to the party to whom the notice
is to be given at the address shown above. Any party may change its
address for notices under this Agreement by giving formal written
notice to the other parties, specifying that the purpose of the notice
is to change the party's address. To the extent permitted by applicable
law, if there is more than one Borrower, notice to any Borrower will
constitute notice to all Borrowers. For notice purposes, Borrower will
keep Lender informed at all times of Borrower's current address(es).
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 persons or circumstances.
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.
SUBSIDIARIES AND AFFILIATES OF BORROWER. To the extent the context of
any provisions of this Agreement makes it appropriate, including
without limitation any representation, warranty or covenant, the word
"Borrower" as used herein shall include all subsidiaries and affiliates
of Borrower. Notwithstanding the foregoing however, under no
circumstances shall this Agreement be construed to require Lender to
make any Loan or other financial accommodation to any subsidiary or
affiliate of Borrower.
SUCCESSORS AND ASSIGNS. All covenants and agreements contained by or on
behalf of Borrower shall bind its successors and assigns and shall inure
to the benefit of Lender, its successors and assigns. Borrower shall
not, however, have the right to assign its rights under this Agreement
or any interest therein, without the prior written consent of Lender.
SURVIVAL. All warranties, representations, and covenants made by
Borrower in this Agreement or in any certificate or other instrument
delivered by Borrower to Lender under this Agreement shall be
considered to have been relied upon by Lender and will survive the
making of the Loan and delivery to Lender of the Related Documents,
regardless of any investigation made by Lender or on Lender's behalf.
TIME IS OF THE ESSENCE. 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 given 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, nor any course of dealing
between Lender and Borrower, or between Lender and any Grantor, shall
constitute a waiver of any Lender's rights or of any obligations of
Borrower or of any Grantor 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.
<PAGE> 7
09-06-1996 BUSINESS LOAN AGREEMENT Page 5
Loan No 133802163 (Continued)
================================================================================
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN
AGREEMENT, AND BORROWER AGREES TO ITS TERMS. THIS AGREEMENT IS DATED AS OF
SEPTEMBER 6, 1996.
BORROWER:
Brandon Diagnostic Center Ltd.
By: /s/ Curtis L. Alliston
-----------------------------------------------------------
Alpha Associates, Inc., General Partner, Curtis L. Alliston
LENDER:
SOUTH HILLSBOROUGH COMMUNITY BANK
By: /s/
-----------------------------------------------------------
Authorized Officer
================================================================================
<PAGE> 1
<TABLE>
Exhibit 10.37
<S> <C>
SIEMENS Siemens Credit Corporation
EQUIPMENT LEASE AGREEMENT
AGREEMENT #:100-0001142-000
--------------------------
================================================================================================================================
LESSOR: SIEMENS CREDIT CORPORATION PAYMENT SCHEDULE
991 U.S. Highway 22, Suite 300, Bridgewater, NJ 08807-2956 LEASE TERM NUMBER OF
Administrative Offices: (IN MONTHS) LEASE PAYMENTS
5300 Broken Sound Blvd. N.W., Boca Raton, FL 33487-3509 60 60
(800) 239-1043
LEASE PAYMENT AMOUNT: $ 1-3 = 0
LESSEE: National Diagnostics Riverside, Inc. 4-60 = $3,319.00
------------------------------------
(Full Legal Name of Lessee)
-------------------------------------------
PAYMENT PERIOD:
2345 Forbes Street [X] MONTHLY [ ] QUARTERLY OTHER --------
------------------------------------ PURCHASE OPTION PRICE: $1.00
(Address) -------------------------------------------
ADVANCE LEASE PAYMENTS:
Jacksonville, Fl. 32204 #($) 0 TOTALING: $ 0
------------------------------------ -------------- ---------
(City, County, State, Zip)
DUE DATE(S)
n/a
EQUIPMENT -------------------------------------------
LOCATION: Same as Above EQUIPMENT DESCRIPTION
-------------------------------------
(Address) Preowned Sireskop CX
SMS REF# 175204
-------------------------------------
(City, County, State, Zip) TOTAL EQUIPMENT COST: $ $ 140,000.00
6% FL Tax (Includes Local Tax) $8,450.00
SUPPLIER: Siemens Medical Systems, Inc. Total $ 148,450.00
------------------------------------- Interest Cost $50,690.00
TERMS AND CONDITIONS OF AGREEMENT
1. LEASE: Lessor hereby leases to Lessee and Lessee leases from Lessor, subject to the terms and conditions of this Equipment
Lease Agreement (herein "Lease"), the property described above (herein "Equipment"). Lessee acknowledges either that (a) Lessee
has reviewed and approved any written Supply Contract covering the Equipment purchase from the supplier identified above (herein
"Supplier"), or (b) Lessor has informed or advised Lessee, in writing, either previously or by the Lease, of the following: (i) the
identity of the Supplier, (ii) that Lessee may have rights under the Supply Contract and (iii) that Lessee may contact the Supplier
for a description of any such rights Lessee may have under the Supply Contract. LESSEE ACKNOWLEDGES THAT NEITHER LESSOR NOR THE
SUPPLIER IS AN AGENT OF THE OTHER AND NEITHER HAS AUTHORITY TO BIND THE OTHER.
(CONTINUED ON FOLLOWING PAGES)
====================================================================================================================================
IN WITNESS WHEREOF, the parties hereto have duly executed the Lease as of the dates set forth below. For all purposes hereof, the
date of the Lease shall be the date of Lessor's acceptance as set forth below. Lessee acknowledges that no amendment to the Lease
shall be effective unless in writing signed by the parties hereto.
BY EXECUTION HEREOF, THE SIGNER CERTIFIES THAT (S)HE HAS
READ THE ENTIRE LEASE, THAT LESSOR OR ITS REPRESENTATIVES
HAVE MADE NO AGREEMENTS OR REPRESENTATIONS EXCEPT AS SET
FORTH HEREIN AND THAT (S)HE IS DULY AUTHORIZED TO EXECUTE
THE LEASE ON BEHALF OF LESSEE.
ACCEPTED BY:
LESSOR: SIEMENS CREDIT CORPORATION LESSEE: National Diagnostics Riverside, Inc.
BY: /s/ E.J. Bielcc BY: /s/ C.L. Alliston
------------------------- ------------------------
(Authorized Signature) (Authorized Signature)
NAME: E J Bielcc NAME: Curtis L. Alliston
------------------------- ------------------------
(Print or Typed) (Print or Typed)
TITLE: AVP TITLE: President
------------------------- ------------------------
DATE: 9/11/96 DATE: 7-19-96
------------------------- ------------------------
</TABLE>
<PAGE> 2
2. TERM AND LEASE PAYMENTS: The Lease shall become effective at the time of
Lessor's acceptance of the Lease (by execution hereof) at its New Jersey
address set forth above, by an authorized representative of Lessor, and shall
continue in effect through the last day of the lease term specified above
(herein "Lease Term"). The Lease Term shall commence upon the earliest of (i)
completion of installation of the Equipment, (ii) first commercial use of the
Equipment, or (iii) sixty (60) days from shipment of the bulk of the Equipment
if completion of installation has been delayed due to causes beyond the
reasonable control of Lessor or Supplier; (herein "Commencement Date") and
thereupon Lessee agrees to execute and deliver to Lessor a delivery and
acceptance certificate in a form acceptable to Lessor. For said Lease Term,
Lessee agrees to pay to Lessor the number of lease payments specified above,
each in the amount specified above (herein "Lease Payments") for the payment
periods specified above (herein "Payment Periods"), including any Advance Lease
Payments specified above, with the first Lease Payment being due on the
Commencement Date, and the remaining Lease Payments being due on the same day
of each consecutive Payment Period thereafter for the duration of the Lease
Term. Any Advance Lease Payments will be applied to Lease Payment #1, then to
the remaining Lease Payments in reverse order. Lessee 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, whether such payments are due prior to or
after a Default (as hereinafter defined). All payments provided for herein
shall be payable at the office of Lessor set forth above, or at any other place
designated by Lessor. The Lease is a net lease and Lessee shall not be
entitled to any abatement of, reduction of, or setoff against Lease Payments
for any reason whatsoever. The Lease may not be terminated or cancelled for
any reason whatsoever, except as expressly provided herein. No amounts
hereunder may be prepaid.
3. DISCLAIMER OF WARRANTIES; LIMITATION OF REMEDY; LIMITATION OF LIABILITY:
Lessee has selected both the Equipment and the Supplier from whom at Lessee's
request Lessor agrees to purchase the Equipment. LESSEE ACKNOWLEDGES THAT
LESSOR HAS NO SPECIAL FAMILIARITY OR EXPERTISE WITH RESPECT TO THE EQUIPMENT.
LESSEE AGREES THAT THE EQUIPMENT LEASED HEREUNDER IS LEASED "AS IS" AND IS OF A
SIZE, DESIGN AND CAPACITY SELECTED BY LESSEE AND THAT LESSEE IS SATISFIED THAT
THE SAME IS SUITABLE FOR LESSEE'S PURPOSES, AND THAT EXCEPT AS MAY OTHERWISE BE
SPECIFICALLY PROVIDED IN THE LEASE, LESSOR HAS MADE NO REPRESENTATION OR
WARRANTY AS TO ANY MATTER WHATSOEVER. LESSOR DISCLAIMS, AND LESSEE HEREBY
EXPRESSLY WAIVES AS TO LESSOR, ALL WARRANTIES WITH RESPECT TO THE EQUIPMENT
INCLUDING BUT NOT LIMITED TO ALL EXPRESS OR IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, QUALITY, CAPACITY OR
WORKMANSHIP, ALL EXPRESS OR IMPLIED WARRANTIES AGAINST PATENT INFRINGEMENTS OR
DEFECTS, WHETHER HIDDEN OR APPARENT, AND ALL EXPRESS OR IMPLIED WARRANTIES WITH
RESPECT TO COMPLIANCE OF THE EQUIPMENT WITH THE REQUIREMENTS OF ANY LAW,
REGULATION, SPECIFICATION OR CONTRACT RELATIVE THERETO. IN NO EVENT SHALL
LESSOR BE LIABLE (INCLUDING WITHOUT LIMITATION, 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 LEASE OR THE
USE, PERFORMANCE OR MAINTENANCE OF THE EQUIPMENT. If the Equipment is not
properly installed, does not operate as represented or warrantied by the
Supplier, manufacturer and/or service company or is unsatisfactory for any
reason, Lessee shall make any claim on account thereof solely against the
Supplier, manufacturer and/or service company and shall, nevertheless, pay
Lessor all amounts payable under the Lease and shall not set up against
Lessee's obligations any such claims as a defense, counterclaim, deduction,
setoff or otherwise. For the Lease Term, for so long as no Default (as
hereinafter defined) has occurred and is continuing, Lessor assigns to Lessee
(to the extent permitted by law) any right Lessor may have against the
Supplier, manufacturer and/or service company to enforce, at Lessee's expense
(if any), any product warranties with respect to the Equipment, provided
however, Lessee shall indemnify and defend Lessor from and against all claims,
expenses, damages, losses and liabilities incurred or suffered by Lessor in
connection with any such action taken.
4. TITLE; IDENTIFICATION; PERSONAL PROPERTY: Lessee acknowledges that,
subject to the provisions of Section 10 hereof, title to the Equipment shall at
all times be vested in Lessor, and no right, title or interest in the Equipment
shall pass to Lessee other than, conditioned upon Lessee's compliance with and
fulfillment of the terms and conditions of the Lease, the right to possess and
use the Equipment for the full Lease Term. Lessee agrees not to sell, assign,
sublet, pledge, or otherwise encumber any interest in the Lease or the
Equipment and agrees to keep the same free from any lien, encumbrance, right of
distraint or any other claim which may be asserted by any third party. Lessee
shall immediately notify Lessor in writing of any tax or other liens attaching
to the Equipment. Lessor may require plates or markings to be affixed to or
placed on the Equipment indicating Lessor's interest. Lessor and Lessee hereby
confirm their intent that the Equipment always remain and be deemed personal
property even though said Equipment may hereafter become attached or affixed to
realty. Lessee shall obtain all such waivers as Lessor may reasonably require
to acknowledge Lessor's title to and assure Lessor's right to remove the
Equipment, including any landlord and mortgage waivers.
5. PAYMENT OF TAXES; GENERAL INDEMNIFICATION: Lessee shall pay promptly to
Lessor when due, all taxes, fees and assessments, including but not limited to,
all license and registration fees, sales, use, property, gross receipts,
excise, transaction, ad valorem, privilege, intangible, stamp or other taxes or
charges, together with any fines, penalties or interest thereon, now or
hereafter imposed by any governmental body, upon or with respect to, any of the
Equipment or the use, possession, ownership, leasing, operation, delivery or
return thereof (excluding however, franchise taxes and any taxes based on the
net income of Lessor). Any fees, taxes or other amounts paid by Lessor upon
failure of Lessee to make such payments set forth in this Section 5 shall be
payable by Lessee to Lessor upon demand by Lessor. Lessee agrees to indemnify
and hold Lessor harmless from and against any and all claims, losses, damages,
penalties, actions, suits and liabilities (including negligence, tort and
strict liability), together with all reasonable legal costs and expenses in
connection therewith, incurred by Lessor which result from, or relate to, the
manufacture, purchase, ownership, maintenance, modification, delivery,
installation, possession, condition, use, acceptance, rejection, operation or
return of the Equipment.
6. INSTALLATION AND DELIVERY: Lessee shall provide a suitable installation
environment for the Equipment as specified in the applicable manufacturer's or
Supplier's manuals, and except as otherwise specified by the manufacturer or
Supplier, furnish all labor required for unpacking and placing each item of
Equipment in the desired location. Lessee shall also be responsible for any
delivery, rigging, destination and installation charges charged by the
manufacturer or Supplier with respect to the Equipment.
7. OPERATION; USE; INSPECTION: For the full Lease Term, Lessee shall operate
the Equipment in accordance with all applicable manufacturer and Supplier
manuals or instructions by fully qualified and duly authorized personnel only,
in accordance with all applicable laws and regulations. The Equipment shall be
used for business purposes only and only for its normally intended purpose.
For said Lease Term, Lessee shall properly maintain the Equipment, or cause it
to be properly maintained, by a fully qualified service company, and shall
immediately notify Lessor in writing of the entity maintaining the Equipment
and of any change of such entity. Such maintenance shall be performed in
accordance with all requirements necessary to enforce all product warranty
rights. All operating and maintenance costs with respect to the Equipment
shall be borne by Lessee. Lessee shall not: (a) use, operate or locate the
Equipment in any area excluded from coverage by any insurance required under
the Lease; (b) abandon the equipment; (c) alter the Equipment; (d) permit the
Equipment to be removed from the equipment location specified above (herein
"Equipment Location"), or any subsequent location, without the prior written
consent of Lessor, which consent shall not be unreasonably withheld; (e)
without the prior written consent of Lessor, allow the Equipment or any item of
it, to be affixed to realty in such manner as to cause the Equipment or such
item to become a fixture; or (f) without the prior written consent of Lessor,
affix or install any accessory, equipment or device on any item of Equipment if
such (i) is not readily removable, or (ii) will impair the originally intended
function or use of such Equipment. All additions, repairs, parts, accessories,
equipment and devices attached or affixed to any item of Equipment which are
not readily removable, shall become the property of Lessor and part of the
Equipment for all purposes hereof. Lessor shall have the right from time to
time during normal business hours to enter upon the Equipment Location or
elsewhere for the purpose of confirming the existence, condition or proper
maintenance of the Equipment.
8. RISK OF LOSS; INSURANCE: (a) Lessee agrees that it shall bear all risk of
loss, damage to or destruction of the Equipment. Lessee shall give Lessor
prompt
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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, Lessee shall immediately place such item(s) in good repair (with no
abatement of Lease Payments), with the proceeds of any insurance recovery
applied to the cost of such repair. Should any item(s) of Equipment become
lost, stolen, destroyed, worn out, damaged beyond repair, condemned,
confiscated, seized or requisitioned (herein "Event of Loss"), Lessee shall, at
the option of Lessor, either (1) replace the same with like equipment in good
repair (with no abatement of Lease Payments), or (ii) pay to Lessor on the lease
payment date immediately following such Event of Loss, the pro rata portion
relating to such item(s) of the sum of (A) the remaining Lease Payments for the
balance of the Lease Term and (B) the purchase option price specified above
(herein "Purchase Option Price"), such sum discounted at the per annum rate
implicit in the Lease assuming exercise by Lessee of any purchase option
contained herein (herein "Lease Rate"), plus any other payments due from Lessee
to Lessor with respect to such item(s), whereupon the Lease shall terminate as
to such item(s) and Lessor shall adjust the remaining Lease Payments and
Purchase Option Price accordingly.
(b) For the full Lease Term, Lessee, at its expense, shall maintain
comprehensive general liability insurance, and "fire and allied perils" and
"all risks" property insurance with respect to the Equipment (as primary
insurance for Lessee and Lessor), both in such amounts as Lessor shall require,
except that such property insurance shall be in an amount at least equal to the
greater of the full replacement value of the Equipment or the sum of the
remaining Lease Payments for the balance of the Lease Term, and such insurance
shall be placed with carriers acceptable to Lessor. The liability insurance
policy shall name Lessor as additional insured and the property insurance
policy shall name Lessor as loss payee to the extent its interest 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 Lessor. Lessee
irrevocably appoints Lessor its agent and attorney-in-fact for the purposes of
adjusting and settling any property insurance hereunder and endorsing in
Lessee's name any instruments or payments received in respect thereof. Lessee
shall furnish to Lessor within thirty (30) days of delivery of the Equipment, a
certificate of insurance that such coverage is in effect, however, Lessor shall
be under no duty either to ascertain the existence of or to examine such
insurance policies or to advise Lessee in the event that such insurance
coverage does not comply with the requirements hereof.
9. DEFAULT AND REMEDIES: (a) Any of the following shall constitute a default
by Lessee hereunder (herein "Default"): (i) failure by Lessee to pay any
amounts hereunder when due and such remains unremedied for a period of ten (10)
days from the due date; or (ii) failure by Lessee to comply with any provisions
or perform any of its obligations arising under the Lease or under any other
documents or agreements related hereto and such remains unremedied by Lessee
for a period of twenty (20) days; or (iii) any representations or warranties
made or given by Lessee in connection with the Lease 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 Lessee; or (v) commencement of any insolvency,
bankruptcy or similar proceedings by or against Lessee or any guarantor of any
of Lessee's obligations hereunder (herein "Guarantor"), including any
assignment by Lessee 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 Lessee to generally pay its debts
as they become due; or (vi) any act of Lessee which imperils the value of the
Equipment or the prospect of full performance of Lessee's obligations
hereunder, including but not limited to the liquidation or dissolution of Lessee
or the commencement of any acts relative thereto, or without the prior written
consent of Lessor, any sale or other disposition of all or substantially all of
the assets of Lessee, or any merger or consolidation of Lessee unless Lessee is
the surviving entity, or the cessation of business by Lessee; or (vii) a
default by Lessee under any other agreement or note with Lessor or any assignee
of the Lease; or (viii) the death or dissolution of Lessee or of any Guarantor,
the withdrawal of any partner of Lessee if Lessee is a partnership, or the
inability of Lessee or of any Guarantor hereunder to perform any of the
obligations contained herein or in any applicable guaranty.
(b) Upon any Default, Lessor may exercise any one or more of the following
remedies (which remedies shall be cumulative to the extent permitted by law):
(i) terminate the Lease; (ii) declare all remaining Lease Payments for the
balance of the Lease Term discounted at the Lease Rate, plus all other amounts
due from Lessee hereunder immediately due and payable in full, whereupon such
shall become immediately due and payable; (iii) secure peaceable repossession
and removal of the Equipment by Lessor or its agent without judicial process;
(iv) demand and Lessee shall return the Equipment to Lessor in accordance with
Section 11 hereof; (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 Lessor may deem advisable and Lessor
may be the purchaser at any such sale; (vi) demand and Lessee 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. In the event that Lessor disposes of the Equipment pursuant to
this Section 9(b), Lessee shall be liable for any deficiency remaining after
such disposition and application of the resulting net proceeds, less the
Purchase Option Price discounted at the Lease Rate, to Lessee's obligations
hereunder in the order of application as Lessor shall elect.
10. PURCHASE OPTION: Provided no Default has occurred and is continuing and
provided the Lease shall not have previously terminated, Lessee shall have the
option, exercisable by written notice to lessor received by Lessor at least
ninety (90) but not more than one hundred eighty (180) days before the
expiration of the Lease Term, to purchase on the day following the last day of
such Lease Term (herein "Purchase Date"), all but not less than all of the
Equipment subject to the Lease for the Purchase Option Price. Provided Lessee
has exercised such option, Lessee shall pay to Lessor on the Purchase Date the
aforementioned Purchase Option Price in cash, together with all sales and other
taxes applicable to the transfer of the Equipment and any other amounts as may
then be due and owing hereunder, whereupon Lessor shall transfer its interest
in the equipment to Lessee without recourse or warranty, on an as-is, where-is
basis. In the event that Lessee fails to exercise such purchase option, Lessee
shall (upon termination of the Lease) return the Equipment to Lessor on demand,
in accordance with the provisions of Section 11 hereof.
11. RETURN OF EQUIPMENT: Upon demand of Lessor pursuant to Section 9 or 10
hereof, Lessee, at its own risk and expense, shall immediately return the
Equipment to Lessor, packed for shipment in accordance with manufacturer's
specifications, in good working order and eligible for manufacturer's
maintenance, if available, freight prepaid and insured, to such location within
the continental United States as Lessor shall designate.
12. LESSEE REPRESENTATIONS AND ASSURANCES: Lessee represents: that it is
duly organized and validly existing under the laws of its state of organization
and by consummation of this transaction, Lessee is not in violation of any
governmental statute or regulation, nor will consummation of this transaction
cause any breach, default or violation of the organizational or charter
documents or any judgment, decree or agreement, all as may apply to Lessee;
that this transaction was duly authorized by all appropriate action by Lessee;
and the Lease is enforceable in accordance with its terms. Lessee shall
promptly execute and deliver to Lessor such further documents and take such
further action as Lessor may reasonably request in order to more effectively
carry out the intent and purpose of the Lease. Lessee shall provide Lessor
with audited and other financial statements and such other information as
Lessor shall reasonably request from time to time.
13. NOTICES; CHANGES; SECURITY: 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 specified above (or to such other address as such
party shall have designated by proper notice) or (b) by personal delivery.
Lessee consents to service of process by certified mail at its address above
(or to such other address as Lessee shall have designated by proper notice) in
connection with any legal action brought by Lessor. Lessee authorized Lessor
to fill in descriptive material herein (including serial numbers) and to
correct any patent errors hereunder. In the event the Lease is deemed to be
intended as security, Lessor shall have, to secure all payments and all other
obligations of Lessee to Lessor hereunder, a security interest in the Equipment
together with all accessions, attachments, replacements, substitutions,
modifications and additions thereto, now or hereafter acquired, and all
proceeds thereof (including insurance proceeds). Lessee shall execute and
authorizes Lessor to file with such authorities and at such locations as Lessor
may deem appropriate, Uniform commercial Code financing statements relating to
the Equipment and/or the Lease, and Lessee agrees to reimburse Lessor upon
demand for all costs incurred relative thereto. In addition, Lessee hereby
irrevocably appoints Lessor its agent and attorney-in-fact to execute in the
name of Lessee and file any Uniform Commercial Code financing statements or
security agreements
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with respect to the Equipment in any place Lessor deems necessary. Lessee also
agrees that an original or a photocopy of the Lease (including any addenda,
attachments and amendments hereto) may be filed by Lessor as a Uniform
Commercial Code financing statement. Lessee agrees to immediately notify
Lessor in writing of any change in Lessee's name or address, identity,
corporate structure, social security or taxpayer identification number as
applicable, or discontinuance of any of its place(s) of business.
14. ASSIGNMENT BY LESSOR: LESSOR MAY ASSIGN OR TRANSFER ALL OR ANY INTEREST
OF LESSOR IN THE LEASE OR THE EQUIPMENT WITHOUT NOTICE TO LESSEE. UPON NOTICE
OF SUCH ASSIGNMENT LESSEE AGREES TO PAY DIRECTLY TO ASSIGNEE WITHOUT ABATEMENT,
DEDUCTION OR SETOFF ALL AMOUNTS WHICH BECOME DUE HEREUNDER AND FURTHER AGREES
THAT IT WILL NOT ASSERT AGAINST ASSIGNEE ANY DEFENSE, COUNTERCLAIM OR SETOFF
FOR ANY REASON WHATSOEVER IN ANY ACTION FOR PAYMENT OR POSSESSION BROUGHT BY
ASSIGNEE. Upon any such assignment, such assignee (herein "Assignee") shall
have and be entitled to any and all rights and remedies of Lessor hereunder,
all references in the Lease to Lessor shall include Assignee except that
Assignee shall not be chargeable with any obligations or liabilities of Lessor
hereunder. Lessee acknowledges that any assignment or transfer by Lessor shall
not materially change Lessee's duties or obligations under the Lease nor
materially increase the burdens or risks imposed on Lessee. Lessee shall (if
requested by Lessor) acknowledge in writing any assignments (including any
material terms of the Lease) in a form supplied by Lessor.
15. MISCELLANEOUS: THE LEASE CONTAINS THE COMPLETE AGREEMENT OF THE PARTIES
WITH RESPECT TO ITS SUBJECT MATTER AND SUPERSEDES AND REPLACES ANY PREVIOUSLY
MADE PROPOSALS, REPRESENTATIONS, WARRANTIES OR AGREEMENTS WITH RESPECT
THERETO. LESSEE SHALL NOT ASSIGN OR IN ANY WAY DISPOSE OF ALL OR ANY PART OF
ITS RIGHTS OR OBLIGATIONS UNDER THE LEASE OR ENTER INTO ANY SUBLEASE OF ALL OR
ANY PART OF THE EQUIPMENT WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. The
Lease 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 LEASE, OR THE TRANSACTION CONTEMPLATED HEREBY. 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 Lessor of any right, remedy, or power
hereunder, shall operate as a waiver thereof or preclude Lessor from exercising
any other right, remedy or power hereunder. Any provision of the Lease 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. No action, regardless of form,
arising out of the Lease may be brought by Lessee more than two (2) years after
the cause of action has accrued. The representations, warranties, obligations,
and indemnities of Lessee under the Lease shall survive the termination of the
Lease to the extent required for their full observance and performance. The
obligations of each co-maker (if any) of the Lease shall be primary, joint and
several. In the event that Lessee fails to meet any of its obligations
hereunder, Lessor may at its option satisfy such obligation and Lessee shall
reimburse Lessor on demand therefor. In the event that legal or other action
is required to enforce Lessor's rights under the Lease (including the exercise
of remedies under Section 9 hereof), Lessee agrees to reimburse Lessor on
demand for its reasonable attorneys' fees and its other related costs and
expenses. In addition, notwithstanding any applicable state laws to the
contrary, Lessee agrees to reimburse Lessor for all reasonable attorneys' fees
incurred by it incident to any action or proceeding involving the Lessee
brought pursuant to the Bankruptcy Code, as amended, which are allowable under
Section 506(b) thereof. The captions in the Lease are for convenience only and
shall not define or limit any of the terms hereof. THE LEASE SHALL BE GOVERNED
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
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