EXHIBIT 10.22
[PNCBANK LOGO]
AMENDED AND RESTATED
TERM / TIME NOTE
$7,900,000 November 16, 2001
FOR VALUE RECEIVED, ESCALON MEDICAL CORP (the "Borrower"), with an address at
351 E. Conestoga Road, Wayne, Pennsylvania 19087, jointly and severally promise
to pay to the order of PNC BANK, NATIONAL ASSOCIATION (the "Bank"), in lawful
money of the United States of America in immediately available funds at its
offices located at 1600 Market Street, Philadelphia, PA 19103, or at such other
location as the Bank may designate from time to time, the principal sum of SEVEN
MILLION NINE HUNDRED THOUSAND DOLLARS ($7,900,000), together with interest
accruing on the outstanding principal balance from the date hereof as provided
below:
1. RATE OF INTEREST. Amounts outstanding under this Note will
bear interest as set forth in the Letter Agreement referred to
in Section 5 hereof.
2. PAYMENT TERMS. Principal shall be due and payable in 12
consecutive quarterly installments in the amounts and on the
dates set forth on Exhibit A hereto commencing on December 1,
2001, and a final installment equal to the unpaid principal
balance on June 30, 2004. Interest shall be payable monthly on
the first day of each month commencing on the first day of the
month following the date hereof. If any payment under this
Note shall become due on a Saturday, Sunday or public holiday
under the laws of the State where the Bank's office indicated
above is located, such payment shall be made on the next
succeeding business day and such extension of time shall be
included in computing interest in connection with such
payment. The Borrower hereby authorizes the Bank to charge the
Borrower's deposit account at the Bank for any payment when
due hereunder. Payments received will be applied to charges,
fees and expenses (including attorneys' fees), accrued
interest and principal in any order the Bank may choose, in
its sole discretion.
3. LATE PAYMENTS; DEFAULT RATE. If the Borrower fails to make any
payment of principal, interest or other amount coming due
Escalon Medical Corp.
November 16, 2001
Page 2
pursuant to the provisions of this Note within 15 calendar
days of the date due and payable, the Borrower also shall pay
to the Bank a late charge equal to the lesser of five percent
(5%) of the amount of such payment or $100. Such 15 day period
shall not be construed in any way to extend the due date of
any such payment. The late charge is imposed for the purpose
of defraying the Bank's expenses incident to the handling of
delinquent payments and is in addition to, and not in lieu of,
the exercise by the Bank of any rights and remedies hereunder,
under the other Loan Documents or under applicable laws, and
any fees and expenses of any agents or attorneys which the
Bank may employ. Upon maturity, whether by acceleration,
demand or otherwise, and at the option of the Bank upon the
occurrence of any Event of Default (as hereinafter defined)
and during the continuance thereof, this Note shall bear
interest at a rate per annum (based on a year of 360 days and
actual days elapsed) which shall be four percentage points
(4%) in excess of the interest rate in effect from time to
time under this Note but not more than the maximum rate
allowed by law (the "Default Rate"). The Default Rate shall
continue to apply whether or not judgment shall be entered on
this Note.
4. PREPAYMENT. If this Note bears interest at a floating rate,
the indebtedness may be prepaid in whole or in part at any
time without penalty. If this Note bears interest at a fixed
rate, notwithstanding anything contained herein to the
contrary, upon any prepayment by or on behalf of the Borrower
(whether voluntary, on default or otherwise), the Bank may
require, if it so elects, the Borrower to pay the Bank as
compensation for the cost of being prepared to advance fixed
rate funds hereunder an amount equal to the Cost of
Prepayment. "Cost of Prepayment" means an amount equal to the
present value, if positive, of the product of (a) the
difference between (i) the yield, on the beginning date of the
applicable interest period, of a U.S. Treasury obligation with
a maturity similar to the applicable interest period minus
(ii) the yield on the prepayment date, of a U.S. Treasury
obligation with a maturity similar to the remaining maturity
of the applicable interest period, and (b) the principal
amount to be prepaid, and (c) the number of years, including
fractional years, from the prepayment date to the end of the
applicable interest period. The yield on any U.S. Treasury
obligation shall be determined by reference to Federal Reserve
Statistical Release H.15(519) "Selected Interest Rates". For
purposes of making present value
Escalon Medical Corp.
November 16, 2001
Page 3
calculations, the yield to maturity of a similar maturity U.S.
Treasury obligation on the prepayment date shall be deemed the
discount rate. The Cost of Prepayment shall also apply to any
payments made after acceleration of the maturity of this Note
while a Fixed Rate is in effect.
5. OTHER LOAN DOCUMENTS. This Note is issued in connection with a
Letter Agreement (as amended, supplemented or otherwise
modified from time to time, the "Letter Agreement") of even
date between Bank, Borrower and the subsidiaries of the
Borrower party thereto and related documents, the terms of
which (together with the terms of the Guaranty and Suretyship
Agreements previously executed by the subsidiaries of the
Borrower) are incorporated herein by reference (the "Loan
Documents"), and is secured by the property described in the
Loan Documents (if any) and by such other collateral as
previously may have been or may in the future be granted to
the Bank to secure this Note.
6. EVENTS OF DEFAULT. The occurrence of any of the following
events will be deemed to be an "Event of Default" under this
Note: (i) the nonpayment of any principal, interest or other
indebtedness under this Note when due; (ii) the occurrence of
any event of default or default and the lapse of any notice or
cure period under any Loan Document or any other debt,
liability or obligation to the Bank of any Obligor; (iii) the
filing by or against any Obligor of any proceeding in
bankruptcy, receivership, insolvency, reorganization,
liquidation, conservatorship or similar proceeding (and, in
the case of any such proceeding instituted against any
Obligor, such proceeding is not dismissed or stayed within
thirty (30) days of the commencement thereof); (iv) any
assignment by any Obligor for the benefit of creditors, or any
levy, garnishment, attachment or similar proceeding is
instituted against any property of any Obligor held by or
deposited with the Bank; (v) a default with respect to any
other indebtedness of any Obligor for borrowed money, if the
effect of such default is to cause or permit the acceleration
of such debt; (vi) the commencement of any foreclosure or
forfeiture proceeding, execution or attachment against any
collateral securing the obligations of any Obligor to the
Bank; (vii) the entry of a final judgment against any Obligor
and the failure of such Obligor to discharge the judgment
within ten (10) days of the entry thereof; (viii)
[INTENTIONALLY OMITTED]; (ix) in the opinion of the Bank, any
material adverse change in the financial condition of the
Obligors taken as a whole;
Escalon Medical Corp.
November 16, 2001
Page 4
(x) the Borrower or any other material Obligor ceases doing
business as a going concern; (xi) the revocation or attempted
revocation, in whole or in part, of any guarantee by any
Guarantor; (xii) the death or legal incompetency of any
individual Obligor or, if any Obligor is a partnership, the
death or legal incompetency of any individual general partner;
(xiii) any representation or warranty made by any Obligor to
the Bank in any Loan Document, or any other documents now or
in the future securing the obligations of any Obligor to the
Bank, is false, erroneous or misleading in any material
respect; or (xiv) the failure of any Obligor to observe or
perform any covenant or other agreement with the Bank
contained in any Loan Document or any other documents now or
in the future securing the obligations of any Obligor to the
Bank which is not cured within fifteen days after the earlier
of any Obligor's knowledge thereof and an Obligor's receipt of
written notice thereof from the Bank. As used herein, the term
"OBLIGOR" means any Borrower and any Guarantor, and the term
"GUARANTOR" means any Guarantor of the obligations of the
Borrower to the Bank existing on the date of this Note or
arising in the future.
Upon the occurrence of an Event of Default: (a) the Bank shall be under no
further obligation to make advances hereunder; (b) if an Event of Default
specified in clause (iii) or (iv) above shall occur, the outstanding principal
balance and accrued interest hereunder together with any additional amounts
payable hereunder shall be immediately due and payable without demand or notice
of any kind; (c) if any other Event of Default shall occur, the outstanding
principal balance and accrued interest hereunder together with any additional
amounts payable hereunder, at the option of the Bank and without demand or
notice of any kind, may be accelerated and become immediately due and payable;
(d) at the option of the Bank, this Note will bear interest at the Default Rate
from the date of the occurrence of the Event of Default; and (e) the Bank may
exercise from time to time any of the rights and remedies available to the Bank
under the Loan Documents or under applicable law.
7. POWER TO CONFESS JUDGMENT. THE BORROWER HEREBY EMPOWERS ANY
ATTORNEY OF ANY COURT OF RECORD, AFTER THE OCCURRENCE OF ANY
EVENT OF DEFAULT HEREUNDER, TO APPEAR FOR THE BORROWER AND,
WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT, OR A SERIES
OF JUDGMENTS, AGAINST THE BORROWER IN FAVOR OF THE BANK OR ANY
HOLDER HEREOF FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE,
ALL ACCRUED INTEREST AND ALL OTHER AMOUNTS DUE HEREUNDER,
TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S COMMISSION OF
THE GREATER OF 10% OF SUCH PRINCIPAL AND INTEREST OR $1,000
ADDED AS A REASONABLE ATTORNEY'S FEE, AND FOR DOING SO, THIS
NOTE OR A
Escalon Medical Corp.
November 16, 2001
Page 5
COPY VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. THE
BORROWER HEREBY FOREVER WAIVES AND RELEASES ALL RIGHTS OF
APPEAL AND ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR
EXEMPTION LAWS OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED.
INTEREST ON ANY SUCH JUDGMENT SHALL ACCRUE AT THE DEFAULT
RATE.
NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT, OR A SERIES OF
JUDGMENTS, SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH
EXERCISE SHALL BE HELD BY ANY COURT TO BE INVALID, VOIDABLE, OR VOID, BUT THE
POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO TIME AS
OFTEN AS THE BANK SHALL ELECT UNTIL SUCH TIME AS THE BANK SHALL HAVE RECEIVED
PAYMENT IN FULL OF THE DEBT, INTEREST AND COSTS.
8. RIGHT OF SETOFF. In addition to all liens upon and rights of
setoff against the money, securities or other property of the
Borrower given to the Bank by law, the Bank shall have, with
respect to the Borrower's obligations to the Bank under this
Note and to the extent permitted by law, a contractual
possessory security interest in and a contractual right of
setoff against, and the Borrower hereby assigns, conveys,
delivers, pledges and transfers to the Bank all of the
Borrower's right, title and interest in and to, all deposits,
moneys, securities and other property of the Borrower now or
hereafter in the possession of or on deposit with, or in
transit to, the Bank whether held in a general or special
account or deposit, whether held jointly with someone else, or
whether held for safekeeping or otherwise, excluding, however,
all IRA, Keogh, and trust accounts. Every such security
interest and right of setoff may be exercised without demand
upon or notice to the Borrower. Every such right of setoff
shall be deemed to have been exercised immediately upon the
occurrence of an Event of Default hereunder without any action
of the Bank, although the Bank may enter such setoff on its
books and records at a later time.
9. MISCELLANEOUS. No delay or omission of the Bank to exercise
any right or power arising hereunder shall impair any such
right or power or be considered to be a waiver of any such
right or power, nor shall the Bank's action or inaction impair
any such right or power. The Borrower agrees to pay on demand,
to the extent permitted by law, all costs and expenses
incurred by the Bank in the enforcement of its rights in this
Note and in any security therefor, including without
limitation reasonable fees and expenses of the Bank's counsel.
If any provision of this Note is found to be invalid by a
court, all the other provisions of this Note will remain in
full force and effect. The Borrower and all other makers and
endorsers of this
Escalon Medical Corp.
November 16, 2001
Page 6
Note hereby forever waive presentment, protest, notice of
dishonor and notice of nonpayment. The Borrower also waives
all defenses based on suretyship or impairment of collateral.
If this Note is executed by more than one Borrower, the
obligations of such persons or entities hereunder will be
joint and several. This Note shall bind the Borrower and its
heirs, executors, administrators, successors and assigns, and
the benefits hereof shall inure to the benefit of the Bank and
its successors and assigns.
This Note has been delivered to and accepted by the Bank and will be deemed to
be made in the State where the Bank's office indicated above is located. THIS
NOTE WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE BANK AND THE
BORROWER DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE BANK'S
OFFICE INDICATED ABOVE IS LOCATED, EXCLUDING ITS CONFLICT OF LAWS RULES. The
Borrower hereby irrevocably consents to the exclusive jurisdiction of any state
or federal court for the county or judicial district where the Bank's office
indicated above is located, and consents that all service of process be sent by
nationally recognized overnight courier service directed to the Borrower at the
Borrower's address set forth herein and service so made will be deemed to be
completed on the business day after deposit with such courier; provided that
nothing contained in this Note will prevent the Bank from bringing any action,
enforcing any award or judgment or exercising any rights against the Borrower
individually, against any security or against any property of the Borrower
within any other county, state or other foreign or domestic jurisdiction. The
Borrower acknowledges and agrees that the venue provided above is the most
convenient forum for both the Bank and the Borrower. The Borrower waives any
objection to venue and any objection based on a more convenient forum in any
action instituted under this Note.
10. WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND
ALL RIGHTS THE BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS
NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS NOTE OR
ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE
BORROWER ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND
VOLUNTARY.
THE BORROWER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE CONFESSION OF JUDGMENT AND WAIVER OF JURY TRIAL, AND
HAS BEEN ADVISED BY COUNSEL AS NECESSARY OR APPROPRIATE. THE OBLIGATIONS UNDER
THIS NOTE ARE JOINT AND SEVERAL.
WITNESS the due execution hereof as a document under seal, as of the date first
written above, with the intent to be legally bound hereby.
ESCALON MEDICAL CORP.
Attest: /s/ By: /s/
-------------------------- --------------------------------
Print Name: H.M. Rimmer Print Name: Richard J. DePiano
---------------------- ------------------------
Title: SVP Finance Title: Chairman & CEO
--------------------------- -----------------------------
EXHIBIT A
<Table>
<Caption>
DATE AMOUNT
---- ------
December 1, 2001 $ 350,000
March 1, 2002 $ 400,000
June 1, 2002 $ 400,000
September 1, 2002 $ 450,000
December 1, 2002 $ 450,000
March 1, 2003 $ 525,000
June 1, 2003 $ 525,000
September 1, 2003 $ 650,000
December 1, 2003 $ 650,000
March 1, 2004 $ 750,000
June 1, 2004 $ 750,000
June 30, 2004 $2,000,000
</Table>