Exhibit 10.1
LOAN AGREEMENT
BY AND BETWEEN:
HIBERNIA NATIONAL BANK
AND
LABORATORY SPECIALISTS, INC.
UNITED STATES OF AMERICA
STATE OF LOUISIANA
PARISH ORLEANS
CITY OF NEW ORLEANS
BE IT KNOWN, that as of the 9th day of January, 1997 (the "Effective
Date"),
BEFORE ME, a Notary Public, duly commissioned and qualified, and in the
presence of the undersigned witnesses,
PERSONALLY CAME AND APPEARED:
LABORATORY SPECIALISTS, INC., a Louisiana corporation represented herein by
Arthur R. Peterson, Jr., its President, duly authorized by virtue of a
resolution of the Board of Directors of the corporation, a certified copy
of which is annexed hereto and made a part hereof,
(hereinafter the "Borrower"),
and
HIBERNIA NATIONAL BANK, a national banking association having its domicile
and principal place of business in New Orleans, Louisiana, appearing herein
through and by its duly authorized officer
(hereinafter the "Lender"),
each of whom did say and declare as follows:
A. The Borrower has applied to the Lender for a credit facility in the
maximum aggregate principal sum not exceeding One Million Seven Hundred Thousand
and No/100 ($1,700,000.00) Dollars (the "Term Loan") and for an additional
credit facility in the maximum aggregate principal sum not exceeding Two Hundred
Fifty Thousand and No/100 ($250,000.00) Dollars (the "Revolving Loan"), which
facilities shall be used for the purposes of the acquisition of the forensic
operations of Pathology Laboratories Limited and financing the equipment and
receivables of Borrower (the
said Term Loan and the said Revolving Loan being hereinafter collectively
referred to as the "Loan").
B. The Lender has agreed to provide the Borrower with the Loan subject to
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and in order to induce the
Lender to provide the Loan, the Borrower and the Lender hereby covenant and
agree as follows:
ARTICLE I
INTERPRETATIVE PROVISIONS
SECTION 1.01. Basic Defined Terms. As used in this Agreement, the
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following terms shall have the following meanings:
"Advance" shall mean the disbursement of any portion of the Loan.
"Agreement" shall mean this Loan Agreement, as the same may hereafter be
amended.
"Business Day" shall mean any day except a Saturday, Sunday, or other day on
which banks in New Orleans, Louisiana are required to close.
"Closing Date" shall mean the Effective Date.
"Collateral" shall mean all of the security interests, liens, mortgages,
encumbrances, or other rights in or relating to property, whether real or
personal, whether tangible or intangible, required to be held by or granted to
Lender under Section 3.01 of this Agreement.
"Collateral Documents" shall mean, collectively, the documents to be delivered
to the Lender as set forth in Section 3.02 of this Agreement.
"Default After Notice" shall have the meaning ascribed to it in Section 8.02
below.
"Effective Date" shall mean the, Effective Date determined pursuant to the first
sentence of this Agreement.
"Event of Default" shall mean any of the events or occurrences set forth in
Section 8.01 of this Agreement.
"Governmental Authority" shall mean any municipal, parish, state or . federal
governmental authority having or claiming jurisdiction over the Borrower and/or
the Property.
"Grantor" shall mean Borrower and any Guarantor and any other person who grants
Lender any Collateral for Loan.
"Indebtedness" shall mean any and all amounts and/or liabilities owing from time
to time to the Lender, whether now or in the future, whether evidenced in
writing or not, whether relating to a promissory note or other formal evidence
of indebtedness or arising out of some other source or obligation, whether
pursuant to this Agreement or any other instrument, including, without
limitation, principal, interest, late
charges, penalties, attorney's fees and amounts advanced by the Lender.
"Loan" shall have the meaning ascribed to it in Recital A.
"Loan Documents" shall mean, collectively, this Agreement, the Note, the
Collateral Documents, and any other documents or instruments executed or to be
executed in the future pursuant to this Agreement or in connection with the
Loan.
"Loan Year" shall mean each period of one year commencing on the anniversary
date of the Closing Date and ending one year later. The "First Loan Year" shall
commence on the Closing Date and shall end on the day prior to the Closing Date
one year later, and the "Second Loan Year" shall commence on the first annual
anniversary of the Closing Date and shall end one year later and so on.
"Notes" or "Note" shall mean, respectively, the Revolving Note and the Term Loan
Note collectively, or either one of them individually.
"Parent" shall mean any person that owns more than fifty (50%) percent of the
total issued and outstanding ownership interests in another person.
"Person" or "person" shall mean any natural or juridical person including any
human being or any entity whether incorporated or not, such as without
limitation, a corporation, limited liability company, or partnership.
"Prime Rate" shall mean the interest rate subject to change from time to time
equal to an independent index which is the prime rate of interest charged by
Citibank, N.A. at its main office at New York, New York (the "Index"). The
Index is not necessarily the lowest rate charged by Lender on its loans. If the
Index becomes unavailable during the term of this Loan, Lender may designate a
substitute Index after notice to Borrower. Lender will tell Borrower the
current Index upon Borrower's request. Borrower understands that Lender may make
loans based on other rates as well. As of the Closing Date, the Prime Rate is
eight and one-quarter (8.25%) percent. The Prime Rate shall not change more
often than once each day.
SECTION 1.02. Additional Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Affiliate" shall mean (a) any Guarantor, (b) any Subsidiary of Borrower, (c)
any Parent of Borrower, and (d) any other Subsidiary of the Parent of Borrower
(collectively "Affiliates").
"Collateral Note" shall mean that certain Collateral Mortgage Note executed by
the Borrower, dated January 17, 1990, in the principal sum of Two Hundred Fifty-
Five Thousand and No/100 ($255,000.00) Dollars, which is paraphed for
identification with and secured by the Mortgage.
"Commitment" shall mean the commitment letter addressed by Lender to Borrower
under date of November 27, 1996, accepted by Borrower on November 30, 1996.
"Compliance Certificate" shall mean the certificate, certified correct by the
chief executive officer of Borrower or other officer of Borrower reasonably
acceptable to Lender, affirming and certifying that Borrower is, as of the date
of said certificate, in full compliance with all covenants and obligations
expressed in this Agreement or any other Loan Documents.
"Eligible Receivables" shall mean those accounts receivable of Borrower which
have been outstanding and unpaid for less than ninety (90) days after date of
invoice and which are approved by Lender in its sole discretion as being
accounts receivable which Lender is willing to accept as collateral for the
Loan, evaluated on a month-by-month and case-by-case basis. By way of
illustration without limitation, the following accounts receivable were not so
approved, as of the Effective Date:
(1) all accounts receivable due from an account debtor if more than
fifty (50%) percent of the total accounts receivable due from that account
that account debtor that have been unpaid for more than sixty (60) days
after the date upon which payment was due;
(2) all accounts receivable due from account debtors not domiciled in
the United States, except such accounts that are payable in United States
currency;
(3) all accounts receivable due from account debtors with respect to
which bankruptcy or reorganization or similar proceedings for relief from
creditors are pending; and
(4) all accounts receivable due from account debtors who are (in
whole or in part) agencies or instrumentalities of local, state or federal
government.
"Eligible Receivables Certificate" shall mean the certificate, certified correct
by Borrower's chief financial officer, or chief operating officer or chief
executive officer, setting forth the calculation of the Eligible Receivables as
of the last day of a fiscal quarter, delivered to the Lender thirty (30) days
thereafter on the form annexed hereto as EXHIBIT "A". It shall show the
calculation of the Eligible Receivables and be supported by an aging summary for
the accounts receivable.
"Guarantor" shall mean LSAI.
"Guaranty Agreement" shall mean the continuing guaranty agreement establishing
the guaranty described in Section 3.03 below.
"Improvements" shall mean all buildings and other constructions now or hereafter
erected in, upon, and above the Property.
"LSAI" shall mean Laboratory Specialists of America, Inc., an Oklahoma
corporation.
"Mortgage" shall mean that certain Collateral Mortgage by the Borrower, dated
January 17, 1990, encumbering the Property, which secures the Collateral Note,
recorded or to be recorded in the mortgage records of the Parish of Plaquemines,
State of Louisiana in MOB 194, folio 361.
"Pledge of Collateral Mortgage Note" shall mean a document establishing the
Security Interest described in 3.01(a) below.
"Property" shall mean that certain immovable property located in Plaquemines
Parish, Louisiana, encumbered by and more particularly described in the
Mortgage, and known generally as 113 Jarrell Drive, Belle Chasse, Louisiana.
"Revolving Loan" shall mean any and all monies advanced from time to time by
Lender to Borrower under the Revolving Note.
"Revolving Loan Maturity Date" shall mean the date that is three hundred sixty-
four (364) days after the Closing Date.
"Revolving Note" shall mean the promissory note executed by the Borrower to the
order of the Lender on the Closing Date in the principal sum of Two Hundred
Fifty Thousand and No/100 ($250,000.00) Dollars, in evidence of the Revolving
Loan.
"Security Agreement" shall mean a document pursuant to which there is created
and established a Security Interest.
"Security Interest" shall mean an encumbrance of movable property, and shall
include proceeds unless otherwise specifically provided herein.
"Subsidiary" shall mean any person with respect to which more than fifty (50%)
percent of the total issued and outstanding ownership interests is owned by
another person.
"Term Loan" shall mean any and all monies advanced from time to time by Lender
to Borrower under the Term Loan Note.
"Term Loan Maturity Date" shall mean the date that is five (5) years after the
Closing Date.
"Term Loan Note" shall mean that certain promissory note in the original
principal amount of One Million Seven Hundred Thousand and No/100
($1,700,000.00) Dollars, executed by Borrower as maker to the order of Lender,
dated the Closing Date.
SECTION 1.03. Specific Financial Definitions.
"EBITDA" shall mean earnings before interest expense, income taxes, depreciation
and amortization.
"Long Team Debt" shall mean all indebtedness of the Borrower for borrowed money
maturing more than twelve (12) months after the date of determination, whether
secured or unsecured, which would be classified as long-term debt in accordance
with generally accepted accounting principles.
"Senior Debt" shall mean the Indebtedness plus any other debt of the Borrower
not subordinated to Lender.
SECTION 1.04. Rules of Interpretation.
(a) All terms defined in this Agreement shall have the defined meanings
when used in the Note, the Collateral Documents or in any certificates or other
document made or delivered pursuant hereto, unless the context shall otherwise
require.
(b) Words used herein in the singular, where the context so permits, shall
be deemed to include the plural and vice versa. Likewise, the definitions of
words used in the singular herein shall also apply to such words when used in
the plural and vice versa, unless the context shall otherwise require.
(c) The words "hereof", and "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement.
(d) Section, subsection, schedule and exhibit references are to this
Agreement unless otherwise specified.
(e) Captions and section headings are inserted for convenience only and
shall not affect any construction or interpretation of this Agreement.
ARTICLE II
BASIC ELEMENTS OF THE LOAN
SECTION 2.01. The Loan. Subject to the terms and conditions and relying on
the representations and warranties contained in this Agreement, the Lender
agrees to provide the Borrower with the Term Loan and with the Revolving Loan,
as follows:
(a) Term Loan. The maximum outstanding balance due under the Term Loan
shall not exceed One Million Seven Hundred Thousand and No/100 ($1,700,000.00)
Dollars, on the following terms and conditions:
i) The Term Note shall bear interest from the date of the Advance
until paid in full at the Prime Rate, as same is adjusted from time to
time as, provided elsewhere in this Agreement, plus one-half (.5%)
percent. Interest on the outstanding principal balance of the Term
Note shall be payable in arrears, along with principal due on the Term
Note, on the tenth (10th) day of each month until the Term Loan
Maturity Date. All interest charged shall be computed on the basis of
a 360-day daily interest factor calculated over the number of days in
an actual calendar year of 365 days, or, in the case of a leap year, a
calendar year of 366 days.
ii) The entire principal balance outstanding on the Term Loan Note
and all accrued interest shall be due and payable on the Term Loan
Maturity Date.
iii) The Term Loan Note may be prepaid in full or in part at any time
without the imposition of a prepayment charge or penalty.
iv) There shall be a fee of one (1%) percent of the maximum aggregate
principal sum of the Term Loan due from Borrower to Lender at Closing.
(b) Revolving Loan. The maximum outstanding balance due under the
Revolving Loan shall not exceed Two Hundred Fifty Thousand and No/100
($250,000.00) Dollars, and shall be made on the following terms and conditions:
i) The Revolving Note shall bear interest from the date of each
Advance until paid in full at the Prime Rate, as same is adjusted from
time to time as provided elsewhere in this Agreement. Interest on the
outstanding principal balance of the Revolving Note shall be payable
in arrears on the tenth (10th) day of each month. All interest
charged shall be computed on the basis of a 360-day daily interest
factor calculated over the number of days in an actual calendar year
of 365 days, or, in the case of a leap year, a calendar year of 366
days.
ii) The entire principal balance outstanding on the Revolving Note
and all accrued interest shall be due and payable three hundred sixty-
four
(364) days after the Closing Date. The Revolving Loan may be renewed
in whole or in part for one or more one (1) year periods thereafter,
all in Lender's sole discretion. In the event of any such renewal, all
provisions of this Agreement and the other Loan Documents shall, to
the maximum extent applicable to the Revolving Loan, remain in full
force and effect, without the need for any additional documentation,
provided that Borrower agrees to execute any additional documentation
relating to any such renewal that Lender may reasonably request.
iii) The Revolving Note may be prepaid in full or in part at any time
without the imposition of a prepayment charge or penalty.
iv) There shall be a fee, payable quarterly in arrears, of one-
quarter (.25%) percent of the unused portion of the maximum aggregate
principal sum of the Revolving Loan.
SECTION 2.02. Advances. The original principal amount of the Term Loan
shall be advanced by Lender to Borrower in a lump sum on the Closing Date, and
the principal amount of the Revolving Loan shall be advanced by Lender to
Borrower on a periodic basis, as requested by Borrower, but same shall be
advanced only (a) as permitted by Lender's business practices then in effect,
and (b) provided all other applicable terms and conditions of this Agreement
have been satisfied.
SECTION 2.03. Termination or Advances. The Lender's obligation to make
Advances shall terminate in the event that:
(a) the amount of all Advances made to date under the Term Loan equals One
Million Seven Hundred Thousand and No/100 ($1,700,000.00) (the occurrence of
this event shall terminate the obligation to make Advances under the Term Loan
Note only); or
(b) the Term Loan Maturity Date occurs (the occurrence of this event shall
terminate the obligation to make Advances under the Term Loan only); or
(c) the amount of Advances made to date under the Revolving Loan equals Two
Hundred Fifty Thousand and No/100 ($250,000.00) Dollars (the occurrence of this
event shall terminate the obligation to make Advances under the Revolving Loan
only); or
(d) the Revolving Maturity Date occurs (the occurrence of this event shall
terminate the obligation to make Advances under the Revolving Loan only).
ARTICLE III
SECURITY FOR THE LOAN
SECTION 3.01. Collateral. The Loan and the Notes shall be secured by the
following rights and interests in favor of Lender, all of which shall have a
first ranking and priority except as specifically indicated below:
(a) the pledge of, and grant of a Security Interest in, the Collateral
Note;
(b) the guaranty of the Guarantor in the amount as provided in Section
3.03;
(c) the grant of a Security Interest in the following movable property of
Borrower:
(1) all accounts receivables; and
(2) all contract rights and general intangibles; and
(3) all equipment;
(4) all furniture; and
(5) all fixtures located on the Property; and
(6) all inventory.
SECTION 3.02. Collateral Documents. The Borrower shall execute and/or
deliver on the Closing Date, any and all documents which may be necessary in
order to create, establish, attach or perfect the Collateral, including but not
limited to the following, all of which shall be in form and content acceptable
to Lender and Lender's counsel, in their discretion:
(a) an acknowledgment of the Pledge of Collateral Mortgage Note that
achieves the Collateral described in Section 3.01(a) above;
(b) the Guaranty Agreement;
(c) a Security Agreement in, and a UCC-3 Statement amending the November
10, 1993 UCC-1 Financing Statement to add, the movable property of Borrower
described in Section 3.01(c)(4)through (6) above; and
(d) an acknowledgment of the 1993 Commercial Security Agreement that would
achieve the collateral described in subsections 3.01(c)(1) through (3)
above.
SECTION 3.03. Guaranty Agreement. The Loan and all other Indebtedness
shall be guaranteed by each Guarantor in solido, up to the maximum amount of
same.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. General. To induce the Lender to make the Loan, the Borrower
hereby makes the following representations and warranties to the Lender:
(a) With respect to each Borrower and each Guarantor:
(i) If any such person is a natural person, the marital status of such
person recited in the appearance section of this Agreement or in any
document by which such person grants Collateral to Lender is true and
correct.
(ii) The mailing addresses of any such persons set forth in Section
9.06 of this Agreement pertaining to notices are correct.
(iii) If any such person is an entity, each such entity
a) is duly organized and validly existing under the laws of the
state of its organization,
b) has all requisite power and authority to execute any of the
Loan Documents to which it is a signatory, and
c) if a corporation, is in good standing in the state of its
incorporation.
(iv) Each such person has all requisite capacity and authority to
a) own its property,
b) to transact business in connection with the matters
described in this Agreement, and
c) to enter into and perform its obligations under the Loan
Documents.
(v) Each such person indicated as the owner of any property in any of
the Loan Documents has full, complete, good and merchantable title to
such property.
(b) (1) The execution, delivery and performance by any person of or
under the Loan Documents requires no action by or in respect of, or filing with,
any Governmental Authority (other than actions or filings in connection with the
perfection of a Security Interest or privilege in any Collateral hereunder) and
does not contravene, or constitute a default under or violation of any provision
of applicable law or regulation or of any documents governing any such person or
of any agreement, judgment, injunction, order, decree or other instrument which
is binding upon such person or to which any of such person's property is
subject.
(2) The execution of any Loan Documents by any person signatory
thereto constitutes and stands as the free act and deed of such person, without
the necessity of any further actions or approvals of any kind from any persons
or entities.
(c) The Loan Documents all constitute the legal, valid and binding
obligations of the person signatory thereto, and said documents are fully
enforceable in accordance with their respective terms.
(d) The financial statements heretofore delivered to the Lender are true
and correct in all material respects, and fairly represent the financial
condition of persons described therein, as of the date thereof. No material
adverse change has occurred in the conditions or operations reflected in any
such financial statement since the respective dates thereof, and no person
described therein is the subject of any bankruptcy, reorganization, or
insolvency proceeding.
(e) All information, reports, papers, financial projections and data given
to the Lender by Borrower or any other person pursuant to this Agreement or in
connection with the application for or the making of the Loan are accurate and
correct in all material respects.
(f) (i) The principal address from which Borrower conducts its business
is: 113 Jarrell Drive, Belle Chasse, Louisiana 70037.
(ii) The address of Borrower's chief financial office is: 113 Jarrell
Drive, Belle Chasse, Louisiana 70037.
(iii) The address of Borrower's registered office is: 113 Jarrell
Drive, Belle Chasse, Louisiana 70037.
(g) The fiscal year of Borrower ends on December 31.
(h) As of the Closing Date, neither Borrower nor any Guarantor is in
default under or in violation of any document or agreement with or in favor of
Lender, or any other document or agreement the default under or violation of
which would have a material adverse impact upon such person, nor does there
exist any state of facts which with the passage of time or the giving of notice
or both would constitute such a default or violation.
(i) There are no actions, suits or proceedings pending, at law or in
equity, or before any Governmental Authority, involving or affecting any of the
Collateral or the property subject to same (including but not limited to the
Mortgage or the Property) nor involving or affecting the validity or
enforceability or priority of any of the Collateral, nor are any of same
threatened or likely.
SECTION 4.02. Additional Representations and Warranties Pertaining to
Hazardous Materials. For the purposes of this Agreement, Borrower and Lender
agree that:
(a) unless the context otherwise specifies or requires, the following terms
shall have the meaning herein defined:
(i) "Hazardous Materials" shall mean any "hazardous waste" as defined
by either the Resource Conservation and Recovery Act of 1976 (42 U.S.C.
(S) 6901 et seq.), or the Louisiana Environmental Quality Act (La. R.S.
30:1051 et seq.) ("LEQA"), as amended from time to time, and
regulations promulgated thereunder;
any "hazardous substance" as defined by either the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (42
U.S.C. (S) 9601 et seq) ("CERCLA") or the LEQA, as amended from time to
time, and regulations promulgated thereunder;
asbestos;
polychlorinated biphenyls;
any substance the presence of which on the Property is prohibited by
any lawful rules and regulations of legally constituted authorities
from time to time in force and effect relating to the Property; and
any other substance which by any such rule or regulation requires
special handling in its collection, storage, treatment, or disposal.
(ii) "Hazardous Materials Contamination" shall mean the contamination
(whether presently existing or hereafter occurring) of the Property,
including the Improvements, facilities, soil, ground, water, air or
other elements on, or of, the Property by Hazardous Materials, or the
contamination of the Property, including the Improvements, facilities,
soil, ground, water, air or other elements on, or of, any other
property as a result of
Hazardous Materials at any time (whether before or after the date of
this Agreement) emanating from the Property.
"Governmental Requirement" shall mean any law, statute, ordinance,
code, rule, regulation, order or decree of any Governmental Authority.
(b) Borrower and any Grantor owning an interest in the Property hereby
warrant that each of them has no knowledge, after due inquiry, (i) of any
Hazardous Materials having been located on or under the Property, (ii) of
Borrower or any other person having ever caused or permitted any Hazardous
Materials to be placed, held, located or disposed of on, under or at the
Property or any part thereof, (iii) of any part of the Property having ever been
used as a manufacturing, storage or disposal site for Hazardous Materials, and
(iv) that any part of the Property is or has been affected by any Hazardous
Materials Contamination. To the best of said persons' knowledge and belief, no
property adjoining the Property has ever been used as a manufacturing, storage
or disposal site for Hazardous Materials nor is any other property adjoining the
Property affected by Hazardous Materials Contamination.
(c) Borrower agrees to (i) give notice to Lender immediately upon its
acquiring knowledge of the presence of any Hazardous Materials on the Property
or of any Hazardous Materials Contamination with a full description thereof;
(ii) promptly comply with any Governmental Requirement requiring removal,
treatment or disposal of such Hazardous Materials or Hazardous Materials
Contamination and provide Lender with satisfactory evidence of such compliance;
and (iii) provide Lender, within thirty (30) days after demand by Lender, with a
bond, letter of credit or similar financial assurance evidencing to Lender that
the necessary funds are available to pay the cost of removing, treating and
disposing of such Hazardous Materials or Hazardous Materials Contamination and
discharging any assessment which may be established on the Property as a result
thereof.
(d) Lender (by its officers, employees and agents) at any time and from
time to time, with reasonable cause, either prior to or after the occurrence of
any Event of Default hereunder, may contract for the services of persons (the
"Site Reviewers") to perform environmental site assessments (the "Site
Assessments") on the Property for the purpose of determining whether there
exists on the Property any environmental condition which could result in any
liability, cost or expense to the owner or occupier of such Property arising
under any Governmental Requirement relating to Hazardous Materials. The Site
Assessment may be performed at any time or times, upon reasonable notice, and
under reasonable conditions which do not impede the performance of the Site
Assessment. The Site Reviewers are hereby authorized to enter upon the Property
for such purposes. The Site Reviewers are further authorized to perform both
above and below the ground testing for environmental damage or the presence of
Hazardous Materials on the Property and such other tests on the Property as may
be necessary to conduct the Site Assessment in the reasonable opinion of the
Site Reviewers. Borrower will supply to the Site Reviewers such historical and
operational information regarding the Property as may be reasonably requested by
the Site Reviewers to facilitate the Site Assessment and will make available for
meetings with the Site Reviewers appropriate personnel having knowledge of such
matters. On request, Lender shall make the results of such Site Assessment
fully available to Borrower, which (prior to an Event of Default hereof) may at
its election, participate under reasonable procedures in the direction of such
Site Assessment and the description of tasks of the Site Reviewers. The cost of
per-forming such Site Assessment shall be paid by the Borrower.
(e) Regardless of whether any Site Assessments are conducted hereunder, any
Event of Default hereunder shall have occurred and be continuing, or any
remedies in respect of the Property are exercised by the Lender, Borrower shall
defend, indemnify and hold harmless Lender from any and all liabilities
(including strict liability), actions, demands, penalties, losses, costs or
expenses (including, without limitation, reasonable attorneys' fees and remedial
costs), suits, costs of any settlement or judgment and claims of any and every
kind whatsoever which may now or in the future be paid, incurred, or suffered
by, or asserted against Lender by any person or entity or governmental agency
for, with respect to, or as a direct or indirect result of, the presence on or
under, or the escape, seepage, leakage, spillage, discharge, emission,
discharging or release from or onto the Property of any Hazardous Materials or
any Hazardous Materials Contamination, or arise out of, or result from, the
environmental condition of the Property or the applicability of any Governmental
Requirement relating to Hazardous Materials (including, without limitation,
CERCLA or any so-called federal, state or local "superfund" or "superlien" law,
statute, ordinance, code, rule, regulation, order or decree) regardless of
whether or not caused by or within the control of Borrower. These
representations, covenants and warranties contained in this Section shall
survive the termination of this Agreement.
(f) At Lender's request, Borrower shall execute and deliver to the Lender
an environmental indemnity agreement in form and content acceptable to the,
Lender and Lender's counsel.
SECTION 4.03. Wetlands. The term "wetlands", as used in this Agreement,
shall have the same meaning as set forth in 16 USC Section 3902(5); the Clean
Water Act, 33 USC Section 1251, et seq.; LSA-R. S. 49:214.3, as they may be
amended or interpreted in the future. Except as disclosed to and acknowledged
by Lender in writing, Borrower represents and warrants that: (a) the Property
has not, as of the date of this Agreement, been designated, declared or reserved
as wetlands by any state or federal body or agency having jurisdiction over the
Property; and (b) Borrower has no knowledge of, or reason to believe that there
is, any effort to have the Property declared wetlands. Borrower hereby agrees
to indemnify Lender for any loss in value of the Property due to its subsequent
declaration, designation and/or reservation as wetlands, and 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 this Agreement or as a consequence of any dedication, declaration or
reservation of the Property, or any part thereof, as wetlands. The provisions
of this section shall not be affected by Lender's acquisition of any interest in
all or any portion of the Property, whether by foreclosure or otherwise.
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. General. Unless the Lender consents otherwise in writing,
continuing for as long as any Indebtedness remains unpaid, Borrower shall keep,
maintain, comply, preserve and be responsible for the satisfaction of each of
the following covenants:
(a) Borrower will indemnify the Lender from claims of brokers with whom
Borrower has dealt in the execution hereof or the consummation of the
transactions contemplated hereby.
(b) Borrower will pay all fees and expenses incurred by the Borrower and
the Lender in connection with the transactions contemplated hereunder,
including, without limitation, all service fees, legal fees ( including the fees
of counsel for the Lender) and all other costs, expenses and fees required to
satisfy the conditions of this Agreement.
(c) The Lender shall have the right from time to time at all times during
normal business hours to examine any or all of the books, records and accounts
at the office of the Borrower or other person maintaining such books, records,
and accounts and to make such copies or extracts thereof as the Lender shall
desire. In addition, Borrower shall furnish to the Lender within fifteen (15)
days, after request, such further detailed information covering the financial
affairs of the Borrower, as the Lender in its sole discretion may request.
(d) Borrower shall observe and perform each and every term to be observed
or performed by the Borrower pursuant to the terms of (i) all agreements and
other instruments (including but not limited to the Loan Documents) to which the
Borrower and the Lender are parties; and (ii) any other agreement or recorded
instrument the breach of which (a) would materially adversely affect the
ownership, operation or management of the Borrower's business or (b) would
adversely affect the priority or enforceability of any of the Loan Documents.
(e) Borrower shall make, execute and deliver to Lender such security
agreements, instruments, documents and other agreements reasonably necessary to
document or confirm the Loan and any matters set forth in any of the Loan
Documents or to evidence, confirm or continue any of the Security Interests in
the Collateral intended to be granted by the Loan Documents.
(f) If any of the addresses specified in Section 9.06 below are changed,
Borrower shall give Lender five (5) prior Business Days' notice thereof.
(g) Borrower shall comply with all applicable statutes, regulations and
orders of any Governmental Authority, and of any court, arbitrator or grand
jury, in respect to the conduct of their businesses and the ownership of their
properties, except such as are being contested in good faith.
(h) Borrower shall maintain all of its operating accounts with the Lender.
(i) Borrower shall pay, as and when due, all accounts and trade payables in
a manner consistent with normal business practices for companies engaged in
similar operations in the same area.
(j) Borrower will and does hereby indemnify and hold harmless the Lender
against any and all liabilities, obligations, losses, damages (including, but
not limited to, environmental liability),penalties, claims, actions, suits,
costs and expenses of whatever kind or nature which may be imposed on, incurred
by or asserted at any time against the Lender in any way relating to, or arising
in connection with the transaction of Borrower's business.
(k) Borrower shall provide Lender copies of all audits or inspections or
reports performed at the request of a governmental entity within thirty (30)
days after Lender's request for same.
SECTION 5.02. Financial Reports. Unless the Lender consents otherwise in
writing, continuing for as long as any Indebtedness remains unpaid, Borrower
shall
keep, maintain, comply, preserve and be responsible for the satisfaction of each
of the following covenants:
(a) Borrower will keep true books and records and accounts concerning its
business transactions.
(b) Borrower and Guarantor will, during the term of the Loan, furnish to
Lender as soon as available and in any event within forty-five (45) days after
the end of each fiscal quarter of each entity, financial statements, including
all financial statements filed with any Governmental Authority which regulates
securities (collectively the "Required Statements") covering each entity, signed
by the chief financial officer of the entity as to which the Required Statements
are issued.
(c) The Required Statements shall be prepared according to generally
accepted accounting principles, consistently applied; shall in all events
include balance sheets, income statements, sources and uses of cash, statements
of profit and loss, statements of changes in equity, and statements of cash
flows; and shall be addressed to Lender.
(d) Further, within one hundred twenty (120) days after the end of the
fiscal year of Borrower and Guarantor, each entity shall submit to Lender the
Required Statements, audited, unqualified and certified by a certified public
accountant.
(e) Borrower will provide to Lender photocopies of all income tax returns
filed by Borrower, within thirty (30) days of the filing of same.
(f) Borrower will notify Lender immediately of any material change in its
financial condition or that of any Guarantor or other Grantor.
(g) Within thirty (30) days after the end of Borrower's fiscal year,
Borrower shall provide to Lender a certified statement that it is in full
compliance with all of the terms of all of the Loan Documents and that there
exists no Event of Default under this Agreement nor any state of facts that with
the passage of time or the giving of notice or both would constitute such an
Event of Default, except for such facts and circumstances as may be specifically
described in such certificate.
(h) Borrower shall submit to Lender the Eligible Receivables Certificate.
SECTION 5.03. Financial Covenants. Unless the Lender consents otherwise in
writing, continuing for as long as any Indebtedness remains unpaid, Borrower
shall keep, maintain, comply, preserve and be responsible for the satisfaction
of each of the following covenants:
(a) Borrower shall maintain a positive net income, as defined by generally
accepted accounting principles.
(b) Borrower shall maintain a ratio of Senior Debt to EBITDA of no more
than 1.75:1.00.
(c) Borrower shall maintain a Debt Service Coverage Ratio of no less than
1.5:1 from the Closing Date until September 30, 1997 and no less than 2.5:1
thereafter. As used herein, the phrase "Debt Service Coverage Ratio" shall mean
the ratio obtained by dividing the Borrower's net income plus depreciation and
amortization expenses by the total "debt service" of Borrower. As used herein
"debt service" shall mean the total of the current maturities of Long Term Debt
plus all current
lease obligations. This covenant shall be tested annually at the end of each
fiscal year of Borrower.
(d) Borrower shall maintain Eligible Receivables of no less than One
Million Five Hundred Thousand and No/100 ($1,500,000.00) Dollars, increasing to
at least One Million Seven Hundred Thousand ($1,700,000.00) Dollars within
ninety (90) days after Borrower's acquisition of Pathology Laboratories Limited.
SECTION 5.04. Covenants Relating to the Property. Unless the Lender
consents otherwise in writing, continuing for as long as any Indebtedness
remains unpaid, Borrower shall keep, maintain, comply, preserve and be
responsible for the satisfaction of each of the following covenants:
(a) The Borrower shall pay all taxes, assessments, water rates, and other
charges, now or hereafter levied or assessed against the Property (hereinafter
referred to as "Taxes") prior to the date upon which any fine, penalty, or cost
may be added thereto or imposed by law for the non-payment thereof, unless
contested by the Borrower as permitted hereby, and shall deliver to the Lender
evidence satisfactory to the Lender evidencing such payment. The Borrower shall
have the right to contest Taxes which it believes in good faith and with advice
of its counsel or certified public accountants to be invalid or erroneously
assessed, provided that (i) such contest shall not result in the filing of an
enforceable lien against the Property or in any liability to the Lender and (ii)
the Borrower shall give notice of such contest to the Lender. The Borrower will
proceed to contest such Taxes diligently, and in connection with such contest
shall either pay the Taxes under protest or establish a reserve or escrow
satisfactory to the Lender for the payment of such Taxes, together with any
interest, penalties and costs that may be due with respect to such Taxes. In
the event that the Lender does not receive satisfactory evidence from the
Borrower, in writing, of the payment of all Taxes, then and in such event, the
Lender may pay the Taxes directly to the appropriate Governmental Authority and
such payments shall be deemed an Advance.
(b) (1) The Borrower shall keep the Property and all contents therein
insured for an amount not less than the greater of (i) the amount of the
replacement cost of the improvements thereon or (ii) the amount of the Loan, all
for the protection of the Lender, who shall be named as loss payee, in such
manner, in such amounts, and in such companies as the Lender may from time to
time approve. Loss proceeds (less expenses of collection) shall, at the
Lender's sole discretion, be applied to the Indebtedness, whether due or not, or
to the restoration of such improvements, or shall be released to the Borrower,
but such application or release shall not cure or waive any Event of Default
hereunder.
(2) The Borrower shall also maintain in effect public liability and
property damage insurance covering the Property in amounts and in companies
satisfactory to the Lender, together with such other coverages as the Lender
may, in its sole discretion, require.
(3) When available, policies of flood insurance (if required by
applicable governmental regulations) shall be maintained on the Property in the
maximum amount permitted.
(4) All policies of insurance required to be maintained by Borrower
hereunder shall contain standard clauses providing for notice of cancellation or
material modification thereof, which notice shall be given to Lender not less
than thirty (30) days prior to said cancellation or material modification.
(5) If Lender does not receive satisfactory evidence, in writing, of
said policies, then Lender may obtain the required insurance, with all expenses
of said insurance to be deemed an Advance.
(c) (1) The Borrower shall cause the Property to be maintained in good
condition and repair and will not commit or suffer to be committed any waste of
the Property.
(2) The improvements on the Property shall not be removed, demolished
or materially altered (except for normal replacement), without the consent of
the Lender.
(3) The Borrower shall promptly comply with all laws, orders, and
ordinances affecting the Property or the use thereof, and shall promptly repair,
replace or rebuild any part of the Property which may be damaged or destroyed by
any casualty (including any casualty for which insurance was not obtained or
obtainable) and shall complete and pay for, within a reasonable time, any
structure at any time in the process of construction or repair on the Property.
(4) Except for normal and customary utility servitudes, the Borrower
will not, without obtaining the prior consent of the Lender, initiate, join in,
or consent to any private restrictive covenant, zoning ordinance, or other
public or private restrictions, limiting or defining the uses which may be made
of the Property or any part thereof.
(d) The Borrower shall make, execute and deliver to Lender such security
agreements, instruments, documents and other agreements reasonably necessary to
document and secure the Loan and to perfect Lender's Security Interests as
required under this Agreement.
(e) No materialmen's or mechanics' or laborers' liens shall be filed of
record against the Property whatsoever and permitted to remain of record (that
is, not removed from the public records by bonding or payment or otherwise) for
a period in excess of ten (10) Business Days after Borrower has notice or
knowledge of any such lien.
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Lender's Consent Required. Unless the Lender consents
otherwise in writing, continuing for as long as any Indebtedness remains unpaid,
Borrower shall be responsible and liable that:
(a) Borrower shall not assign, transfer, alienate, pledge or encumber any
interest in this Agreement.
(b) Neither Borrower nor any Guarantor shall dispose of all or
substantially all of its property, accounts, assets or business.
(c) Borrower shall not change or expand its business as presently
conducted, consolidate with or merge into any other business, acquire interest
or ownership in any other business, or lend funds to any other business,
provided that Lender's
consent to any such action shall not be unreasonably withheld.
(d) Borrower shall not permit, cause or suffer there to occur (1) any
change in the identity or ownership percentages of the owners of Borrower (2)
any change in the management of any Borrower, (3) any change in the identity of
the President, Chief Executive Officer, or Chairman of the Board of Directors of
Borrower, from that in existence as of the Closing Date, or (4) any transfer,
encumbrance or pledge of any interest in Borrower.
(e) Borrower shall not sell, convey, lease, donate or otherwise alienate or
dispose of any of the property encumbered by the Collateral, whether voluntarily
or involuntarily, in any manner whatsoever, except
(1) where explicitly permitted under other provisions of this
Agreement, or
(2) for bona fide, arms' length sales or leases of portions of said
property where such sales or leases are part of the business regularly
engaged in by Borrower with respect to said property, such as (without
limitation) sales of condominium lots, or leases of apartments or
office space.
(f) Borrower shall not grant or suffer or permit to be filed any mortgage,
Security Interest, lien, pledge, hypothecation, or other encumbrance of or
against any of the property encumbered by the Collateral, whether voluntarily or
involuntarily, in any manner whatsoever, regardless of whether same is superior
or subordinate to the lien of any of the Collateral.
(g) Borrower shall not use or expend any portion of the Revolving Loan
proceeds for any purpose or matter other than the working capital of Borrower
nor any portion of the Term Loan proceeds for any purpose or matter other than
acquisition of the forensic operations of Pathology Laboratories Limited, a
Mississippi corporation.
(h) Borrower shall not incur any indebtedness or other obligation,
including any guaranty or other contingent obligation, to any bank, financial
institution or institutional lender.
ARTICLE VII
CONDITIONS OF LENDING
SECTION 7.01. General Conditions to Lend. The obligation of the Lender to
make any Advance hereunder is and shall be subject to satisfaction of each of
the following conditions:
(a) All proceedings to be taken in connection with the transactions
contemplated by this Agreement and all documents incident to such transactions
shall be satisfactory in form and substance to Lender and its counsel, and
Lender shall have received all documents or other evidence which the Lender and
its counsel may reasonably have requested in connection with such transactions.
(b) Borrower shall be in compliance with all the terms and conditions of
the Commitment, this Agreement and the other Loan Documents as of the date of
any Advance.
(c) No Event of Default shall have occurred, nor shall there exist any
state of facts which with the passage of time or the giving of notice or both
would constitute an Event of Default hereunder.
(d) The Lender shall have received duly executed originals or counterparts
of each of the Loan Documents.
(e) The Lender shall have been furnished with favorable opinions from
Borrower's counsel, which opinion shall cover such matters as the Lender may
require and be in form and substance satisfactory to the Lender.
(f) Lender shall have received the Required Statements in conformity with
Section 5.02 above, dated with respect to Borrower as of a date not later than
thirty (30) days prior to the Closing Date, and on the Closing Date there shall
have occurred no material changes in the financial condition of Borrower from
that reflected in said financial statements.
(g) The representations and warranties of Borrower contained in Article IV
shall be true on and as of the date of any Advance as though such
representations and warranties had been made on the dates of such Advance.
(h) Lender shall have received the Borrowing Base Certificate the due date
of which is closest to but prior to the date of the Advance.
(i) All proceedings to be taken in connection with the transactions
contemplated by this Agreement and all documents incident to such trans-actions
shall be satisfactory in form and substance to Lender and its special counsel
and Lender shall have received all documents or other evidence which the Lender
and its special counsel may reasonably have requested in connection with such
transactions, including copies of records of all corporate proceedings, if any,
in connection with such transactions, in form and substance satisfactory to
Lender and its counsel.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. Events of Default. The occurrence of any of the following
events shall constitute a default hereunder ("Event of Default"):
(a) Payment. The failure of the Borrower to pay any interest or principal
on either of the Notes or any other Indebtedness when due, or any other cost or
expense due hereunder or under the Notes, or any "default event" under the terms
of either of the Notes or under this Agreement or any of the other Loan
Documents.
(b) Other Obligations.
(1) the violation, default, or breach of any other covenant,
obligation, warranty, provision, clause or representation in favor of Lender
under this Agreement or any other Loan Document; or
(2) the violation, default, or breach of any covenant, obligation,
warranty, provision, clause or representation in favor of Lender under the Note
or any other document establishing, securing, or relating to any other document
or agreement (i) governing any other collateral that serves as collateral of the
Loan
or (ii) the default of which also constitutes a default under the Loan; or
(3) the violation, default, or breach of any covenant, obligation,
warranty, provision, clause or representation in favor of Lender under any other
document or instrument representing any part of the Indebtedness.
(c) Misrepresentations. If any report, certificate, financial statement or
other instrument furnished in connection with the Commitment or the Loan
Documents shall prove to be false or misleading in any material respect.
(d) Receivership. If an order, judgment or decree shall be entered by any
competent court appointing a receiver of the property of the Borrower or any
Guarantor, unless such appointment shall have been sought by the Lender to
enforce some provision of this Agreement, and such order, judgment or decree is
not appealed from within the time allowed by law, or if appealed from shall have
been affirmed.
(e) Insolvency. If the Borrower or any Guarantor shall: (i) apply for, or
consent to, the appointment of a receiver, trustee or liquidator of Borrower or
any Guarantor, or all or a substantial part of the assets of same; (ii) be
adjudicated a bankrupt or insolvent, or file a voluntary petition in bankruptcy,
or admit in writing the inability to pay debts as they become due; (iii) make a
general assignment for the benefit of creditors; (iv) file a petition or answer
seeking reorganization or arrangement with creditors, or to take advantage of
any insolvency law, or; (v) file an answer admitting the material allegations
of, or consent to, or default in answering, a petition filed against Borrower or
any Guarantor in any bankruptcy, reorganization or insolvency proceeding; or if
any involuntary petition for bankruptcy is filed against Borrower and such
petition is not dismissed within sixty (60) days of its filing date.
(f) Seizure. If any of the accounts receivable or rents of Borrower be
seized in the execution of a writ of seizure or sale, attachment, fieri facias
or any other legal process, or an order be issued in any judicial proceeding,
and such writ of seizure and sale, attachment, fieri facias or any other legal
process or order for the sale of such assets or any part thereof, issued in any
judicial proceeding be not released, revoked, stayed or set aside within forty-
five (45) days from issuance thereof.
(g) Adverse Change. If, in the opinion of Lender, any material adverse
change occurs in the financial condition of Borrower or any Guarantor for any
reason whatsoever.
(h) Termination of Entities. If any person comprising Borrower or any
Guarantor, not a natural person, should cease to exist as a duly organized and
existing entity under the laws of the State of its organization, or not be in
good standing under such laws, or be dissolved or liquidated.
(i) Non-Compliance. Failure or refusal of Borrower to cause to be
corrected within a reasonable time of discovery thereof, the failure of any
materials, fixtures, or articles used in the Improvements or in the
appurtenances thereto, or to be used in the operation thereof, to meet the
specifications and requirements of, or to comply with any Governmental
Authority.
(j) Advance. Failure or refusal of Borrower to satisfy any conditions to
its right to the receipt of an Advance hereunder for a period in excess of
thirty (30) days.
(k) Other Default After Notice. A Default After Notice shall be deemed to
exist under this Agreement if a Lack of Balance occurs with respect to the Loan
and Restoration of Balance is not achieved by Borrower within the time period
required under Section 2.02 above.
SECTION 8.02. Remedies.
If an Event of Default should occur, the Lender, without notice to
Borrower, shall have no obligation to make any further Advance hereunder. If
such default is not cured within ten (10) Business Days from the date of giving
of the Lender's notice to Borrower ("Default After Notice"), then the Lender
shall have the right to immediately declare the Note, the Indebtedness and all
amounts secured to be immediately due and payable, whereupon the same shall be
immediately due and payable without presentment, demand, protest, or notice of
any kind (all of which are hereby expressly waived by Borrower), and the Lender
may thereupon institute proceedings to collect the same, including the right to
institute foreclosure and/or enforcement proceedings on the Loan Documents, or
any of them. However, if the Event of Default is other than an obligation of
the Borrower to pay money, then before a Default After Notice shall have
occurred, the Borrower shall have thirty (30) days from the date of delivery of
Lender's notice to Borrower within which to cure it, and if the Event of Default
cannot be reasonably cured within such thirty (30) day period, and if the
Borrower commences the action required to cure such default and diligently
pursues such action, then the period shall be extended for such time as may be
required in the sole judgment of the Lender to cure such default. In addition
to all other rights and remedies available to Lender hereunder, Lender shall
have all rights and remedies available under the law against any person or
persons for damages or other compensation or remuneration that may be owed to
Lender on account of the violation, default, or breach of any covenant,
obligation, warranty, provision, clause or representation in Lender's favor.
ARTICLE IX
GENERAL PROVISIONS
Throughout the term of this Agreement:
SECTION 9.01. Cumulative Rights. The rights and remedies of the Lender
under this Agreement, the Note, and the other Loan Documents shall be
cumulative, and the exercise or partial exercise of any such right or remedy
shall not preclude the exercise of any other right or remedy.
SECTION 9.02. Approval by the Lender. All proceedings relating to the Loan
and all documents required or contemplated by this Agreement, and the persons
responsible for the execution and preparation thereof, shall be satisfactory to
the Lender, and the Lender's counsel shall have received copies (or certified
copies where appropriate in such counsel's judgment) of all documents requested.
SECTION 9.03. No Waiver. No Advance shall constitute a waiver of any of the
conditions to the Lender's obligation to make further Advances. If Borrower is
unable to satisfy any such condition, no Advance or waiver shall have the effect
of precluding the Lender from thereafter declaring an Event of Default because
any such condition shall remain unsatisfied.
SECTION 9.04. Facts. Any condition of this Agreement which requires the
submission of evidence of the existence or non-existence of a specified fact or
facts implies as a condition the existence or non-existence, as the case may be,
of such fact or facts, and the Lender shall, at all times, be free independently
to establish to its reasonable satisfaction such existence or non-existence.
SECTION 9.05. Third Party Beneficiaries. All conditions and obligations of
the Lender to make Advances hereunder are imposed solely and exclusively for the
benefit of the Lender and its assigns. No other person shall have standing to
require satisfaction of such conditions or be entitled to assume that the Lender
will refuse to make Advances in the absence of strict compliance with any or all
thereof, and no other person shall, under any circumstances, be deemed to be a
beneficiary of such conditions, any or all of which may be freely waived, in
whole or in part, by the Lender at any time in its sole discretion.
SECTION 9.06. Notices. All notices required hereunder shall be in writing
and shall be deemed to have been given (i) when delivered or (ii) if delivery is
refused, then on the date of attempted delivery, by the United States mail by
certified or registered mail, return receipt requested, or by commercial
overnight courier service, addressed to any party hereof at its address stated
below, or at such other address of which it shall have given notice in writing.
The respective addresses of the parties are as follows:
To the Lender: Hibernia National Bank
Commercial Banking Department
313 Carondelet Street
New Orleans, LA 70130
Attn: Lizette Terral
To the Borrower: Laboratory Specialists, Inc.
113 Jarrell Drive
Belle Chasse, LA 70037
Attn: Arthur R. Peterson, Jr.
To the Guarantor: Laboratory Specialists of America, Inc.
113 Jarrell Drive
Belle Chasse, LA 70037
Attn: Arthur R. Peterson, Jr.
SECTION 9.07. Amendment. Neither this Agreement nor any provisions hereof
may be changed, waived, discharged or terminated orally, or in any manner other
than by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought.
SECTION 9.08. Assignment by the Lender. This Agreement, the Loan and any
documents executed pursuant hereto may be assigned or serviced by the Lender,
its successors or assigns and the Lender, its successors, or assigns may receive
service, brokerage or other fees.
SECTION 9.09. Entire Agreement. This Agreement sets forth the entire
agreement of the Lender and the Borrower, and the Guarantor with respect to the
Loan, and supersedes all prior written or oral understandings with respect
thereto; provided, however, that all written representations, warranties and
certifications made by the
Borrower or Guarantor to the Lender with respect to the Loan and the Collateral
shall survive the execution of this Agreement.
SECTION 9.10. Conflict with Collateral Documents. If any substantive
provision of this Agreement is in conflict with a corresponding provision of the
Collateral Documents, the provisions of this Agreement shall prevail.
SECTION 9.11. Time is of the Essence. Time shall be deemed of the essence
with respect to performance of all the terms, provisions and conditions on the
part of the Borrower to be performed hereunder.
SECTION 9.12. 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 Loan 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 and specifically consents to the release of such information. 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 interest will be
considered as the absolute owners of such interest in the Loan 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 participation interests and unconditionally agrees that
either Lender or such purchaser may enforce Borrower's obligation under the Loan
irrespective of the failure or insolvency of any holder of any interest in the
Loan. Borrower further agrees that the purchaser of any such participation
interests may enforce its interest irrespective of any personal claims or
defenses that Borrower may have against Lender.
SECTION 9.13. Non-Waiver of Rights. Neither failure nor delay of the
Lender to exercise any right, power or privilege under this Agreement shall
operate as a waiver thereof. The single or partial exercise by the Lender of
any right, power or privilege shall not preclude any other or further exercise
of any right, power or privilege hereunder.
SECTION 9.14. Governing Law. This Agreement and all aspects of the Loan
shall be governed by laws of the State of Louisiana.
SECTION 9.15. Intervention by Guarantors. Each Guarantor intervenes in
this Agreement for the express purpose of becoming a party to this Agreement and
to acknowledge all of the terms, provisions, conditions and obligations of this
Agreement, including specifically the representations, warranties, and covenants
herein made with respect to each Guarantor and its property. Without limiting
the generality of the foregoing, by virtue of this intervention, each Guarantor
takes cognizance of and affirms each such representation, warranty, covenant and
obligation of the Borrower set forth in this Agreement, binds and obligates
himself or itself, jointly and in solido with Borrower and each other Guarantor,
and guarantees to the Lender, its successors and assigns, the full and complete
performance of all terms, conditions, provisions of this Agreement and all
obligations undertaken by Borrower, and each Guarantor herein.
SECTION 9.16. Relationship between the Parties. The relationship between
the
Lender and the Borrower shall be solely that of lender and borrower, and such
relationship shall not, under any circumstances whatsoever, be construed to be a
joint venture, joint adventure, or partnership.
SECTION 9.17. Survival. All warranties, representations, and covenants made
by Borrower and Guarantor herein or in any certificate or other instrument
delivered by them or on their behalf under this Agreement shall be considered to
have been relied upon by Lender and shall survive the making of the Loan and
delivery to Lender of the Note, regardless of any investigation made by the
Lender or on its behalf. All statements in any such certificate or other
instrument shall constitute warranties and representations by Borrower and
Guarantor hereunder.
SECTION 9.18. Separate Covenants. Each covenant contained in this
Agreement shall be construed (absent an express contrary provision therein) as
being independent of each other covenant contained herein and compliance with
any one covenant shall not (absent such an express contrary provision) be deemed
to excuse compliance with any or all other covenants.
SECTION 9.19. Severability. If any provision or the application of any
provision of this Agreement shall to any extent be invalid or unenforceable,
then the remainder of this Agreement or the application of such provision in
other circumstances (other than those as to which it is invalid or
unenforceable) shall not be affected, and each provision of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
SECTION 9.20. Limitation of Liability. This Agreement, the Note, and the
other Loan Documents, are executed by an officer of the Lender, and by
acceptance of the Loan, the Borrower agrees that for the payment of any claim or
the performance of any obligations hereunder resulting from any default by
Lender, resort shall be had solely to the assets and property of the Lender, and
no shareholder, officer, employee or agent of the Lender shall be personally
liable therefor.
SECTION 9.21. Multiple Parties. All of the covenants, agreements, and
obligations undertaken by Borrower shall bind each of the persons comprising
Borrower, in solido.
THUS DONE AND SIGNED by the parties hereto at New Orleans, Louisiana, on
the date first above written, in the presence of the undersigned witnesses and
me, Notary, after due reading of the whole.
WITNESSES: BORROWER:
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LABORATORY SPECIALISTS, INC.
/s/ Robert A. Gardebled, Jr. By: /s/ Arthur R. Peterson, Jr.
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Its: President
LENDER:
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HIBERNIA NATIONAL BANK
By: /s/ Lizette M. Terral
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Its: Vice President
NOTARY PUBLIC
/s/ Robert M. Steeg
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INTERVENTION and agreement, per Section 9.15 above:
Laboratory Specialists of America, Inc.
By: /s/ Arthur R. Peterson, Jr.
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Date: January 9, 1997
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