LOAN
AGREEMENT
Dated as of
July 29, 2005
between
CLINICIS-PHOENIX SURGERY CENTER, LLC.,
an Arizona limited liability company
"BORROWER"
and
VSOURCE (USA), INC.
"LENDER"
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LOAN
AGREEMENT
THIS LOAN AGREEMENT , dated as of July 29, 2005
(this " Agreement "), is entered into between
CLINICIS-PHOENIX SURGERY CENTER, LLC, an Arizona limited liability
company (being referred to as the " Borrower ") and VSOURCE
(USA), INC., a Delaware corporation (the " Lender ").
WITNESSETH:
A.
WHEREAS , the Borrower has requested the Lender
for a loan in the principal amount of $100,000 (the " Loan
") to finance the Borrower's working capital requirements, in
accordance with the terms: and provisions hereof and to be
evidenced by the Note hereinafter described and defined; and
B.
WHEREAS , the Lender is willing to extend the Loan
to the Borrower, subject to the terms, conditions, uses and
provisions hereinafter set forth, all of which are material to the
Lender and without which the Lender would not be willing to extend
any of such loan commitments described above;
NOW, THEREFORE , in consideration of the mutual
covenants and agreements contained herein, and other good and
valuable consideration, receipt of which is acknowledged by the
parties hereto, the parties agree as follows:
ARTICLE
I
CERTAIN DEFINITIONS
When
used herein, the following terms shall have the following
meanings:
1.1
"Applicable Prime Rate" shall mean the annual rate of
interest announced by JPMorganChase Bank,: National Association,
New York, New York (" JPMorganChase ") from time to time as
its prime or base rate, which rate shall be the rate used by
JPMorganChase as a base or standard for pricing purposes and which
shall not necessarily be its "best" or lowest rate. Should
JPMorganChase cease to announce a prime or base rate or should it
be merged, consolidated, liquidated or dissolved in such a manner
that it loses its separate corporate identity, then the Applicable
Prime Rate shall be the Prime Rate published by The Wall Street
Journal in its "Money Rates" column or a similar rate if such rate
ceases to be published. Any changes in the Applicable Prime Rate
shall be effective as of the date of the change.
1.2
"Business Day" shall mean a day other than a Saturday,
Sunday or a day upon which banks in the State of Arizona are closed
to business generally.
1.3
"Closing Date" shall mean the effective date of this
Agreement.
1.4
"Collateral" shall have the meaning assigned to that term in
Article III of this Agreement and in the Pledge Agreement.
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1.5
"Commitment" shall mean the Commitment described in Section
2.1 of this Agreement.
1.6
"Default Rate" shall mean the Applicable Prime Rate plus ten
percentage points (10.0%).
1.7
"Event of Default" shall mean any of the events specified in
Section 7.1 of this Agreement, and "Default" shall mean any event,
which together with any lapse of time or giving of any notice, or
both, would constitute an Event of Default.
1.8
"Indebtedness" shall mean and include any and all: (i)
indebtedness, obligations and liabilities of the Borrower to the
Lender incurred or which may be incurred or purportedly incurred
hereafter pursuant to the terms of this Agreement or any of the
other Loan Documents, and any replacements, amendments, extensions,
renewals, substitutions and increases in amount thereof, including
such amounts as may be evidenced by the Note and all lawful
interest, late charges and other charges, and all reasonable costs
and expenses incurred in connection with the preparation; filing
and recording of the Loan Documents, including attorneys fees and
legal expenses; (ii) all reasonable costs and expenses paid or
incurred by the Lender, including attorneys fees, in enforcing or
attempting to enforce collection of any Indebtedness and in
enforcing or realizing upon or attempting to enforce or realize
upon any Collateral or security for any Indebtedness, including
interest on all sums so expended by the Lender accruing from the
date upon which such expenditures are made until paid, at an annual
rate equal to the Default Rate; and (iii) all sums expended by the
Lender, in curing any Event of Default or Default of the Borrower
under the terms of this Agreement, the other Loan Documents or any
other writing evidencing or securing the payment of the Note
together with interest on all sums so expended by the Lender
accruing from the date upon which such expenditures are made until
paid, at an annual rate equal to the Default Rate.
1.9
"Laws" shall mean all statutes, laws, ordinances,
regulations, orders, writs, injunctions, or decrees of the United
States, any state or commonwealth, any municipality, any foreign
country, any territory or possession, or any Tribunal.
1.10
"Lien" shall mean any mortgage, pledge, security interest,
assignment, encumbrance, lien or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or
other title retention agreement, any lease in the nature thereof,
and the filing of or agreement to give any financing statement or
other similar form of public notice under the Laws of any
jurisdiction).
1.11
"Loan Documents" shall mean this Agreement, the Note, the
Pledge Agreement and all other documents, instruments and
certificates executed and delivered to the Lender by the Borrower
pursuant to the terms of this Agreement.
1.12
"Loan" shall mean the loan advance made hereunder pursuant
to the Commitment, including the sum evidenced by the Note.
1.13
"Note" shall mean the promissory note issued hereunder in
the form annexed hereto as Exhibit A .
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1.14
"Person" shall mean and include an individual, a
partnership, a joint venture, a corporation, a trust, an
unincorporated organization, and a government or any department,
agency or political subdivision thereof.
1.15
"Security Instruments" shall include the Pledge Agreement as
described and defined in Article III hereof and shall have the
meaning assigned to that term in Article III of this Agreement.
1.16
"Taxes" shall mean all taxes, assessments, fees, or other
charges or levies from time to time or at any time imposed by any
Laws or by any Tribunal.
1.17
"Tribunal" shall mean any municipal, state, commonwealth,
Federal; foreign, territorial or other sovereign, governmental
entity, governmental department; court, commission, board, bureau,
agency or instrumentality.
ARTICLE
II
CREDIT
2.1
Commitment . The Lender agrees, upon the terms and subject
to the conditions hereinafter set forth, to make a loan advance in
the amount of $100,000 to the Borrower from the Closing Date until
October 29, 2005 for the purpose of providing working capital to
the Borrower.
2.2
Note . Concurrent herewith the Borrower shall execute and
deliver to the order of the Lender the Borrower's promissory note
in the original principal amount of $100,000, which is annexed
hereto as Exhibit A and made a part hereof (the "
Note "). The Loan shall be evidenced by the Note and the
aggregate principal amount thereof shall be $100,000. The Note
shall bear interest on unpaid balances of principal from time to
time outstanding and on any past due interest at an annual rate of
ten percent (10.0%). After maturity (whether by acceleration or
otherwise) the Note shall bear interest at the Default Rate,
payable on demand. Interest shall be calculated on the basis of a
year of 365 days and assessed only for the number of days
lapsed.
The
Borrower may from time to time make prepayments of principal
without premium or penalty. All payments and prepayments shall be
made in lawful money of the United States of America. Any payments
or prepayments on the Note received by the Lender after 2:00
o'clock P.M. (applicable current time in La Jolla, California)
shall be deemed to have been made on the next succeeding Business
Day.
2.3 Intentionally
Omitted.
ARTICLE
III
CoLLATERAL/SECURITY
The
repayment of the Indebtedness shall be secured by (1) a continuing
lien and security interest pertaining thereto of first priority in,
and/or assignment, as security, of all of the grantor's right,
title and interest in the shares of common stock of Clinicis, Inc.,
a California
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corporation (" Clinicis ") owned by Donald A. Cook, as
more particularly described in that certain pledge agreement (the "
Pledge Agreement ") dated as of even date herewith from
Donald A. Cook, as grantor, to and in favor of the Lender, as
secured party (the collateral described herein and in the Pledge
Agreement being collectively referred to as the " Collateral
").
The
Borrower shall execute or cause to be executed such financing
statements, assignments, letters in lieu, notices and other
documents and instruments as shall be necessary or appropriate to
perfect the liens and security interests thus created and as maybe
required by the Lender in connection with the Loan contemplated
hereby (the Pledge Agreement and the other security documents being
collectively referred to herein as the " Security
Instruments ").
ARTICLE
IV
CONDITIONS PRECEDENT TO LOAN
4.1
Conditions Precedent to Loan . The obligation of the Lender
to make the Loan under the Commitment is subject to the
satisfaction of all of the following conditions on or prior to the
Closing Date (in addition to the other terms and conditions set
forth herein), except as specifically provided below:
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(a)
No Default . There shall exist no Event of Default or
Default on the Closing Date.
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(b)
Representations and Warranties . The representations,
warranties and covenants set forth in Articles V and
VI hereof shall be true and correct on and as of the Closing
Date, with the same effect as though made on and as of the Closing
Date.
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(c)
Proceedings . On or before the Closing Date, all corporate
proceedings of the Borrower shall be taken in connection with the
transactions contemplated by the Loan Documents and shall be
satisfactory in form and substance to the Lender and its counsel;
and the Lender shall have received certified copies, in form and
substance satisfactory to the Lender and its counsel, of the
Certificate or Articles of Organization and the Operating Agreement
or Regulations of the Borrower, as adopted, authorizing the
execution and delivery of the Loan Documents thereby on behalf of
the Borrower, the borrowing under this Agreement, and the granting
of the security interests in the Collateral pursuant to the Pledge
Agreement by Donald A. Cook and the other Security Instruments, to
secure the payment of the Indebtedness.
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(d)
Security Instruments . No later than four (4) business days
from the Closing Date, the Borrower shall have delivered or caused
to be delivered to the Lender the Security Instruments,
appropriately executed by all parties, attested, sealed, witnessed
and acknowledged to the satisfaction of the Lender and dated as of
the Closing Date, together with such supplemental security
agreements,
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financing
statements and other documents as shall be necessary and
appropriate to perfect the Lender's liens and security interests in
the Collateral.
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(e)
Note . The Borrower shall have delivered the Note to the
order of the Lender, appropriately executed.
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(f)
Pledge . No later than four (4) business days from the
Closing Date, the pledgor, Donald A. Cook (the " Pledgor ")
shall have delivered to the Lender his shares of common stock of
Clinicis, duly endorsed in blank for transfer.
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(g)
Other Information . The Lender shall have received such
other information, documents and assurances as shall be reasonably
requested by the Lender.
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4.2
Conditions Precedent to the Loan . The Lender shall not be
obligated to advance the Loan under the Commitment (i) if at such
time any Event of Default shall have occurred or any Default shall
have occurred and be continuing, or (ii) if any of the
representations, warranties and covenants contained in this
Agreement shall be false or untrue in any material respect on the
date of such loan, as if made on such date.
ARTICLE
V
COVENANTS
The
Borrower covenants and agrees with the Lender that from the date
hereof and so long as this Agreement is in effect (by extension,
amendment or otherwise) and until payment in full of all
Indebtedness and the performance of all other obligations of the
Borrower under this Agreement, unless the Lender shall otherwise
consent in writing:
5.1
Payment of Taxes and Claims . The Borrower will pay and
discharge or cause to be paid, and discharged all Taxes imposed
upon the income or profits of the Borrower (but only to the extent
the liability therefor is not passed through to its shareholders)
or upon the property, real, personal or mixed, or upon any part
thereof, belonging to the Borrower before the same shall be in
default, and all lawful claims for labor, rentals, materials and
supplies which, if unpaid, might become a Lien upon its property or
any part thereof; provided however , that the
Borrower shall not be required to pay and discharge or cause to be
paid or discharged any such Tax, assessment or claim so long as the
validity thereof shall be contested in good faith by appropriate
proceedings, and adequate book reserves shall be
