**Exhibit 10.12**

 

**LOAN AGREEMENT**

 

Wachovia Bank, National Association 

123 South Broad Street 

Philadelphia, Pennsylvania 19109 

(Hereinafter referred to as the“Bank”) 

 

Bio-Imaging Technologies, Inc. 

826 Newtown-Yardley Road 

Newtown, Pennsylvania 18940 

(Individually and collectively “Borrower”) 

 

This Loan Agreement (“Agreement”) is entered into May 15, 2004, by and between Bank and Borrower. 

 

This Agreement amends and restates in its entirety that certain Loan Agreement dated May 9, 2003 and applies to the loan or loans(individually and collectively, the “Loan”) evidenced by one or more promissory notes dated May 15, 2004 or other notes subject hereto, as modified from time to time (whether one or more, the “Note”), the standby letters ofcredit issued hereunder (each, a “Letter of Credit” and collectively, the “Letters of Credit”) and all Loan Documents. The terms “Loan Documents” and “Obligations,” as used in this Agreement, are defined inthe Note. 

 

Relying upon the covenants, agreements, representations endwarranties contained in this Agreement, Bank is willing to extend credit to Borrower upon the terms and subject to the conditions set forth herein, and Bank and Borrower agree as follows: 

 

LETTERS OF CREDIT. Upon the request of Borrower, Bank shall issue standby Letters of Credit,provided, the aggregate amount available to be drawn under all standby Letters of Credit plus the aggregate amount of unreimbursed drawings under all standby Letters of Credit at anyone time does not exceed $1,000,000.00, and further provided, nostandby Letter of Credit shall expire more than 365 days after the date it is issued. Notwithstanding anything to the contrary contained herein, the aggregate outstanding principal balance of Advances (as defined in the line of credit PromissoryNote in the amount of $5,000,000.00, dated May 15, 2004 plus the aggregate amount available to be drawn under all Letters of Credit plus the aggregate amount of unreimbursed drawings under all Letters of Credit at anyone time shall not exceed$5,000,000.00. The Letters of Credit are to be used by Borrower solely to finance working capital. Bank’s obligation to issue Letters of Credit shall terminate if Borrower is in default (however denominated) under the Note or the other LoanDocuments, or in any case, if not sooner terminated, on June 30,2005. 

 

**LETTER OF CREDIT FEES.**Borrower shall pay to Bank, at such times as Bank shall require, Bank’s standard fees in connection with Letters of Credit, as in effect from time to time, and with respect to standby Letters of Credit, anadditional fee equal to 1.50% per annum on the face amount of each standby Letter of Credit, payable annually, in advance, for so long as such Letter of Credit is outstanding. 

 

**REPRESENTATIONS.** Borrower represents that from the date of this Agreement and until final payment in full of the Obligations:**Accurate Information.** All information now and hereafter furnished to Bank is and will be true, correct and complete. Any such information relating to Borrower’s financial condition will accurately reflect Borrower’s financialcondition as of the date(s) thereof, (including all contingent liabilities of every type), and Borrower further represents that its financial condition has not changed materially or adversely since the date(s) of such 

 

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documents. **Authorization; Non-Contravention.** The execution, delivery and performance by Borrower and any guarantor, as applicable, of this Agreementand other Loan Documents to which it is a party are within its power, have been duly authorized as may be required and, if necessary, by making appropriate filings with any governmental agency or unit and are the legal, binding, valid andenforceable obligations of Borrower and any guarantors; and do not (i) contravene, or constitute (with or without the giving of notice or lapse of time or both) a violation of any provision of applicable law, a violation of the organizationaldocuments of Borrower or any guarantor, or a default under any agreement, judgment, injunction, order, decree or other instrument binding upon or affecting Borrower or any guarantor, (ii) result in the creation or imposition of any lien (other thanthe lien(s) created by the Loan Documents) on any of Borrower’s or any guarantor’s assets, or (iii) give cause for the acceleration of any obligations of Borrower or any guarantor to any other creditor. **Asset Ownership.** Borrower hasgood and marketable title to all of the properties and assets reflected on the balance sheets and financial statements supplied Bank by Borrower, and all such properties and assets are free and clear of mortgages, security deeds, pledges, liens,charges, and all other encumbrances, except as otherwise disclosed to Bank by Borrower in writing and approved by Bank (“Permitted Liens”). To Borrower’s knowledge, no default has occurred under any Permitted Liens and no claims orinterests adverse to Borrower’s present rights in its properties and assets have arisen. **Discharge of Liens and Taxes.**Borrower has duly filed, paid and/or discharged all taxes or other claims that may become a lien on any of itsproperty or assets, except to the extent that such items are being appropriately contested in good faith and an adequate reserve for the payment thereof is being maintained. **Sufficiency of Capital.** Borrower is not, and after consummation ofthis Agreement and after giving effect to all indebtedness incurred and liens created by Borrower in connection with the Note and any other Loan Documents, will not be, insolvent within the meaning of 11 U.S.C. § 101, as in effect from time totime. **Compliance with Laws.** Borrower is in compliance in all respects with all federal, state and local laws, rules and regulations applicable to its properties, operations, business, and finances, including, without limitation, any federalor state laws relating to liquor (including 18 U.S.C. § 3617, et seq.) or narcotics (including 21 U.S.C. § 801, et seq.) and/or any commercial crimes; all applicable federal, state and local laws and regulations intended to protect theenvironment; and the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), if applicable. **Organization and Authority.** Each corporation, partnership or limited liability company Borrower and/or guarantor, asapplicable, is duly created, validly existing and in good standing under the laws of the state of its organization, and has all powers, governmental licenses, authorizations, consents and approvals required to operate its business as now conducted.Each corporation, partnership or limited liability company Borrower and/or guarantor, as applicable, is duly qualified, licensed and in good standing in each jurisdiction where qualification or licensing is required by the nature of its business orthe character and location of its property, business or customers, and in which the failure to so qualify or be licensed, as the case may be, in the aggregate, could have a material adverse effect on the business, financial position, results ofoperations, properties or prospects of Borrower or any such guarantor.**No Litigation.** There are no pending or threatened suits, claims or demands against Borrower or any guarantor that have not been disclosed to Bank by Borrower in writing,and approved by Bank. 

 

**AFFIRMATIVE COVENANTS.** Borrower agrees that fromthe date hereof and until final payment in full of the Obligations, unless Bank shall otherwise consent in writing, Borrower will: **Access to Books and Records.** Allow Bank, or its agents, during normal business hours, access to the books,records and such other documents of Borrower as Bank shall reasonably require, and allow Bank, at Borrower’s expense, to inspect, audit and examine the same and to make extracts therefrom and to make copies thereof. **Business Continuity.**Conduct its business in substantially the same manner and locations as such business is now and has previously been conducted. **Certificate of Full Compliance From Accountant.** Deliver to Bank, with the financial statements required herein, acertification by Borrower’s independent certified public accountant that Borrower is in full compliance with the Loan Documents. **Compliance with Other Agreements.** Comply with all terms and conditions contained in this Agreement, and anyother Loan Documents, and swap agreements, if applicable, as defined in the 11 U.S.C. § 101, as in 

 

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effect from time to time. **Estoppel Certificate.** Furnish, within 15 days after request by Bank, a written statement duly acknowledged of the amount dueunder the Loan and identifying each outstanding Letter d Credit, if any, and whether offsets or defenses exist against the Obligations. Insurance. Maintain adequate insurance coverage with respect to its properties and business against loss ordamage of the kinds and in the amounts customarily insured against by companies of established reputation engaged in the same or similar businesses including, without limitation, commercial general liability insurance, workers compensationinsurance, and business interruption insurance; all acquired in such amounts and from such companies as Bank may reasonably require. **Maintain Properties.**Maintain, preserve and keep its property in good repair, working order and condition,making all replacements, additions and improvements thereto necessary for the proper conduct of its business, unless prohibited by the Loan Documents. **Notice of Default and Other Notices.** (a) Notice of Default. Furnish to Bank immediatelyupon becoming aware of the existence of any condition or event which constitutes a Default (as defined in the Loan Documents) or any event which, upon the giving of notice or lapse of time or both, may become a Default, written notice specifying thenature and period of existence thereof and the action which Borrower is taking or proposes to take with respect thereto. (b) **Other Notices.**Promptly notify Bank in writing of (i) any material adverse change in its financial condition or itsbusiness; (ii) any default under any material agreement, contract or other instrument to which it is a party or by which any of its properties are bound, or any acceleration of the maturity of any indebtedness owing by Borrower; (iii) any materialadverse claim against or affecting Borrower or any part of its properties; (iv) the commencement of, and any material determination in, any litigation with any third party or any proceeding before any governmental agency or unit affecting Borrower;and (v) at least 30 days prior thereto, any change in Borrower’s name or address as shown above, and/or any change in Borrower’s structure. **Other Financial Information.**Deliver promptly such other information regarding theoperation, business affairs, and financial condition of Borrower which Bank may reasonably request.**Payment of Debts.** Pay and discharge when due, and before subject to penalty or further charge, and otherwise satisfy before maturity ordelinquency, all obligations, debts, taxes, and liabilities of whatever nature or amount, except those which Borrower in good faith disputes. **Reports and Proxies.** Deliver to Bank, promptly, a copy of all financial statements, reports,notices, and proxy statements, sent by Borrower to stockholders, and all regular or periodic reports required to be filed by Borrower with any governmental agency or authority. 

 

**NEGATIVE COVENANTS.**Borrower agrees that from the date hereof and until final payment in full of the Obligations, unless Bank shallotherwise consent in writing, Borrower will not: **Change in Fiscal Year.** Change its fiscal year. **Change of Control.**Make or suffer a change of ownership that effectively changes control of Borrower from current ownership.**Encumbrances.**Create, assume, or permit to exist any mortgage, security deed, deed of trust, pledge, lien, charge or other encumbrance on any of its assets, whether now owned or hereafter acquired, other than: (i) security interests requiredby the Loan Documents; (ii) liens for taxes contested in good faith; (iii) purchase money security interests for equipment leases; or (iv) Permitted Liens. **Guarantees.** Guarantee or otherwise become responsible for obligations of any otherperson or persons, other than the endorsement of checks and drafts for collection in the ordinary course of business. **Acquisitions and Investments.** Purchase or otherwise acquire any other person or entity (whether by way of merger or assetsor stock purchase), which in the aggregate exceeds $2,000,000.00. **Default on Other Contracts or Obligations.** Default on any material contract with or obligation when due to a third party or default in the performance of any obligation to athird party incurred for money borrowed. **Government Intervention.**Permit the assertion or making of any seizure, vesting or intervention by or under authority of any governmental entity, as a result of which the management of Borrower or anyguarantor is displaced of its authority in the conduct of its respective business or such business is curtailed or materially impaired. **Judgment Entered.** Permit the entry of any monetary judgment or the assessment against, the filing of anytax lien against, or the issuance of any writ of garnishment or attachment against any property of or debts due Borrower in an amount in excess of $100,000.00 which is not discharged or execution is not stayed within 30 days of entry. **Retire orRepurchase Capital Stock.**Retire or otherwise acquire any of its capital stock. 

 

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**ANNUAL FINANCIAL STATEMENTS.** Borrower shall deliver to Bank, within 90 days after the close of each fiscal year,audited financial statements reflecting its operations during such fiscal year, including, without limitation, a balance sheet, profit and loss statement and statement of cash flows, with supporting schedules and in reasonable detail, prepared inconformity with generally accepted accounting principles, applied on a basis consistent with that of the preceding year. If audited statements are required, all such statements shall be examined by an independent certified public accountantacceptable to Bank. The opinion of such independent certified public accountant shall not be acceptable to Bank if qualified due to any limitations in scope imposed by Borrower or any other person or entity. Any other qualification of the opinion bythe accountant shall render the acceptability of the financial statements subject to Bank’s approval. 

 

**PERIODIC FINANCIAL STATEMENTS.** Borrower shall deliver to Bank, within 45 days after the end of each fiscal quarter, unaudited management-prepared quarterly financial statements including, without limitation, abalance sheet, profit and loss statement and statement of cash flows, with supporting schedules; all in reasonable detail and prepared in conformity with generally accepted accounting principles, applied on a basis consistent with that of thepreceding year. Such statements shall be certified as to their correctness by a principal financial officer of Borrower and in each case, if audited statements are required, subject to audit and year-end adjustments. 

 

**FINANCIAL COVENANTS.** Borrower agrees to the following provisions from the date hereofuntil final payment in full of the Obligations, unless Bank shall otherwise consent in writing, using the financial information for Borrower, its subsidiaries, affiliates and its holding or parent company, as applicable: **Current Ratio**.Borrower shall, at all times, maintain a Current Ratio of not less than 2.00 to 1.00. “Current Ratio” shall mean the ratio of Current Assets to Current Liabilities. “Current Assets” shall mean all assets which are so classifiedin accordance with generally accepted accounting principles. “Current Liabilities” shall mean all liabilities which are so classified in accordance with generally accepted accounting principles. **Deposit Relationship.**Borrower shallmaintain its primary depository account with Bank. **Effective Tangible Net Worth.** Borrower shall, at all times, maintain an Effective Tangible Net Worth of not less than $16,000,000.00. “Effective Tangible Net Worth” shall mean totalassets minus Senior Liabilities. For purposes of this computation, the aggregate amount of any intangible assets of Borrower including without limitation, goodwill, franchises, licenses, patents, trademarks, trade names, copyrights, service marks,and brand names, shall be subtracted from total assets. “Senior Liabilities” shall mean the sum of Total Liabilities, including capitalized leases and all reserves for deferred taxes and other deferred sums appearing on the liabilitiesside of a balance sheet, and all obligations as lessee under off-balance sheet synthetic leases, all in accordance with generally accepted accounting principles applied on a consistent basis, excluding debt fully subordinated to Bank on terms andconditions acceptable to Bank.**Limitation on Debt.** Borrower shall not, directly or indirectly, create, incur, assume or become liable for any additional indebtedness, including capitalized leases, whether contingent or direct, if, givingeffect to such additional debt on a pro forma basis causes the aggregate amount of Borrower’s debt, excluding obligations to Bank, to exceed $3,000,000.00. 

 

**CONDITIONS PRECEDENT.** The obligations of Bank to make the loan and any advances and to issue any Letters of Credit pursuant to this Agreement are subject to thefollowing conditions precedent: **Letter of Credit Documents.**Receipt by Bank of all documents required by Bank in connection with Letters of Credit, including without limitation, applications therefor, all in form satisfactory to Bank.**Additional Documents.** Receipt by Bank of such additional supporting documents as Bank or its counsel may reasonably request. 

 

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**IN WITNESS WHEREOF**, Borrower and Bank, on the day and year first written above, have caused this Agreement to beexecuted under seal. 

 
Bio-Imaging Technologies, Inc.  
/s/ Mark L. Weinstein
 (SEAL)Mark L. Weinstein, President & CEO  
/s/ Ted I. Kaminer
 (SEAL)Ted I. Kaminer, Sr. V.P. & CFO  Wachovia Bank, National Association  
/s/ William M. Hogan
 (SEAL)William M. Hogan, Vice President  
 

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