EXHIBIT 10.1
FORM OF
LOAN AND SECURITY AGREEMENT
This Loan And Security Agreement (this "Agreement"), dated as
of
, 2002 is entered into by and between
, ("Borrower") having its offices
at
and
("Lender") having its
offices
.
Borrower desires to borrow from the Lender $
, as more
particularly described below (the "Loan"), secured by a lien on all of the
Borrower's right, title and interest in and to certain Equipment (as defined
herein). As further inducement for Lender to enter into this Agreement, Borrower
agrees to obtain the guaranty of its parent company ("Guarantor") for the full
and prompt payment by Borrower of all obligations hereunder ("Guaranty"), such
Guaranty to be substantially in the form of Exhibit C attached hereto. In
consideration of the mutual covenants hereinafter set forth the parties agree as
follows:
1.
AS SECURITY FOR THE PROMPT PAYMENT OF ALL DEBT, PRINCIPAL,
INTEREST, AND OTHER AMOUNTS OWED TO LENDER BY BORROWER AND THE PROMPT
PERFORMANCE OF EACH OF THE BORROWER'S COVENANTS AND DUTIES HEREUNDER AND UNDER
ONE OR MORE PROMISSORY NOTE(S) (THE "NOTES") IN THE ORIGINAL PRINCIPAL AMOUNTS
AS SET FORTH IN EXHIBIT A HERETO AND PAYABLE BY THE BORROWER TO THE LENDER OR
ANY OTHER AGREEMENT, WHETHER ABSOLUTE OR CONTINGENT, DUE OR TO BECOME DUE,
INCLUDING ANY INTEREST THAT ACCRUES AFTER THE COMMENCEMENT OF AN INSOLVENCY
PROCEEDING ("INDEBTEDNESS"), THE BORROWER HEREBY ASSIGNS TO THE LENDER, AND
GRANTS TO THE LENDER A SECURITY INTEREST IN ALL THE BORROWER'S RIGHT, TITLE AND
INTEREST IN AND TO PROPERTY ("COLLATERAL") CONSISTING OF THE EQUIPMENT
("EQUIPMENT") DESCRIBED IN EXHIBIT A HERETO AND ANY REPAIRS AND REPLACEMENTS
THEREOF AND SUBSEQUENT ADDITIONS, MODIFICATIONS AND ACCESSIONS THERETO, AND ALL
PROCEEDS OF THE FOREGOING AND OF THE INSURANCE REFERRED TO IN PARAGRAPH (3)
HEREOF, EXCEPT FOR INCOME OR PROCEEDS GENERATED BY THE USE OF THE EQUIPMENT
INCLUDING, WITHOUT LIMITATION, INCOME, ACCOUNTS, OR INSTRUMENTS. A FORM OF NOTE
IS ATTACHED HERETO AS EXHIBIT B.
2.
THE BORROWER REPRESENTS, WARRANTS AND AGREES THAT (I) IT HAS GOOD
TITLE TO THE COLLATERAL, FREE OF ALL LIENS, CLAIMS AND ENCUMBRANCES, EXCEPT FOR
LIENS INFERIOR OR SUBORDINATE TO THE LENDER'S INTEREST EXISTING ON THE DATE
HEREOF TO WHICH LENDER SHALL HAVE CONSENTED TO IN WRITING; (II) IT IS A
CORPORATION DULY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF ITS STATE OF
INCORPORATION AND QUALIFIED AND LICENSED TO DO BUSINESS IN THE JURISDICTION
WHERE THE EQUIPMENT IS OR WILL BE LOCATED; (III) THE NOTE AND THIS AGREEMENT
(THE "COLLATERAL DOCUMENTS") ARE VALID AND ARE ENFORCEABLE IN ACCORDANCE WITH
THEIR RESPECTIVE TERMS SUBJECT TO APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION OR OTHER SIMILAR LAWS AFFECTING
THE ENFORCEABILITY GENERALLY OF THE RIGHTS OF CREDITORS; (IV) THE MAKING AND
PERFORMANCE BY THE BORROWER OF THE COLLATERAL DOCUMENTS, AND ANY RELATED
DOCUMENTS AND TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY DO NOT CONTRAVENE ANY
PROVISIONS OF LAW APPLICABLE TO THE BORROWER AND DO NOT CONFLICT WITH AND WILL
NOT RESULT IN A BREACH OF OR CONSTITUTE A DEFAULT OR REQUIRE ANY CONSENT UNDER,
OR