EXHIBIT 10.3
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CITIZENS BANK OF MASSACHUSETTS MASTER NOTE
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$2,300,000.00 October 24, 2002
For value received, Able Laboratories, Inc., a corporation duly
organized and existing under the laws of The State of Delaware and having a
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Borrower") hereby promises to pay to the order of
Citizens Bank of Massachusetts, a Massachusetts banking corporation (the
"Bank"), at the office of the Bank located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other address as the holder hereof may designate,
the principal sum of TWO MILLION THREE HUNDRED THOUSAND DOLLARS ($2,300,000.00)
or the aggregate unpaid principal amount of all advances made by the Bank to the
Borrower pursuant to the terms of the Credit Agreement defined below, whichever
is less,, plus interest accrued thereon, in lawful money of the United States of
America in immediately available funds pursuant to the terms of the Credit
Agreement defined below.
This Note is issued pursuant to that certain Credit Agreement of even
date by and between the Borrower and the Bank (as from time to time amended,
restated, supplemented or otherwise modified, the "Credit Agreement") and
constitutes a 'Master Note' as provided therein. Capitalized terms used herein
that are not defined shall have the same meanings assigned to such terms in the
Credit Agreement. The Bank is entitled to the benefit and security of the Credit
Agreement and all of the Related Agreements referred to therein. Reference is
hereby made to the Credit Agreement, the terms of which are incorporated herein
by reference, for a statement of all of the terms and conditions under which the
Advances under the Non-Restoring Credit Facility evidenced by, among other
things, this Note, are made and are to be repaid. In the event of any
inconsistency between the terms of the Credit Agreement and this Note, the terms
of the Credit Agreement shall govern and control.
Interest on the unpaid principal balance of each Advance evidenced by
this Note shall accrue at the rate selected by the Borrower in accordance with
the terms and conditions of the Credit Agreement. Interest shall accrue at a
variable rate as a Prime Rate Loan, a LIBOR Advantage Rate Loan, or a LIBOR Rate
Loan, as may be selected by the Borrower in accordance with the terms and
conditions of the Credit Agreement.
This Note shall be payable as follows:
(a) Commencing on December 5, 2002 and on the like day of each
succeeding month thereafter, the Borrower shall make eighteen (18) consecutive
monthly payments of interest on the unpaid principal balance of this Note
calculated and payable as set forth in the Credit Agreement; and
(b) Commencing on May 5, 2004 and on the like day of each month
thereafter, the Borrower shall make sixty (60) payments of principal and
interest, with the first fifty-nine (59) of such payments to consist of
principal in the amount of one sixtieth (1/60th) of the outstanding principal
balance of this Note as of April 24, 2004, plus accrued interest on the unpaid
principal balance of this Note calculated and payable as set forth in the Credit
Agreement, and the final payment to consist of the entire unpaid principal
balance, plus accrued interest thereon, unless sooner paid, to be made on April
24, 2009.
Interest shall be computed on the basis of a three hundred sixty (360)
day year and actual days elapsed. Upon the occurrence of an Event of Default or
after maturity or after judgment has been rendered on this Note, at the option
of the Bank, the Borrower's right to select pricing options shall cease and the
unpaid principal of this Note shall accrue interest at a rate which is equal to
the Default Rate as set forth in the Credit Agreement. Time is of the essence
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hereof. If the entire amount of any required principal and/or interest is not
paid in full within ten (10) days after the same is due, the Borrower shall pay
to the Bank a late fee equal to five percent (5%) of the required payment, with
a minimum late charge of $35.00. The date and amount of each Advance under the
Non-Restoring Credit Facility made by the Bank to the Borrower, the rates of
interest applicable thereto and each payment made on account of the principal
thereof shall be recorded by the Bank on its books.
The Borrower may prepay this Note, or portions thereof, as provided in
the Credit Agreement. The Credit Agreement also sets forth the terms and
conditions governing Borrower's right to elect to convert or to renew the
principal balance of this Note into another type of Loan.
If, at any time, the aggregate principal amount outstanding under this
Note shall exceed the Subsequent Advance Amount, the Borrower shall immediately
prepay so much of the outstanding principal balance, together with accrued
interest on the portion of principal so prepaid, as shall be necessary in order
that the unpaid principal balance, after giving effect to such prepayments,
shall not be in excess of the Subsequent Advance Amount.
All payments, including any prepayments as set forth above, shall, at
the option of the Bank, be applied first to the payment of all costs and
expenses incurred by the Bank arising out of the loan transaction evidenced by
this Note for which the Borrower is responsible pursuant to the Credit Agreement
and which have not been paid or reimbursed to the Bank, then to accrued interest
on the unpaid principal due under this Note, and the balance on account of the
principal due under this Note. All payments shall be in lawful money of the
United States of America in immediately available funds.
Upon the happening of any Event of Default, as defined in the Credit
Agreement, other than an Event of Default described in Sections 9.7 or 9.8 of
the Agreement, the Bank may (i) declare the then outstanding principal of this
Note and all interest accrued thereon and all applicable late and other charges
and all other liabilities and obligations of the Borrower to the Bank to be
immediately due and payable, whereupon the same shall become immediately due and
payable, and/or (ii) terminate any obligation of the Bank to make Advances under
the Credit Agreement, all of the foregoing without presentment or demand for
payment, notice of non-payment, protest or any other demand or notice of any
kind, all of which are expressly waived by the Borrower. Failure to exercise
either or both such options shall not constitute a waiver of the right to
exercise the same in the event of any subsequent default. Notwithstanding the
foregoing, upon the occurrence of an Event of Default described in Section 9.7
or Section 9.8 of the Credit Agreement, (A) any obligation of the Bank to
advance pursuant to the Non-Restoring Credit Facility shall automatically
terminate, and (B) the outstanding principal balance of this Note and all
interest accrued thereon and all applicable late and other charges and all other
liabilities and obligations of the Borrower to the Bank shall become
automatically due and payable without presentment or demand for payment, notice
of non-payment, protest or any other demand or notice of any kind, all of which
are expressly waived by the Borrower.
The Borrower agrees to pay all reasonable costs, including reasonable
attorneys' fees, costs relating the collection, or enforcement of this Note or
any guaranty of this Note or in any litigation arising out of the transactions
of which this Note or any guaranty of this Note is a part.
Upon the occurrence of an Event of Default, the Borrower hereby grants
to the Bank a lien, security interest, and right of set off as security for all
of the Borrower's liabilities and obligations to the Bank, whether now existing
or hereafter arising, upon and against all the deposits, credits, collateral and
property of the Borrower now or hereafter in the possession, custody, or control
of Citizens Financial Group, Inc. or any entity under the control of it or in
transit to any of them. At any time after the occurrence of an Event of Default,
without demand or notice, the Bank may set off the same or any part thereof and
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apply the same to any liability or obligation of the Borrower even though
unmatured and regardless of the adequacy of any other collateral securing the
loan evidenced hereby. TO THE EXTENT PERMITTED BY LAW, ANY AND ALL RIGHTS TO
REQUIRE THE BANK TO EXERCISE ITS REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL
WHICH SECURES THE LIABILITIES PRIOR TO EXERCISING ITS RIGHT OF SET OFF WITH
RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER, ARE HEREBY
VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVED.
THE BANK AND THE BORROWER MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY AND IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS NOTE, ANY DOCUMENT,
INSTRUMENT OR AGREEMENT EVIDENCING, GOVERNING OR SECURING THIS NOTE, INCLUDING
THE AFORESAID CREDIT AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTION OF ANY PARTY. THIS WAIVER
CONSTITUTES A MATERIAL INDUCEMENT FOR THE BANK TO ACCEPT THIS NOTE AND ENTER
INTO THE LOAN TRANSACTION EVIDENCED BY THIS NOTE.
THE BORROWER (1) ACKNOWLEDGES THAT THE ADVANCES EVIDENCED BY THIS NOTE
ARE PART OF A COMMERCIAL TRANSACTION AND (2) TO THE EXTENT PERMITTED BY ANY
STATE OR FEDERAL LAW, THE BORROWER WAIVES ANY RIGHT IT MAY HAVE TO PRIOR NOTICE
OF AND A HEARING ON THE RIGHT OF ANY HOLDER OF THIS NOTE TO ANY REMEDY OR
COMBINATION OF REMEDIES THAT ENABLES SAID HOLDER, BY WAY OF ATTACHMENT, FOREIGN
ATTACHMENT, GARNISHMENT OR REPLEVIN, TO DEPRIVE BORROWER OF ANY OF ITS PROPERTY,
AT ANY TIME PRIOR TO FINAL JUDGMENT IN ANY LITIGATION INSTITUTED IN CONNECTION
WITH THIS NOTE.
All agreements between the Borrower and the Bank are hereby expressly
limited so that in no contingency or event whatsoever, whether by reason of
acceleration of maturity of the indebtedness evidenced hereby or otherwise,
shall the amount paid or agreed to be paid to the Bank for the use or the
forbearance of the indebtedness evidenced hereby exceed the maximum permissible
under applicable law. As used herein, the term "applicable law" shall mean the
law in effect as of the date hereof; provided, however, that in the event there
is a change in the law which results in a higher permissible rate of interest,
then this Note shall be governed by such new law as of its effective date. In
this regard, it is expressly agreed that it is the intent of the Borrower and
the Bank in the execution, delivery and acceptance of this Note to contract in
strict compliance with the laws of The Commonwealth of Massachusetts from time
to time in effect. If, under or from any circumstances whatsoever, fulfillment
of any provision hereof at the time of performance of such provision shall be
due, shall involve transcending the limit of such validity prescribed by
applicable law, then the obligation to be fulfilled shall automatically be
reduced to the limits of such validity, and if under or from circumstances
whatsoever the Bank should ever receive as interest an amount which would exceed
the highest lawful rate, such amount which would be excessive interest shall be
applied to the reduction of the principal balance evidenced hereby and not to
the payment of interest. This provision shall control every other provision of
all agreements between the Borrower and the Bank. If any provision of this Note
shall, to any extent, be held invalid or unenforceable, then only such provision
shall be deemed ineffective and the remainder of this Note shall not be
affected.
The Bank may at any time pledge all or any portion of its rights under
the loan documents including any portion of this Note to any of the twelve (12)
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Federal Reserve Banks organized under Section 4 of the Federal Reserve Act, 12
U.S.C. Section 341. No such pledge or enforcement thereof shall release the Bank
from its obligations under any of the loan documents.
The Bank shall have the unrestricted right at any time and from time to
time, and without the consent of or notice to the Borrower, to grant to one or
more banks or other financial institutions (each, a "Participant") participating
interests in the Bank's obligation to lend hereunder and/or any or all of the
loans held by the Bank hereunder. In the event of any such grant by the Bank of
a participating interest to a Participant whether or not upon notice to the
Borrower, the Bank shall remain responsible for the performance of its
obligations hereunder and the Borrower shall continue to deal solely and
directly with the Bank in connection with the Bank's rights and obligations
hereunder. The Bank may furnish any information concerning the Borrower in its
possession from time to time to prospective Participants, provided that the Bank
shall require any such prospective Participant to agree in writing to maintain
the confidentiality of such information.
The Borrower waives diligence, demand, presentment for payment, notice
of nonpayment, protest and notice of protest, and notice of any renewals or
extensions of this Note, and all rights under any statute of limitations, and
agrees that the time for payment of this Note may be extended at the Bank's sole
discretion, without impairing the Borrower's liability hereon, and the Borrower
further consents to the release of all or any part of the security for the
payment hereof at the discretion of the Bank, or the release of any party liable
for this obligation without affecting the liability of the other parties hereto.
Any delay on the part of the Bank in exercising any right hereunder shall not
operate as a waiver of any such right, and any waiver granted for one occasion
shall not operate as a waiver in the event of any subsequent default.
This Note shall bind the heirs, executors, administrators, successors
and assigns of each Borrower and shall inure to the benefit of the Bank, its
successors and assigns.
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This Note is executed as a sealed instrument and shall be governed by
and construed in accordance with the laws of The Commonwealth of Massachusetts.
WITNESS: ABLE LABORATORIES, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: President
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