SEVENTH MODIFICATION AND AMENDMENT AGREEMENT
Exhibit
10.1
THIS SEVENTH MODIFICATION AND AMENDMENT
AGREEMENT (this “Agreement”) is made this 30th day of April, 2009, but is
effective as of March 31, 2009, by and between BAY NATIONAL BANK, a national
banking association (the “Bank”), HEMAGEN DIAGNOSTICS, INC., a Delaware
corporation, and REAGENTS APPLICATIONS, INC., a Delaware corporation
(collectively, the “Borrower”).
Recitals
A. The
Bank and the Borrower entered into a Loan and Security Agreement dated September
26, 2002 (the “Original Loan Agreement”) in connection with the extension of
credit by the Bank to the Borrower.
B. The
Bank and the Borrower entered into a First Modification and Amendment Agreement
dated March 16, 2004 (the “First Amendment”).
C. The
Bank and the Borrower entered into a Second Modification and Amendment Agreement
dated March, 2005 (the “Second Amendment”).
D. The
Bank and the Borrower entered into a third modification and amendment agreement
(which was mistakenly titled “Second Modification and Amendment Agreement”)
dated June 24, 2005 (the “Third Amendment”).
E. The
Bank and the Borrower entered into a Fourth Modification and Amendment Agreement
dated March, 2006 (the “Fourth Amendment”).
F. The
Bank and the Borrower entered into a Fifth Modification and Amendment Agreement
dated March 30, 2007 (the “Fifth Amendment”).
G. The
Bank and the Borrower entered into a Sixth Modification and Amendment Agreement
dated March 31, 2008 (the “Sixth Amendment”). The Original Loan Agreement, as
amended by the First Amendment, Second Amendment, Third Amendment, Fourth
Amendment, Fifth Amendment, Sixth Amendment and this Agreement, is hereafter
referred to as the “Loan Agreement.”
H. The
Borrower has requested the Bank make certain amendments or modifications to the
Loan Agreement, and the Bank is willing to do so upon the express terms and
conditions stated herein.
I. In
general, the Bank has agreed to extend the term of the Line of Credit (subject
to acceleration as provided in the Loan Agreement), subject to the terms and
conditions expressly provided below.
J. All
capitalized terms used in this Agreement not otherwise defined shall have the
meanings set forth in the Loan Agreement.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which is acknowledged, the parties
hereto agree as follows.
1. Amounts
Due; No Defenses. Each Borrower hereby acknowledges and agrees that as of
March 31, 2009, the outstanding principal balance due under the Line of Credit
Note was Four Hundred Seventy-Five Thousand Dollars ($475,000), with an
additional Twenty-Five Thousand Dollars ($25,000) available to be disbursed by
the Bank, and that there are no setoffs, defenses or counterclaims against the
Bank or with respect to the Line of Credit Note or any other document,
instrument or matter now existing, executed, issued or delivered in connection
with the indebtedness evidenced by the Line of Credit Note.
2. Modification.
The Loan Agreement is modified and amended as follows:
(a) Section
2.1.2 of the Loan Agreement is deleted in its entirety and the following
substituted in its stead:
Section 2.1.2. Interest
Rate; Line of Credit Note. Advances under the Line of Credit shall bear
interest at a floating annual rate of interest equal to the interest rate
obtained by adding three-quarters of one percentage point (0.75%) to the Prime
Rate in effect from time to time, but, in any event, the annual rate of interest
shall not be less than five and one-half percentage points (5.5%). Changes in
the applicable interest rate will be made as of the occurrence of changes in the
Prime Rate. The Line of Credit shall be evidenced by, and shall be repaid with
interest in accordance with, the provisions of the Line of Credit Note which
shall be duly executed and delivered by the Borrower and be payable to the order
of the Bank on the date hereof, the terms and conditions of which are
incorporated herein by reference. The date and amounts of each Advance made by
the Bank and each payment made by the Borrower shall be recorded by the Bank on
the books and records of the Bank, but any failure to record such dates or
amounts shall not relieve the Borrower of its obligation of repayment hereunder
or under the Line of Credit Note.
(b) Section
2.1.4 of the Loan Agreement is deleted in its entirety and the following
substituted in its stead:
Section 2.1.4. Repayment
of the Line of Credit. The Borrower shall repay to
the order of the Bank all principal, accrued interest, and all other Obligations
due under the Line of Credit Note when due. The Borrower shall pay to the Bank,
on the first day of each month following a month during which a principal
balance was outstanding under the Line of Credit, accrued interest on the
outstanding and unpaid principal balance of the Line of Credit. Interest shall
be payable monthly following preparation by the Bank of an interest statement
showing interest due through the end of the monthly payment period. In the event
interest for the final days of any period are estimated, the Borrower's account
shall be debited or credited, as the case may be, to reflect actual interest due
through the end of such period. Upon the
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request
of the Borrower, the Bank shall automatically debit the Borrower’s Operating
Account on the due date of, and in the amount of, the interest shown to be due
on each monthly statement. The Borrower shall pay to the Bank the entire
outstanding and unpaid principal balance under the Line of Credit, together with
accrued interest thereon and any fees or charges payable pursuant to the Loan
Documents, on April 1, 2010, the final and absolute due date, or earlier upon
acceleration as provided herein and in the Line of Credit Note. If, however, the
Borrower has failed to renew or to recapitalize its existing bond indebtedness
as of September 30, 2009, the final and absolute due date shall be September 30,
2009, on which date the entire outstanding and unpaid principal balance under
the Line of Credit, together with accrued interest thereon and any fees or
charges payable pursuant to the Loan Documents, shall be due and payable in full
without demand by the Bank.
(c) Section
6.24 of the Loan Agreement is deleted in its entirety and the following
substituted in its stead:
Section 6.24. Minimum
Tangible Net Worth. The Borrower shall at all times maintain a minimum
Tangible Net Worth of at least Two Million Two Hundred Thousand Dollars
($2,200,000).
3. Representations
and Warranties. As an inducement to the Bank to enter into this
Agreement, each Borrower hereby makes the following representations and
warranties to the Bank and acknowledges the Bank’s justifiable reliance thereon:
(a) each Borrower has the power, authority and legal right to execute, deliver
and perform this Agreement and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement; (b) this Agreement has
been duly executed and delivered by each Borrower; (c) the Loan Documents, as
modified and amended herein, are the valid and legally binding joint and several
obligation of the Borrower and are enforceable against each Borrower in
accordance with their terms; (d) all documents furnished to the Bank pursuant to
this Agreement are true and correct; (e) all representations and warranties
contained in the Loan Documents remain true, correct and complete in all
material respects on and as of the date hereof (other than those representations
and warranties which by their express terms speak to an earlier date) as though
made on and as of the date hereof; (f) no Event of Default has occurred and is
continuing under the Loan Agreement; and (g) the execution, delivery and
performance of this Agreement does not and will not violate any Loan Document or
other instrument to which either Borrower is a party or by which either Borrower
or its property is bound.
4. Incorporation
of Recitals. The parties hereby acknowledge the accuracy of the Recitals
and hereby incorporate the Recitals into and make them a part of this
Agreement.
5. Effect of
Agreement. Except as hereby expressly modified, all promissory notes and
all other Loan Documents shall otherwise be unchanged, shall remain in full
force and effect and are hereby expressly approved, ratified and confirmed. The
execution and delivery of this Agreement shall not constitute a novation, shall
not extinguish, terminate, affect or impair the
obligations of the Borrower, and shall not extinguish, terminate, affect or
impair any security, right or remedy of the Bank against the Borrower or the
Borrowers’ property.
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7. Governing
Law. This Agreement shall be governed by the laws of the State of
Maryland, exclusive of its conflict of laws rules, and shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, personal representatives, successors and
assigns.
8. Counterparts;
Electronic Signatures.
This Agreement may be executed in one or more counterparts, each of which
will be fully effective without the others and all of which will collectively be
all of this Agreement, and signatures sent by facsimile or by email (in a .pdf
or comparable mode), and photocopies of such signatures, shall be considered and
treated as originals.
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IN WITNESS WHEREOF, the parties set
their hands and seals as of the day and year first above written.
WITNESS/ATTEST: BAY
NATIONAL BANK
_____________________________ By:/s/▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
(SEAL)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Vice President
HEMAGEN DIAGNOSTICS,
INC.
_____________________________ By:/s/▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
(SEAL)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President &
CEO
REAGENTS APPLICATIONS,
INC.
_____________________________ By:/s/▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
(SEAL)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, CEO
ACKNOWLEDGEMENTS
STATE OF
MARYLAND, CITY/COUNTY OF ______________________, to
wit:
I HEREBY CERTIFY, that on this ____day
of April, 2009, before me, the undersigned Notary Public, personally appeared
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, who acknowledged himself to be the President & CEO of
Hemagen Diagnostics, Inc., a Delaware corporation, known to me (or
satisfactorily proved) to be the person who executed the foregoing instrument,
and acknowledged that he, being authorized so to do, executed the same for the
purposes therein contained as the duly authorized President & CEO of Hemagen
Diagnostics, Inc. by signing the name of Hemagen Diagnostics, Inc. by himself as
President & CEO.
IN WITNESS my hand and Notarial
Seal.
_______________________________
Notary Public
My
Commission Expires: _____________________
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STATE OF
MARYLAND, CITY/COUNTY OF ___________________________, to
wit:
I HEREBY CERTIFY, that on this ____day
of April, 2009, before me, the undersigned Notary Public, personally appeared
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, who acknowledged himself to be the CEO of Reagents
Applications, Inc., a Delaware corporation, known to me (or satisfactorily
proved) to be the person who executed the foregoing instrument, and acknowledged
that he, being authorized so to do, executed the same for the purposes therein
contained as the duly authorized CEO of Reagents Applications, Inc., by signing
the name of Reagents Applications, Inc. by himself as CEO.
IN WITNESS my hand and Notarial
Seal.
_______________________________
Notary Public
My
Commission Expires: ______________________
STATE OF
MARYLAND, CITY/COUNTY OF __________________, to wit:
I HEREBY CERTIFY that on this ____ day
of April, 2009, before me, the undersigned, a Notary Public of the State of
Maryland, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, who acknowledged himself to
be the Senior Vice President of Bay National Bank and that he, as such Senior
Vice President being authorized so to do, executed the foregoing instrument for
the purposes therein contained by signing the name of Bay National Bank by
himself as Senior Vice President.
IN WITNESS my hand and Notarial
Seal.
_______________________________
Notary Public
My
Commission Expires: ______________________
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