Exhibit 10.34
LOAN AGREEMENT
AGREEMENT entered into this 31st day of March, 2000 by and between Boston
Biomedica, Inc., a corporation organized pursuant to the laws of the
Commonwealth of Massachusetts with a principal place of business at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ("Borrower") and COMMERCE BANK & TRUST
COMPANY, a Massachusetts banking corporation with a principal place of business
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ("Lender").
WHEREAS, Borrower desires to borrow a total of Two Million Nine Hundred
Thousand and 00/100 Dollars ($2,900,000.00) from the Lender to provide Two
Million Five Hundred Thousand and 00/100 ($2,500,000.00) Dollars in working
capital to the Borrower and Four Hundred Thousand and 00/100 ($400,000.00)
Dollars to be used to acquire and renovate real property at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ (the "Stated Purpose") to be secured by real
property located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ and,
if and when purchased by Borrower the real property at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ (hereinafter collectively the "Premises");
NOW, THEREFORE, the parties mutually agree as follows:
I. LOANS.
A. AMOUNT.
Lender hereby agrees to lend to Borrower the sum of Two Million Nine
Hundred Thousand and 00/100 Dollars ($2,900,000.00) to be evidenced by a
promissory note described in Section II(B)(1)(a) below, such loan to be upon the
terms and conditions set forth in this agreement (the "Loan"). Borrower shall
borrow Two Million Five Hundred Thousand and 00/100 ($2,500,000.00) Dollars this
date and the balance of Four Hundred Thousand and 00/100 ($400,000.00) if
Borrower exercises its right to purchase the real property at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
and upon the conditions set forth in a commitment letter of February 24, 2000
from Lender to Borrower.
B. USE OF PROCEEDS.
Borrower agrees to use the loan proceeds solely for the Stated Purpose.
II. AGREEMENTS.
A. GENERAL PROVISIONS.
Capitalized terms not otherwise defined herein shall have the respective
meanings
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assigned to them in the Loan Documents (as defined below) where they are
defined. In the event of any inconsistencies or conflicts between any of the
other Loan Documents in the provisions hereof, then the terms of this agreement
shall govern.
B. LOAN DOCUMENTS.
1. Simultaneously with the execution of this Agreement, the Borrower
shall execute and deliver agreements in form and substance satisfactory to the
Lender and its counsel, to reflect the terms and conditions of this Agreement.
Such documents shall include, without limitation, the following documents of
even date herewith:
(a) NOTE. Borrower shall execute and deliver a Promissory Note in the
form attached hereto as EXHIBIT A, incorporated herein by reference (the
"Note").
(b) MORTGAGE. Borrower shall execute and deliver a mortgage and
security agreement relating to the Premises (the "Mortgage"). The real property
covered by the Mortgage is referred to as the "Mortgaged Premises" and the
personal property in which a security interest is granted by the Mortgage shall
be the "Collateral". Collectively, the Mortgaged Premises and the Collateral;
shall be referred to as the "Mortgaged Property".
(c) COLLATERAL ASSIGNMENTS. Borrower shall execute and deliver:
(i) a Collateral Assignment of Leases and Rents with respect
to the Mortgaged Property (the "Lease Assignment"); and
(ii) a Collateral Assignment of Licenses and Permits with
respect to the Mortgaged Property, in conjunction with the
purchase of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, as set forth above, (the
"Permit Assignment")
(Collectively, the Lease Assignment and the Permit Assignment shall be referred
to as the "Conditional Assignments".)
2. This Agreement, the Note, the Mortgage, the Conditional Assignments,
and each of the documents, agreements and writings executed and delivered in
connection herewith or therewith or with regard thereto, including, without
limitation, the documents executed in connection with the Loan, as each may be
further amended, supplemented, modified or replaced, are collectively referred
to herein as the "Loan Documents".
3. The word "Entity" includes any person, trust, partnership,
proprietorship, corporation, government, unit of any government, or any other
association.
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4. The word "Obligations" is intended to be used in its most
comprehensive sense. Obligations include any and all advances, debts, and
Liabilities of the Borrower to Lender, previous, now, or hereafter made,
incurred or created, whether voluntary or involuntary, whether as the result of
loans, other credit transactions, imposed by law or however arising, whether due
or not due, absolute or contingent, liquidated or unliquidated, voluntary or
involuntary, whether or not such Obligations are evidenced by a writing, whether
or not such Obligations arise from the sale of goods, the loaning of money, or
otherwise, whether or not such Obligations are presently contemplated by the
parties, or whether Borrower is liable individually or jointly with others,
including without limitation the loan evidenced by the Note.
C. REPRESENTATIONS. WARRANTIES AND COVENANTS.
The Borrower represents, warrants and covenants the following:
1. NO NOTICE OF VIOLATIONS. Neither the Borrower, nor the management
agent or similar party for the Mortgaged Property, has received any notice or
communication (i) from any public authority that the Mortgaged Property does not
comply with zoning, environmental or subdivision laws or that there exists any
condition which violates any municipal, county, state or federal law, rule or
regulation; (ii) from any insurance carrier of the Mortgaged Property regarding
any dangerous, illegal or other condition requiring any corrective action; (iii)
regarding any litigation or proceeding, pending or threatened, against or
relating to the Mortgaged Property; (iv) regarding any taking, condemnation or
assessment, actual or proposed, with respect to the Mortgaged Property; or (v)
regarding any hazardous materials (as defined in any relevant governmental law
and/or regulation) on the Mortgaged Property.
2. MORTGAGE REPRESENTATIONS. All representations and warranties contained
in the Mortgage, the Note, and the other Loan Documents are true, accurate and
complete in all material respects on the date hereof as if made and incorporated
by reference herein.
3. PRIORITY LIEN. The Mortgage secures the Note, and such security is and
shall remain superior to all other mortgages, liens and encumbrances on the
Mortgaged Property.
4. NO AGREEMENT. As of the date hereof, there are no agreements affecting
or relating to the Mortgaged Property and no balances due for any goods,
services or labor supplied to or for the benefit of the Mortgaged Property,
other than those relating to the normal operation of the Mortgaged Property,
which have been contracted for by or on behalf of the Borrower or any management
agent, disclosed to Lender in writing prior to the execution of this agreement
and listed on EXHIBIT B, attached hereto and incorporated herein by reference.
To the extent any claims are made against the Lender or the Mortgaged Property
as a result of any such agreement, the Borrower shall pay such claims promptly
when due.
5. AUTHORITY. The Borrower has taken all requisite action necessary to
effect this
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Agreement and the amendments and the other documents, instruments, agreements
and certificates to be executed in connection with and pursuant to this
Agreement and the terms, conditions and provisions contemplated herein and
therein. All actions have been duly taken to authorize and direct the officer or
officers of Borrower to execute and deliver this Agreement and all documents,
instruments, agreements and certificates contemplated herein and to carry out
the terms, conditions, provisions and agreements contemplated herein and
therein. The Borrower and the individual(s) signing on behalf of Borrower, have
the full right, power and authority to execute and deliver this Agreement, all
documents, instrument and agreements contemplated herein and all terms,
conditions and provisions of this Agreement. This document and the delivery and
performance of the Loan Documents are within Borrower's corporate powers, have
been duly authorized by vote of the Board of Directors and (if legally required)
by Borrower's Stockholders, and do not violate the terms of Borrower's Articles
of Organization, its by-laws, or of any indenture, promissory note, agreement,
undertaking, arbitration award, judgment, court decision, court order, statute,
regulation, or governmental order to which Borrower is a party or by which it is
or will become bound or affected. All necessary authorizations by all Entities
have been procured. The loan Documents are valid and binding in accordance with
their terms and are neither voidable nor void.
6. NO CONFLICT OR DEFAULT. The execution and delivery of this Agreement
and all instruments, agreements and documents contemplated herein do not and
will not conflict with, and are not and will not be in violation of, and do not
and will not constitute a default under any mortgage, deed of trust or other
agreement or instrument to which the Borrower is a party or by which any of them
is bound, or any statute, rule or regulation, order, injunction or decree.
7. FINANCIAL STATEMENTS. The financial statement of the Borrower most
recently provided to Lender (the "Financial Statements") is true, accurate and
complete and fairly present the financial condition of the Borrower as of the
date thereof, and there has been no material change in the financial condition
of the Borrower from the date thereof to the date hereof. The operating
statements for the Mortgaged Property most recently delivered to Lender are
true, accurate and complete and fairly present the operations of the Mortgaged
Property, and there has been no material change in the operations of the
Mortgaged Property from the date thereof to the date hereof.
8. COUNSEL. The Borrower has entered into this Agreement freely after
consultation with competent counsel concerning the purpose and effect of this
Agreement and the other Loan Documents and is entering into this Agreement and
the other Loan Documents as its free act and deed.
9. BANKRUPTCY. The Borrower has never (i) commenced a voluntary
proceeding seeking relief with respect to itself, or its debts, under any
bankruptcy, insolvency or other similar law, (ii) sought appointment of a
trustee, receiver, liquidator or other similar official for itself or any part
of its assets, (iii) consented to any of the foregoing in any involuntary
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proceeding against it, (iv) generally not paid its debts as they became due, (v)
admitted in writing its inability to do so, (vi) made an assignment for the
benefit of creditors, (vii) offered to or entered into any composition,
extension, reorganization or other agreement or arrangement with its creditors,
or (viii) had an involuntary proceeding commenced against it seeking relief with
insolvency or similar law, or seeking appointment of a trustee, receiver,
liquidator or similar official for it or any part of its assets.
10. MORTGAGED PROPERTY.
(a) There are no service contracts, management agreements or other
agreements or understandings relating to the Mortgaged Property except as set
forth on EXHIBIT C attached hereto.
(b) No rent has been paid by any tenant or occupant at the Mortgaged
Property for more than one (1) month in advance, and the date through which each
lessee or occupant at each of the Mortgaged Property has been paid rent is set
forth on the Rent Roll.
(c) All security deposits and last months' rents received from
lessees or occupants at the Mortgaged Property have at all times, and will at
all times, be held by the Borrower in accordance with all applicable laws.
11. PLACE OF BUSINESS AND RECORDS. Borrower has no place of business other
than that shown on the first page of this document (the "Business Address") and
the Mortgaged Property. Borrower keeps its records concerning accounts and
contract rights at the Business Address and any other property at one of such
places of business.
12. CORPORATION, QUALIFIED AND IN GOOD STANDING. Borrower is a corporation
duly organized and existing in good standing under the laws of the Commonwealth
of Massachusetts, and is duly qualified to do business in good standing under
the laws of each state whether the nature of the business done or property owned
requires such qualification.
13. CHANGES IN FINANCIAL STATEMENTS. Since the date of the financial
statements referred to in the section called "Financial Statements", there has
not been:
(a) any change in the condition of Borrower's assets or Liabilities,
other than immaterial changes in Borrower's ordinary course of business;
(b) any material depletion of cash or decrease of working capital;
(c) any material damage, destruction or loss, whether or not covered
by insurance, of Borrower's property or business;
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(d) any direct or indirect declaration of or establishment of a
reserve with respect to any dividend, any distribution with respect to
Borrower's stock, or any redemption, purchase, or acquisition of any interest in
Borrower's stock;
(e) any materially adverse: (i) controversy or problem with any labor
organization or employees; (ii) problems involving any Federal, State, or local
governmental agencies; or (iii) other event or condition affecting the business
or properties of Borrower.
(f) any existence of or release of hazardous waste on any of the
Mortgaged Property.
14. NO UNDISCLOSED LIABILITIES. Borrower has no Liabilities, material in
the aggregate, which are not disclosed in the Financial Statements.
15. PROPERTY. Borrower owns all of the Mortgaged Property and has full,
good, clear and marketable title thereto, free and clear of all liens,
encumbrances, and security interests, except in favor of Lender.
16. STOCK, BOOKS AND RECORDS. All of Borrower's issued and outstanding
capital stock has been properly issued. All Borrower's books and records
(including, but not limited to, its minute books, by-laws and books of account)
are accurate and current without misleading omissions. All such books and
records will be accurately and currently maintained without misleading
omissions.
17. LICENSES, FRANCHISES AND APPROVALS. Borrower has obtained all
licenses, franchises and approvals required by any Entity for the unrestricted
and lawful operation of Borrower's business, including without limitation the
operation of the Mortgaged Property, and properties as now conducted and as
contemplated for the future, without infringing any Entity's rights.
18. ACCOUNTS. All accounts and contract rights held by Borrower are and
will continue to be valid and enforceable and are collectible in full without
discount, offset or defense in the ordinary course of business.
19. COMPLIANCE WITH LAWS. Borrower is in compliance with all applicable
Laws.
20. COMPLIANCE WITH SUPERFUND AND HAZARDOUS WASTE LAWS.
(a) The Borrower warrants and represents that there is no "oil",
"hazardous materials", "hazardous wastes" or "hazardous substances"
(collectively, the "Materials"), as such terms are defined under the
Comprehensive Environmental Response, Compensation, and
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Liability Act, 42 U.S.C. Section 9601, ET SEQ., as amended, the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 ET SEQ., as
amended, and the regulations promulgated thereunder, and all applicable state
and local laws, rules and regulations, including, without limitation,
Massachusetts General Laws, Chapters 21C and 21E, (collectively the "Superfund
and Hazardous Waste Laws") in or on the Mortgaged Property, except those for
which Lender has given prior written approval, and then only to the extent that
the presence of Materials is (i) properly licensed and approved by all
appropriate governmental officials and in accordance with all applicable laws
and regulations, and (ii) in compliance with any terms and conditions stated in
the prior written approval issued by the Lender.
(b) The Borrower covenants to comply with the requirements of the
Superfund and Hazardous Waste Laws and to promptly notify Lender of the presence
of any Materials in or on the Mortgaged Property. The Borrower hereby covenants
to protect, indemnify, and hold Lender harmless from and against any and all
losses, costs, damages and liabilities, including attorneys' fees and costs of
litigation, suffered or incurred by Lender on account of the presence of any
such Materials in or on the Mortgaged Property, including, without limitation,
any such losses, costs, damages or liabilities arising from a violation of any
of the Superfund or Hazardous Waste Laws.
(c) In addition to the Events of Default set forth in Section II(W)
of this Loan Agreement, the Borrower shall be deemed to be in default hereunder
upon the occurrence of any of the following Events of Default:
(i) if the Borrower fails to comply with any of the
covenants and representations set forth in this Section
II(C)(21);
(ii) if at any time any representation or warranty made by
the Borrower in this Section II(C)(21) shall be incorrect;
(iii) if any Materials become present in or on the Mortgaged
Property during the term of this Loan, except those for
which Lender has given prior written approval, and then
only to the extent that the presence of the Materials is
(1) properly licensed and approved by all appropriate
governmental officials in accordance with all applicable
laws and regulations, and (2) in compliance with any terms
and conditions stated in the prior written approval issued
by the Lender;
(iv) if at any time there is a discharge, deposit, injection,
dumping, spilling, leaking, incineration or placing of any
Materials into or on the Mortgaged Property; or
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(v) if at any time, the use, generation, treatment, storage
or disposal of any Materials on the Mortgaged Property is
in violation of applicable laws and regulations.
(d) Notwithstanding the foregoing, however, if the Borrower (i)
promptly gives the Lender notice of the presence of any Materials in or on the
Mortgaged Property; (ii) complies with any notice requirements imposed by any of
the Superfund and Hazardous Waste Laws; (iii) promptly commences to arrange for
the cleanup of such Materials and/or containment of Materials where there is a
threat of release; and (iv) demonstrates to the Lender's satisfaction that the
Borrower has the financial resources to perform the cleanup and/or containment,
as the case may be, through to completion by using best efforts, the Lender
agrees not to (a) exercise any action to cure Borrower's default, (b) foreclose
the Mortgage and Security Agreement, (c) accelerate payment under the Note, or
(d) avail itself of any other remedies available to the Lender, unless in the
Lender's sole judgment the exercise of any such remedies is necessary to protect
the security of the Loan.
THE REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT ARE PART OF THE
CONSIDERATION INDUCING THE LENDER TO ENTER INTO THIS AGREEMENT, AND THE
AGREEMENTS BY THE LENDER CONTAINED IN OR GIVEN PURSUANT TO THIS AGREEMENT ARE
EXPRESSLY CONTINGENT UPON THE ACCURACY OF THE FOREGOING REPRESENTATIONS,
WARRANTIES AND COVENANTS CONTAINED IN THIS SECTION. IN THE EVENT ANY SUCH
PROVISION IS MATERIALLY FALSE OR MISLEADING, THEN THE BORROWER SHALL INDEMNIFY
AND HOLD THE LENDER HARMLESS FROM ALL LIABILITY, HARM, COSTS AND EXPENSES
ARISING THEREFROM (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND COSTS.)
D. BORROWER'S AGREEMENTS.
1. TAXES. Subject to Lender's escrow requirements provided for in the
Mortgage, Borrower will promptly pay when due all taxes and assessments upon the
Mortgaged Property, upon its use and operation, with respect to this document,
or the granting, recording, or perfection thereof, or upon any note or notes or
other negotiable instrument evidencing the Obligations, including without
limitation the Loan. Borrower will also pay all real and personal property
taxes, assessments and charges, and all franchise, income, unemployment, old age
benefit, withholding, sales, license, and other taxes assessed or levied against
it or payable by it. All taxes will be paid in a timely manner, and in any event
at such time and in such manner as to prevent any penalty from occurring or any
lien or charge from attaching to its property. Borrower will, at the request of
Lender, promptly furnish Lender the bills for all paid taxes and the receipts
showing payment of them.
At the option of Lender, Borrower will furnish to Lender proof satisfactory
to Lender that deposits for FICA and withholding taxes have been made as and if
required. Such proof will be furnished within five days after the accrual of
Borrower's duty to make such deposits.
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2. ADVERSE LIENS AND ENCUMBRANCES. Borrower will keep all Mortgaged
Property free from all adverse liens, security interests, mortgages, and
encumbrances, whether or not having priority over Lender's security interest.
Borrower will not execute or become bound by any certificate, document, or
agreement which in any way conflicts with this document, or which would result
in the acquisition by a third party of any interest having priority over the
Mortgaged Property. Borrower will not execute or allow any adverse financing
statement, mortgage, or notice of lien covering any of the Mortgaged Property to
be on file in any public office.
3. NO UNREASONABLE COMPENSATION. Borrower will not pay unreasonable
compensation to any of its officers, directors or employees.
4. DIVIDENDS AND STOCK TRANSACTIONS. The Borrower will pay no dividends
either in cash or kind on any class of its capital stock. Borrower will make no
distribution on account of its stock, nor redeem, purchase or otherwise acquire,
directly or indirectly, any of its stock.
5. SECURITIES, PURCHASES, INVESTMENTS, BORROWING. Borrower will not
purchase or invest in any stock or securities of any Entity. Borrower will not
make investments in or become or continue to be a creditor or debtor of any
entity except for reasonable deposits under purchase contracts in the ordinary
course of business, and sales of finished goods in the ordinary course of
business on normal credit terms to customers.
6. TRANSACTIONS WITH INTERESTED PERSONS. Borrower will not enter into any
unreasonable transaction or agreement with persons or organizations who hold
Borrower's stock, or who are officers, directors, or employees of Borrower, or
who are controlling persons of Borrower as the term "controlling person" is used
in the Securities Act of 1933 and the Securities Exchange Act of 1934. Whether a
transaction or agreement is unreasonable is intended to be determined in
accordance with past practice.
7. NO TRANSACTIONS OTHER THAN IN THE ORDINARY COURSE. Borrower will not
enter into any transaction other than in the ordinary course of business.
8. OTHER LIABILITIES. Borrower will not incur, create, assume, suffer,
permit to continue, or be liable for any liabilities whatsoever, other than: (a)
Obligations to Lender, (b) existing liabilities to Fleet National Bank and (c)
current liabilities arising in the ordinary course of business, not including
borrowing.
9. CORPORATE EXISTENCE. Borrower will maintain its existence as a
Massachusetts corporation in good standing and will promptly and duly qualify to
do business in any jurisdiction in which qualification is required. Borrower
will not alter or amend its capital structure, transfer any interest in treasury
stock, issue any authorized but unissued stock, increase its authorized stock,
or alter in any way the rights of its existing stockholders.
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10. MERGERS. Borrower will not merge or consolidate or be merged with or
into any other corporation or Entity.
11. FINANCING STATEMENTS. Borrower hereby agrees to execute and deliver to
Lender any financing statement, continuation statement or other notice which
Lender believes to be necessary or desirable to protect its interest under this
agreement. Borrower will reimburse Lender for the costs of filing or recording
such statements or notices.
12. SUPPLEMENTAL AGREEMENTS. Borrowers will execute or endorse and deliver
to Lender supplemental agreements, or documents in such forms as Lender may
require, to effectuate the purposes of this agreement.
13. RECORDS. Borrower will maintain records relating to the Mortgaged
Property clearly identifying the Mortgaged Property and its location. In case of
accounts receivable, the records will show the name and address of the Entity
owing the receivable to the Borrower, the amount owed, and the date the debt was
incurred. Borrower will maintain such evidence of accounts receivable as will
allow their proof in a court of competent jurisdiction. Borrower will maintain
financial records, including, but not limited to, balance sheets and statements
of profit and loss.
All records shall be in form and contents satisfactory to Lender. Borrower
will also maintain such other records as it is required to maintain by law. All
records will be maintained in accordance with generally accepted accounting
principles, consistently applied. They will truly, clearly, and accurately
reflect the events, transactions or information they purport to reflect, without
misleading statements or omissions. They will be maintained promptly and
currently in a complete and businesslike manner.
14. NOTIFICATION OF CHANGES. Borrower will promptly notify Lender in
writing of (a) any change in the location of any place of business or of its
name; (b) its intention to change the location of any Collateral; (c) the
establishment of any new place of business; (d) its intention to change the
location of the office in which its records described in this document are kept;
(e) any material adverse change in Borrower's financial condition; (f) the
threat or initiation of any claim, assessment, arbitration proceeding or
litigation which might have a material adverse effect upon Borrower, its or
his/her financial condition, or the Mortgaged Property if adversely determined;
and (g) the occurrence of any event which does or might constitute a default
thereunder. "Promptly" means as soon as possible, but in no event more than two
business days.
15. COMPLIANCE WITH OTHER AGREEMENTS. Borrower will comply with the terms
and conditions of any other agreement between it and Lender. Borrower will also
comply with the terms and conditions of any agreement to which it is bound, even
if Lender is not a party.
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16. COMPLIANCE WITH LAWS. Borrower will comply with all applicable laws.
17. MAINTENANCE OF CURRENT BUSINESS. Borrower will not change its current
business without the prior written approval of Lender.
18. NO CHANGE IN OFFICERS AND DIRECTORS. Borrower shall not remove ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ as its Chief Executive Officer without thirty days prior written
notice to Lender. Lender may, at its sole discretion, declare any change in
Borrower's CEO to be a default hereunder by written notice to Borrower sent
within thirty days after the receipt by Lender of Borrower's notice of change.
19. APPLICATION OF PROCEEDS. Lender may apply proceeds of the Mortgaged
Property, recoveries with respect to the Obligations, and payments to one or
more of the Obligations and among principal or interest as Lender in its sole
discretion may determine.
20. APPRAISALS. At Lender's option, in the Event of a Default by Borrower
or a change in Bank regulations requiring an appraisal, Lender may obtain either
an MAI appraisal or an update to an existing appraisal (the selection of which
shall be made in the Lender's discretion) for the Mortgaged Property, each such
appraisal or update shall be prepared by an appraiser selected by the Lender and
shall be at the Borrower's sole cost and expense. The Borrower shall cooperate
with all appraisers performing any such appraisal (or any other appraisal of the
Premises), which cooperation shall include, without limitation, allowing
appraisers access to the Mortgaged Property and to the Borrower's books and
records and to all other information requested by such appraisers. Such
appraisals will be the property of the Lender only, and Lender shall have no
obligation to disclose such appraisal to Borrower or any other person or entity.
Unless an Event of Default shall occur and be continuing, notwithstanding
anything to the contrary contained herein, Lender may require a maximum of one
appraisal per year.
E. ACCESS.
Upon reasonable notice to the Borrower, the Lender and its employees,
agents, representatives and contractors shall have access to the Mortgaged
Property at any time and from time to time for the purpose of inspecting,
testing, and conducting engineering and environmental studies thereon and
thereat.
F. RESERVATION OF RIGHTS.
If any Event of Default occurs, the Lender reserves any and all of its
rights and remedies which it may have under the Loan Documents or at law or in
equity.
G. COSTS OF COLLECTION: COST OF AMENDING AND ADMINISTERING LOAN.
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If an Event of Default occurs, then the Borrower shall be responsible to
pay, on demand, all costs and expenses (including, without limitation,
attorneys' fees and costs) that the Lender incurs in connection with the
collection and enforcement of all obligations owed or required to be performed
under this Agreement and the other Loan Documents.
The Loan shall be made without cost to the Lender. The Borrower shall pay
to Lender any and all, commissions, costs, charges, taxes and other expenses
incurred by Lender in connection with the Loan (including, without limitation,
fees and disbursements of Lender's counsel and the cost of appraisals) and
thereafter any such fees, commissions, costs, charges taxes and expenses
incurred by Lender from time to time in connection with the making,
administering and collecting of the Loan, including, but not limited to, fees
and disbursements of Lender's counsel (including counsel providing title reports
and title policies or endorsements when applicable), appraisal fees, fees of the
Lender's consultants, engineers and inspectors, fees and charges for surveys,
costs of audits of books and records of Borrower, title insurance charges,
mortgage taxes, and all recording and filing fees and charges.
H. FURTHER ASSURANCES.
The Borrower agrees to execute and deliver or cause to be executed and
delivered from time to time such additional instruments, documents and
agreements as the Lender may reasonably request to carry out the terms of this
Agreement, or to further evidence, secure, effectuate or perfect its obligations
to the Lender under the Loan Documents or the Lender's interest or priority in
the collateral granted to secure such obligations, including, without
limitation, any subordination agreements necessary to insure the Mortgage and
the Conditional Assignments and all amounts secured or to be secured thereby are
and shall be superior to all mortgages, liens and encumbrances on the Mortgaged
Property.
I. WAIVER: MODIFICATION.
In no event shall any action, inaction or waiver by the Lender on any one
or more occasions constitute a waiver of any past, present or future defaults by
the Borrower under this Agreement or the other Loan Documents. To be effective
against Lender, a waiver, modification or amendment with respect to this
Agreement or any other Loan Document must be executed in writing by a
duly-authorized officer of Lender and expressly specify the exact defaults or
provisions which are being waived. In no event shall any oral agreements,
promises, or the like be effective to modify, terminate, extend or otherwise
amend this Agreement or the other Loan Documents.
J. MULTIPLE COUNTERPARTS.
This Agreement may be executed in multiple counterparts, each of which
shall constitute
12
an executed whole, but which together shall constitute only one instrument.
K. GOVERNING LAW.
This Agreement and the rights and obligations of the parties hereto under
this Agreement and the other Loan Documents shall in all respects be governed by
and construed and enforced in accordance with the laws of the Commonwealth of
Massachusetts, without giving effect to Massachusetts principles of conflicts of
laws.
L. NOTICES.
All notices or other communications required or provided for under this
Agreement or any other Loan Document shall be in writing and shall be given to
the party to which such notice is required or permitted to be given at the
address or telex or telecopier number set forth below (or at such other address
or hereto may hereafter specify to the others by notice in writing), and, unless
otherwise specified herein, shall be deemed delivered (a) on receipt, if
teletransmitted or delivered by hand, or (b) on the earlier of the date of
receipt or three (3) Business Days after mailing, if mailed by registered or
certified mail, postage prepaid. A "Business Day" shall mean any day on which
banking institutions in Worcester, Massachusetts, are not required by law to
remain closed.
If to Borrower:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President
Boston Biomedica, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Lender to:
Commerce Bank & Trust Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Senior Loan Officer
M. SET-OFF.
The Borrower grants to Lender, as security for all of Borrower's
Obligations, a direct and continuing lien and security interest in and upon all
deposits, balances and other sums credited by or due from Lender to the
Borrower. If any payment is not made when due under any of the Loan Documents,
after giving regard to applicable grace periods, if any, specified therein, or
if any Event of Default or other event which would entitle the Lender to
accelerate the Loan occurs, any such deposits, balances or other sums credited
by or due from the Lender to the Borrower (excluding deposits which the Borrower
is holding in trust or escrow for the sole benefit of third
13
parties and which the Borrower has previously designated to the Lender as being
so held) may to the fullest extent permitted by law at any time or from time to
time, without notice or compliance with any other condition precedent now or
hereafter imposed by statute, rule of law or otherwise all of which are hereby
waived, be set off, appropriated and applied by the Lender against any and all
of Borrower's Obligations irrespective of whether demand shall have been made
and although such Obligations may be unmatured, in such manner as Lender in its
sole and absolute discretion may determine. Within five (5) business days of
making any such set off, appropriation or application, the Lender agrees to
notify the Borrower, as the case may be, thereof, provided the failure to give
such notice shall not affect the validity of such set off or appropriation or
application. The rights of the Lender under this Section are in addition to, and
not in limitation of, other rights and remedies, including other rights of set
off, which the Lender may have.
N. SUCCESSORS AND ASSIGNS.
This Agreement shall bind and inure to the benefit of the parties hereto
and their respective successors and assigns.
O. WAIVER OF DEFENSES.
Without limiting any of the releases contained herein or in any other Loan
Document, the Borrower hereby (a) waives presentment, demand, protest and all
suretyship defenses and other rights and defenses in the nature thereof; (b)
waives any defenses based upon and specifically assent to any and all extensions
and postponements of the time for payment, changes in terms and conditions and
all other indulgences and forbearance which may be granted by he Lender to the
Borrower or other party; (c) agrees to any substitution, exchange, release,
surrender or other delivery of any collateral now or hereafter held to secure
the Note, this Agreement or any other of the Loan Documents and to the addition
or release of any other party or person primarily or secondarily liable; (d)
agrees that the invalidity or unenforceability to any extent of any agreement
providing collateral for the Loan Documents, including, without limitation, this
Agreement and the Note, shall not vitiate the liability of the borrower or any
such other party know or hereafter liable hereon; and (e) agrees to be bound by
all the terms contained in this agreement and in the Loan Documents and all
other instruments now or hereafter executed, evidencing or governing this
agreement, the loan or all or any portion of the collateral securing such loan
arrangements or agreements.
P. RIGHTS CUMULATIVE.
The rights, remedies and powers of Lender hereunder or under any other Loan
Document and all options given to the Lender are for its benefit and are
cumulative, and not alternative or
14
exclusive of any other rights, remedies or powers its would otherwise have, and
such rights, remedies and power shall and may be exercised in such order and in
such combination as Lender in its sole discretion may from time to time decide.
Q. PARTIAL INVALIDITY.
In case any one or more of the provisions of this Agreement or the Loan
Documents now or hereafter executed are held by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof. Each of the provisions of every Loan Document shall be enforceable by
the Lender to the fullest extent now or hereafter permitted by law.
R. INTEGRATION.
This Agreement supersedes all prior agreements between the parties with
respect to the Loans, other than the Loan Documents, whether oral or written,
including, without limitation, all correspondence and discussions between the
parties' respective counsel. This Agreement and the Loan Documents constitute
the sole and entire agreement between the parties with respect to the Loan
Documents and the obligations thereunder.
S. NO CHANGE IN TITLE, OWNERSHIP AND MANAGEMENT.
Borrower shall keep the Mortgaged Property free from any and all additional
liens or encumbrances, senior or junior to Lender's interest, and shall not
execute any instrument, or do any act whatsoever, that in any way would or may
adversely affect title to the Mortgaged Property. The Borrower shall not,
without the prior written consent of the Lender in each instance:
(i) sell, convey, assign or transfer or permit the sale, conveyance,
assignment or transfer of all or any part of any legal or beneficial interest in
the Mortgaged Property; or
(ii) dispose of, delegate or change in any manner the management or
beneficial ownership of the Mortgaged Property.
T. NO PARTNERSHIP.
Nothing contained in this Agreement or in any of the other Loan Documents
shall be construed in any manner to create any relationship between the Lender
and the Borrower other than the relationship of lender and borrower; and the
Lender and the Borrower shall not be considered partners or co-venturers for any
purpose.
15
U. THIRD PARTY BENEFICIARIES.
The Borrower acknowledges and agrees that this Agreement shall not create
any obligations on the part of the Lender to third parties that have a claim of
any kind whatsoever against the Borrower or any of the Mortgaged Property, and
that the Lender does not assume or agree to discharge any liabilities pertaining
to any property which might be security for any of the obligations referred to
herein. No person not a party to this Agreement shall have third party
beneficiary or other similar right hereunder. The parties hereto do not intend
to benefit any third parties.
V. EVENT OF DEFAULT.
If (a) the Borrower shall default (i) in the payment when due of any
payments due under the Loan Documents, or (ii) in the performance or observance
of any other term, covenant or condition of any of the Loan Documents continuing
beyond any applicable grace period specified therein; or (b) any representation
or warranty made by the Borrower shall prove to have been false in any material
respect when made or any representation or warranty was not made so as to make
any other representation or warranty herein contained materially misleading; or
(c) an Event of Default occurs under any of the other Loan Documents, then it
shall constitute an Event of Default hereunder. After the occurrence of any
Event of Default, the Lender shall be entitled to whatever remedies may be
available at law or in equity or under the Loan Documents, including, without
limitation, specific performance or injunctive relief, and any and all other
rights and remedies under the Loan Documents.
W. HEADINGS.
The caption headings in this Agreement are for convenience and reference
only, and are not intended to be a part of this Agreement and shall not be
construed to define, modify, alter, or describe the scope or intent of any of
the terms, covenants or conditions of this Agreement.
X. DEBT SERVICE COVERAGE RATIO.
Lender may annually, based on an evaluation of Borrower's financial
statements for the prior calendar year, determine whether the Debt Service
Coverage Ratio (as defined below) determined as of each January 1st (commencing
January 1, 2001) is equal to or greater than 1.25:1.00. If, based on such
evaluation, the Debt Service Coverage Ratio is equal to less than 1.25:1.00,
then Lender may, at its option, require Borrower to provide Lender with
additional collateral satisfactory to Lender or to reduce the principal balance
of the Loan, so that the Debt Service Coverage Ratio as reasonably estimated by
Lender for the current year is equal to or greater than 1.25:1.00. The failure
or inability of Borrower to reduce the principal balance or provide such
additional collateral within fifteen (15) days after request by Lender shall be,
at
16
Lender's option, an Event of Default hereunder and under every other Loan
Document.
The term "Debt Service Coverage Ratio" shall mean the ratio of Borrower's
Net Income to Borrower's Debt Service for the prior twelve consecutive months,
all determined in accordance with generally accepted accounting principles,
consistently applied. The term "Net Income" for purposes of the Debt Service
Coverage Ratio shall mean net profit after taxes plus depreciation and capital
expenditures, which are capitalized and not expensed. The term "Debt Service"
shall mean all payments of principal and interest and other charges due in
payment of long term debt plus increases in long term debt used to finance
capital expenditures.
To the extent Fleet Boston Financial waives Borrower's compliance with the
Debt Service Coverage Ratio in its relationship with Borrower, then Lender will
waive the compliance with this covenant.
Y. LOAN TO VALUE
The loan amount shall not exceed eighty (80%) percent of the fair market
value of the Premises. If, based on an appraisal, the loan amount exceeds eighty
(80%) percent of the fair market value of the Premises, then Lender may, at its
option, require Borrower to provide Lender with additional collateral
satisfactory to Lender or to reduce the principal balance of the Loan, so that
the loan amount does not exceed eighty (80%) percent of the fair market value of
the Premises. The failure or inability of Borrower to reduce the principal
balance or provide such additional collateral within fifteen (15) days after
request by Lender shall be, at Lender's option, an Event of Default hereunder
and under every other Loan Document.
III. OTHER DELIVERIES AND AGREEMENTS
The Borrower shall deliver or cause to be delivered to Lender the following
items and shall fulfill the agreements set forth below at the times set forth
below:
A. AUDITS. Lender reserves the right from time to time for so long as the
Loan is outstanding to inspect, examine, audit, copy and made extracts from the
books and records of Borrower during normal business hours. Borrower shall
provide access to and cooperate with Lender or Lender's representatives and
consultants for such purposes.
B. TITLE INSURANCE AND CERTIFICATION AFFIDAVITS. Simultaneous with the
execution hereof, the Borrower shall deliver (i) title insurance policies
insuring the first priority lien of the Mortgage on the Mortgage Premises,
insuring Lender that Borrower holds marketable fee simple title to the Mortgaged
Property and that such Mortgage creates, a legal, valid and enforceable first
position lien on Borrower's title to such property, subject only to such
exceptions as Lender may approve in writing, and which shall contain no
exceptions for mechanic's liens and parties in possession, shall not insure over
any matter except to the extent that any such affirmative
17
insurance is acceptable to Lender, and shall contain such endorsements and
affirmative insurance as Lender may require; (ii) title reports and
certification by counsel approved by Lender and Lender's counsel certifying that
there are no liens, encumbrances or other title matters affecting the Mortgaged
Property (other than those approved in writing by Lender); and (iii) such
affidavits and certificates with respect to the Mortgaged Property as are
necessary or desirable to obtain the endorsements and certifications described
above.
C. ANNUAL REPORTS.
1. FINANCIAL STATEMENTS. Borrower shall deliver to the Lender (a)
within forty-five (45) days after close of each quarter of each fiscal year of
the Borrower, a balance sheet of the Borrower as of the close of each quarter
and statements of income and retained earnings for that portion of the fiscal
year-to-date then ended, prepared in conformity with GAAP and certified by the
president or the chief financial officer of the Borrower as accurate, true and
complete; and (b) within ninety (90) days after the end of each fiscal year of
Borrower, signed and sworn financial statements on an audit basis by a certified
public accountant chosen by Borrower and acceptable to Lender. Such audited
financial statements shall be prepared by a Certified Public Accountant and
shall consist of balance sheets, sources and uses of funds, cash flow statements
on all real estate owned legally or beneficially by Borrower, income statements
and supporting information, including, without limitation, leases, schedule and
pledge status of liquid assets, schedule of debt maturities and schedule of
contingent liabilities. The financial statements shall fairly and consistently
represent the financial condition of Borrower.
2. ANNUAL RENT ROLLS. On or before April 30th of each year, Borrower
shall deliver a rent roll (the "Rent Roll") listing each lessee or occupant at
the Premises, and for each lease or occupancy agreement the amount of rent paid
monthly, the amount of any security deposit and/or last month's rent, the
commencement and expiration dates of the term, and any renewal, extension,
expansion or purchase options.
D. OPINION OF COUNSEL. Simultaneous with the delivery of this Agreement,
the Borrower shall deliver to the Lender an opinion of counsel in form, scope
and substance acceptable to the Lender and its counsel that this Agreement and
the other documents executed in connection herewith Loan Documents are duly
authorized, executed and delivered by the Borrower and are enforceable in
accordance with their terms, as well as an opinion regarding the compliance of
the Mortgaged Property with local zoning and applicable land use regulations.
E. OTHER DOCUMENTS. The Borrower shall execute and deliver such other
certificates, affidavits, agreements or documents as the Lender, its counsel or
its title insurance company reasonably may require to effectuate this loan
transaction.
F. WAIVER OF SUBROGATION. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents or any provision of law
or equity, the Borrower
18
hereby agrees unconditionally and irrevocable to waive:
1. any and all rights of subrogation, whether arising under
contract, 11 U.S.C. sec 509 or otherwise, to the claims of Lender against the
Borrower; and
2. any and all rights of reimbursement, subrogation, contribution or
indemnity against the Borrower which may have theretofore arisen or which may
thereafter arise in connection with any guaranty or pledge or grant of any liens
or security interest made in connection with the obligations of the Borrower to
Lender.
The Borrower hereby acknowledges that the waiver contained in the preceding
sentence ("Subrogation Waiver") is given as an inducement to the Lender to enter
into this Agreement and to complete the arrangements contemplated hereby and, in
consideration of the willingness of the Lender to enter into this agreement, the
Borrower agress that it shall not in any way amend or modify this Subrogation
Waiver without the prior written consent of the Lender in each instance.
G. AUTOCHARGE. Borrower shall maintain with Lender an account from which
Lender shall deduct the monthly payment due under the Note.
H. PURCHASE OF ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇. In the event the
Borrower purchases the property at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
("▇▇▇▇▇▇") it will execute loan documentation required by Lender to provide
Lender with a first mortgage on ▇▇▇▇▇▇ and to further memorialize Lender's
requirements with respect to any renovations to ▇▇▇▇▇▇.
I. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
BORROWER AND THE LENDER EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHT IT MAY HAVE OR HEREAFTER HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. The
Borrower hereby certifies that neither the Lender nor any of its
representatives, agents or counsel has represented, expressly or otherwise, that
the Lender would not, in the event of any such suit, action or proceeding, seek
to enforce this waiver of right to trial by jury. The Borrower acknowledges that
the Lender has been included to enter into this Agreement by, among other
things, this waiver. Borrower acknowledges that it has read the provisions of
this Agreement and in particular, this paragraph; has consulted legal counsel;
understands the rights it is granting in this Agreement and is waiving in this
paragraph particular; and makes the above waiver knowingly, voluntarily and
intentionally.
19
Executed as a sealed instrument as of the date first written above.
Boston Biomedica, Inc.
by: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, its duly
authorized Chief Executive Officer
and Assistant Treasurer
COMMERCE BANK & TRUST COMPANY
by: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice-President
20
EXHIBIT "A"
NOTE
$2,900,000.00 March 31, 2000
Worcester, Massachusetts
FOR VALUE RECEIVED, the undersigned, Boston Biomedica, Inc., a corporation
organized pursuant to the laws of the Commonwealth of Massachusetts with a
principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
(herinafter called the "Borrower"), promises to pay to
COMMERCE BANK & TRUST COMPANY
a Massachusetts Trust Company organized pursuant to Massachusetts General Laws,
Chapter 172 (hereafter referred to as the "Lender"), OR ORDER at its principal
office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ the
principal sum of
Two Million Nine Hundred Thousand and 00/100 ($2,900,000.00) DOLLARS
or the aggregate unpaid principal amount of all advances made by the Lender to
the Borrower pursuant to the terms of the Agreement (as defined below),
whichever is less together with interest on the unpaid principal until paid at
the rate and in the manner hereafter provided in lawful money of the United
States of America. The principal of this Note shall bear interest computed on
the basis of the actual number of days elapsed over a year of three hundred
sixty (360) days.
Principal and interest not paid when due shall bear interest at the rate
set forth herein from the due date until paid.
During the first five (5) years of this Note, the rate of interest payable
hereunder shall be nine and three quarters (9.75%) percent per annum.
Thereafter, interest shall be payable hereunder at the per annum rate of seven
quarters of one (0.75%) percent in excess of the Corporate Base Rate then in
effect. Corporate Base Rate shall mean the annual rate of interest established
by the Lender from time to time as its corporate base rate.
Equal payments of principal and interest, on the outstanding principal,
shall be paid monthly in arrears beginning one (1) month from the date hereof
and continuing on the same day of each month thereafter until paid in full.
Notwithstanding the foregoing, Lender may adjust the monthly payments, of
principal and interest annually, each change to be effective with the next
monthly payment, to insure that the monthly payments will continue to result in
payment in full of the obligations of the Borrower hereunder assuming an
amortization term of twenty (20) year(s) from the date of the Note, the then
applicable interest rate, and the balance of principal then outstanding, all to
be determined by the Lender in its exclusive discretion exercised in a
commercially reasonable manner.
All indebtedness, if not sooner paid, shall be due and payable ten (10)
year(s) from the date of this Note.
1
The Lender may collect a late charge not to exceed five (5%) percent of any
installment of principal or interest, or any other amount due to the Lender
which is not paid or reimbursed by the Borrower within fifteen (15) days of the
due date thereof.
In addition to such late charge, after an Event of Default, that is not
cured within any specified grace period, at the option of the Lender, the rate
of interest payable hereunder may be increased by four (4%) percent per annum.
The Borrower shall have the right to prepay this Note in part or in full
without penalty, except that, if this Note is prepaid through financing with
another lending institution, (i) during the first twelve months of this Note
additional interest in the amount of five percent (5%) of the amount prepaid
shall be paid to the Lender, (ii) during the second twelve (12) months of this
Note additional interest in the amount of four percent (4%) of the amount
prepaid shall be paid to the Lender, (iii) during the third twelve (12) months
of this Note additional interest in the amount of three percent (3%) of the
amount prepaid shall be paid to the Lender, (iv) during the fourth twelve (12)
months of this Note additional interest in the amount of two percent (2%) of the
amount prepaid shall be paid to the Lender, (v) during the fifth twelve (12)
months and any remaining period of this Note additional interest in the amount
of one percent (1%) of the amount prepaid shall be paid to the Lender.
Borrower shall maintain with Lender an account from which Lender shall
deduct the monthly payment due under the Note.
This Note has been executed and delivered in accordance with the Loan
Agreement (the "Agreement") of even date herewith between the Borrower and the
Lender, incorporated herein by reference, which sets forth further terms and
conditions upon which the entire unpaid principal hereunder and all interest
hereon may become due and payable, and generally as to further rights of the
Lender and duties of the Borrower with respect hereto.
This Note shall become due and payable, including the entire balance of
principal and interest then accrued and unpaid, prior to maturity at the option
(exercisable without notice and regardless of any prior forbearance or
indulgences) of the holder hereof upon any one or more of the following events,
the occurrence of any of which shall be a default:
1. default in the performance or observance of any of the agreements,
covenants or conditions of this Note or contained in any instrument securing
this Note (other than payments due hereunder) or in any other obligation of
Borrower to Lender or any other Lender of Borrower; or
2. failure to make any payment due hereunder; or
3. institution of bankruptcy or insolvency proceedings by or against the
Borrower, or any endorser or guarantor not discharged within thirty (30) days
after the filing thereof; or
2
4. death, dissolution, termination of existence, insolvency or business
failure of the Borrower; or
5. appointment of a receiver of any part of the property of any party to
the Note, levy on or attachment of any property of any such party, or an
assignment for the benefit of creditors by any such party, which is not cured
within sixty (60) days.
Any deposits or other sums at any time credited by or due from the holder
to Borrower or any endorser or guarantor hereof and any securities or other
property of Borrower or any endorser or guarantor hereof in the possession or
custody of the holder may at all times be held and treated as collateral
security for the payment of this Note and any and all other liabilities, direct
or indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of said respective Borrower, endorser or guarantor to the
holder; and the holder on or after default in payment hereof may sell any such
securities or other property at broker's board or at public sale or private sale
without demand, notice or advertisement of any kind, all of which are hereby
expressly waived. The holder may apply or set off such deposits or other sums
against said liabilities at any time in the case of Borrower, but only with
respect to matured liabilities in the case of endorsers or guarantors. In case
this Note shall not be paid in full whenever it shall become due, the Borrower
and any endorser or guarantor hereof agree to pay all costs and expenses of
collection including court costs and reasonable attorneys' fees.
Each Borrower, guarantor, endorser or other person now or hereafter liable
for the payment of any of the indebtedness evidenced by this Note (herein a
"party") severally agrees, by making, guaranteeing or endorsing this Note or by
making any agreement to pay any of the indebtedness evidenced by this Note, to
waive presentment for payment, protest and demand, notice of protest, demand and
of dishonor and non-payment of this Note, and consents without notice or further
assent (a) to the substitution, exchange, or release of the collateral securing
this Note or any part thereof at any time; (b) to the acceptance by the holder
or holders at any time of any additional collateral or security or other
guarantors of this Note; (c) to the modification or amendment at any time, and
from time to time, of this Note, and any instrument securing this Note, at the
request of any person liable hereon; (d) to the granting by the holder hereof of
any extension of the time for payment of the Note or for the performance of the
agreements, covenants, and conditions contained in this Note, or any instrument
securing this Note, at the request of any other person liable hereon; and (e) to
any and all forebearances and indulgences whatsoever; and such consent shall not
alter or diminish the liability of any person.
The Borrower represents that the proceeds of this Note will be used solely
for commercial and business purposes and not for personal, family, household or
agricultural purposes and the Borrower acknowledges that this representation has
been relied upon by the Lender.
This Note shall be the joint and several obligation of the Borrower and all
sureties, guarantors and endorsers, and shall be binding upon them and their
respective successors and assigns and each or any of them.
3
IN WITNESS WHEREOF, the Borrower has signed and sealed this Note as of the day
and year first above written.
Signed in the presence of: Boston Biomedica, Inc.
--------------------------- ----------------------------------
Witness By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, its duly authorized
Chief Executive Officer and
Assistant Treasurer
4
EXHIBIT B
NONE
21
EXHIBIT C
TO LOAN AGREEMENT BETWEEN BOSTON BIOMEDICA, INC. &
COMMERCE BANK & TRUST COMPANY
Elevator Maintenance Thyssen Dover
Alarm Monitoring Central Signal
Fire Inspections Central Signal
Building Generator FM Generator
Freezer Building Generator So Shore Generator
IT Room ▇▇▇▇▇▇ Fire Protection
Air Compressor Kaeser Compressors
Freight Elevator Baron Industries
-80 Freezers & Walk-in Coolers Minus-Eleven
Dumb Waiter All Tech
CCU Building Cleaners
Pest Control Waltham Chemical
Copy Machines/Faxes Edron
ALLONGE TO LOAN AGREEMENT
THIS ALLONGE TO LOAN AGREEMENT (the "Allonge") made and entered into as of the
15th day of August, 2002, between Commerce Bank & Trust Company, a Massachusetts
trust company with a principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ (hereinafter "Lender") and Boston Biomedica, Inc. of ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ (hereinafter "Borrower") is firmly
affixed to and made a part of a certain Loan Agreement of the Borrower entered
into with the Lender dated as of March 31, 2000 (hereinafter "Loan Agreement").
WHEREAS, the borrower did enter into and execute a certain Promissory Note in
favor of the Bank, dated March 31, 2000, in the original amount of Two Million
Nine Hundred Thousand Dollars ($2,900,000.00), and any amendments,
modifications, or renewals subsequent thereto (hereinafter the "Note").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby acknowledged, the Borrower and Lender hereby agree that the Loan
Agreement is hereby amended as follows:
1. Section II X Paragraph two is hereby amended to read as follows:
THE TERM "DEBT SERVICE COVERAGE RATIO" SHALL MEAN THE RATIO OF
BORROWER'S NET INCOME TO BORROWER'S DEBT SERVICE FOR THE PRIOR TWELVE
CONSECUTIVE MONTHS, ALL DETERMINED IN ACCORDANCE WITH GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES, CONSISTENTLY APPLIED. THE TERM "NET
INCOME" FOR PURPOSES OF THE DEBT SERVICE COVERAGE RATIO SHALL MEAN NET
PROFIT BEFORE TAXES PLUS INTEREST AND DEPRECIATION LESS UN-FINANCED
CAPITAL EXPENDITURES, AND ADJUSTED UPWARDS FOR NET EQUITY RAISED. THE
TERM "DEBT SERVICE" SHALL MEAN ALL PAYMENTS OF INTEREST AND ALL
PAYMENTS OF PRINCIPAL AND OTHER CHARGES DUE IN PAYMENT OF LONG TERM
DEBT.
2. All references in the Loan Agreement and any other Instrument or
document delivered in connection therewith to the "Loan Agreement"
shall be deemed to mean the Loan Agreement as amended by this Allonge.
As hereby amended, the Loan Agreement is hereby ratified and confirmed in all
respects, and all terms and provisions of the Loan Agreement not amended hereby
shall remain in full force and effect.
WITNESS THE EXECUTION HEREOF, as an instrument under seal as of the date first
set forth above.
Boston Biomedica, Inc. Commerce Bank and Trust Company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President its duly ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President
Authorized Chief Operations Officer and
Treasurer
Witness: /s/ [ILLEGIBLE]
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