EXHIBIT 10.1
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Branford, Connecticut Date of this Agreement: August 10, 2004
NEWALLIANCE BANK
COMMERCIAL LINE OF CREDIT
NOTE AND LOAN AGREEMENT.
WHAT SOME OF THE WORDS MEAN.
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"We," "us", "our" and "Bank" mean NewAlliance Bank, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and what are called its "successors and assigns."
"You," "your", "yours" and "Borrower" mean, individually and collectively,
the following persons and/or entities:
CAS MEDICAL SYSTEMS, INC.
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"Account" means the Commercial Line of Credit Account.
"Checking Account" means the deposit account which you establish to
facilitate repayment of amounts due and owing under this Agreement.
"Billing Cycle" means the periodic time intervals for which we analyze
your Account activity. Your Account will generally have monthly Billing Cycle
intervals.
"Guarantor" means, individually and collectively, the persons and/or
entities who are guaranteeing your obligations under this Agreement, and
includes the following: N/A.
"Security Agreement" means, individually and collectively, the separate
agreement(s) which provide collateral security for the obligations of you and/or
a Guarantor, and include the following:
UCC-1 FILING.
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II. THE COMMERCIAL LINE OF CREDIT AND INTEREST THEREON.
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(1) LINE OF CREDIT. We are establishing a line of credit, pursuant to
which you may obtain advances ("Loan Advances") up to the maximum aggregate
principal sum of Three Million Dollars and 00/100 Dollars ($3,000,000.00)
("Credit Limit"). Once borrowed, Loan Advances may be repaid and reborrowed, so
long as the aggregate principal amount outstanding at any one time does not
exceed the Credit Limit.
You promise to repay to us or to our order all of the Loan Advances, plus
interest, any fees (including Late Charges), and any other amounts you owe us
hereunder, all in accordance with the terms of this Agreement.
(2) INTEREST CHARGES; VARIABLE RATE. You agree to pay all interest which
accrues on outstanding principal balances. Interest will accrue as follows.
(a) The interest rate on the Account is variable. Your starting
interest rate as of the date of this Agreement is 4.25% per annum. Your interest
rate may change when and as a certain "Index" changes. The dates on which the
interest rate may change are sometimes called "Change Dates".
(b) On each Change Date, your interest rate will be adjusted to
equal the "Index" rate plus .00% percentage point(s). The "Index" is defined as
follows (applicable box is checked):
[X] The "Index" is the Bank's "Base Rate", which is a rate
designated as such by the Bank from time to time. It is not necessarily the best
or lowest interest rate charged by the Bank. If we discontinue the designation
of a Base Rate, for any reason, we can select, in our sole discretion, a
reasonably comparable substitute index.
[ ] The "Index" is the "Prime Rate" as published in the Wall Street
Journal, Eastern Edition (the "Journal") under the designation "Money Rates" and
shown as the "prime rate" or "base rate on corporate loans posted by at least
75% of the nation's thirty largest banks" or similar wording used by the Journal
for that index. If more than one rate is used, the Bank will use the highest. If
this index is no longer available or if the above described designations are
changed by the Journal, the Bank can use its reasonable discretion to select a
comparable substitute index.
(c) To calculate the interest charges for each day, we take the
applicable annual interest rate and divide it by [360]. This gives us a daily
periodic rate, which we then apply to the outstanding principal balance for each
day. We will continue to charge you interest for as long as principal is
outstanding under this Agreement, whether before or after the Final Maturity
Date, whether before or after an Event of Default, and whether or not judgment
is obtained.
III. REPAYMENT TERMS.
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(1) ON DEMAND. The outstanding principal balance hereunder together with
interest and other charges and fees shall be paid on or before the date payment
is demanded by the Bank. YOU UNDERSTAND AND AGREE THAT PAYMENT CAN BE DEMANDED
AT ANY TIME. IN ADDITION, YOU UNDERSTAND AND AGREE THAT ALL AMOUNTS OWED BY YOU
HEREUNDER, IF NOT SOONER DEMANDED AND/OR PAID, SHALL BE DEEMED TO HAVE BEEN
AUTOMATICALLY DEMANDED AND SHALL BE DUE AND PAYABLE ON SEPTEMBER 1, 2005 (the
"Final Maturity Date").
(2) MINIMUM MONTHLY PAYMENT. Each month, commencing September 1, 2004 ,
you will pay the interest which has accrued on the unpaid principal balances.
When interest has accrued, payments of interest will be due and payable on the
first day of each Billing Cycle ("Minimum Payment").
(3) LATE CHARGES. If we do not receive the full amount of your Minimum
Payment within fifteen calendar days from and including the date it is due, we
may charge you a late charge ("Late Charge") equal to the greater of $25 or 5%
of the unpaid part of your Minimum Payment(s) (including any unpaid Minimum
Payments from prior Billing Cycles). This Late Charge is due and payable on the
date it is assessed.
(4) AUTOMATIC PAYMENT FROM CHECKING ACCOUNT. If the box at the beginning
of this paragraph is checked, you authorize us to take payments due under this
Agreement directly from the deposit account which you establish to facilitate
repayment of amounts due and owing under this Agreement (the "Checking
Account"). This includes the monthly payments, Late Charges, if any, amounts
demanded pursuant to this Agreement, and any fees and expenses otherwise imposed
under this Agreement.
You agree that you will deposit and maintain sufficient funds on balance
in the Checking Account to ensure that all such payments can be made on the
dates they are due from fully collected and "available" funds. If sufficient
funds are not available to make all or part of the payment when due, we can, at
our option, continue to look to the Checking Account after the due date to see
if adequate funds have become available. If adequate funds have become
available, we can then, at our option, take all or part of the payment from the
Checking Account. If and when we take this action, it will not prejudice our
ability to impose a Late Charge, if applicable, demand repayment hereunder,
declare an Event of Default, and/or pursue other rights and remedies available
to us.
(5) APPLICATION OF PAYMENTS. Payments received by us with respect to this
Agreement (including any prepayments) shall be applied first to any interest
that is due and payable under this Agreement, then to Late Charges, if any, and
finally to principal. We reserve the right, at our option, to apply a payment to
any other charges or expenses owed by you in connection with this Agreement
and/or owed by you or others in connection with any Security Agreement. If we
elect to apply payments to such charges or expenses, we can do so before
application to
any other amount that you owe. The delay or failure to apply payments to such
charges or expenses on one or more occasions shall not constitute a waiver of
this right with respect to any charge or expense.
(6) PREPAYMENT. You may repay your Account balance in whole or in part at
any time without penalty.
IV. TERMS AND CONDITIONS OF BORROWING.
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(1) LOAN ADVANCES ARE DISCRETIONARY. You may, from time to time up until
termination of the Account, submit requests to the Bank to obtain Loan Advances
under this Agreement.
Your borrowing privileges under this Agreement are discretionary. This
means that the Bank may approve or deny any such request for a Loan Advance in
its sole discretion and for any reason whatsoever. In addition, this means that
your ability to make requests for Loan Advances hereunder can be terminated by
the Bank at any time for any reason (with or without an Event of Default) and
without prior notice to you. Accordingly, you agree to monitor, on your own, the
ongoing status of your borrowing privileges hereunder, and you understand that
when planning and conducting your financial affairs, you must consider the
discretionary nature of your borrowing privileges. No termination of borrowing
privileges by the Bank shall affect or impair the obligations already incurred
by you hereunder. Under no circumstances shall the aggregate amount of Loan
Advances outstanding hereunder exceed the Credit Limit.
(2) PROCEDURES FOR OBTAINING LOAN ADVANCES. You hereby authorize the Bank
to make Loan Advances hereunder by direct deposit to the Checking Account.
Requests for Loan Advances under this Agreement may be made by telephone by you
personally (if you are a natural person) or by one or more of the officer(s) or
other person(s) authorized in the Borrowing Resolution which we received from
you in connection with this Account. You agree that the Bank shall be entitled,
without any independent investigation, to assume that the persons making
telephone requests for Loan Advances hereunder are whom they purport to be. In
connection with any such request, you also agree to provide the Bank with such
financial, credit and operational information that the Bank may, in its sole
discretion, require (this requirement shall in no way be construed as a
limitation on the Bank's ability to request information at other times in
accordance with paragraph VI(1) below).
(3) EVIDENCE OF DEBT. You hereby authorize and direct us to enter on our
records (including, without limitation, computer records) information pertaining
to the Account, including, without limitation, information pertaining to the
dates and amounts of Loan Advances and payments hereunder, and all such entries
shall, in the absence of manifest error, be conclusive as to your indebtedness
with us under this Agreement.
(4) CHANGES TO CREDIT LIMIT. We can increase your Credit Limit by giving
you written notice to that effect. We can decrease your Credit Limit with or
without advance notice to you.
V. EVENTS OF DEFAULT AND REMEDIES.
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(1) DEFAULT. An "Event of Default" will occur if:
(a) You do not pay the full amount of any payment due and payable
under this Agreement on the date it is due (including the date payment is
demanded); or
(b) You are in default under any obligation that you have to pay
anyone else; or
(c) Any proceeding is commenced under any bankruptcy, insolvency or
relief of debtors laws affecting you or any Guarantor; or
(d) You or any Guarantor shall die or be dissolved, as applicable;
or shall make an assignment for the benefit of creditors; or shall have a
receiver, custodian, trustee or conservator appointed for all or substantially
all of your or such Guarantor's assets; or
(e) There is a default or breach under any other agreement you have
with us or with respect to any promise you have made in this Agreement
(including, without limitation, any promises to provide financial information);
or
(f) There is a default or breach of the covenants contained in any
Security Agreement; or
(g) All or any material part of the legal or equitable ownership
interests of a Guarantor (including, without limitation, shareholder, membership
and partnership interests in a Borrower) held as of the date hereof are
assigned, transferred, sold or terminated without our prior written consent; or
(h) There is a material adverse change in the condition or affairs
(financial or otherwise) of any Borrower or Guarantor, or a material adverse
change (financial or otherwise) in the collateral which secures the obligations
of a Borrower or a Guarantor, and such change causes us, in good faith, to
become insecure with respect to the repayment and performance of this Agreement;
or
(i) any event occurs, which with the passage of time or giving of
notice or both, would become an Event of Default hereunder.
(2) REMEDIES. If an Event of Default has occurred, we may require you to
pay immediately the full amount of unpaid principal, and all interest that you
owe on that amount, plus any Late Charges, together with any other amounts owed
to us under this Agreement or any Security Agreement. This paragraph shall in no
way be construed as a limitation on the Bank's right to demand payment of these
amounts at any time, with or without an Event of Default. We can also exercise
our rights under applicable law, under any Security Agreement, and under any
other agreement available to us. Our rights and remedies are cumulative, and we
may exercise them in any order we choose.
(3) DEFAULT RATE. If an Event of Default occurs, in addition to any Late
Charge, we may, at our option, increase the interest rate to an annual rate
which is equal to the interest rate described in Section II(2) of this Agreement
plus two percentage points 2% (the "Default Rate"). Interest at this Default
Rate shall be payable on the unpaid principal balance hereof from the date we
determine (which may be retroactive to the date the Event of Default occurred)
until the default is finally cured and you request reinstatement of the old rate
in writing (and we have been provided with satisfactory evidence of the cure and
no other Event of Default exists). Interest at the Default Rate will accrue both
before and after demand, and any Final Maturity Date, and whether or not
judgment is obtained. If you request reinstatement in writing (and we have been
provided with satisfactory evidence of the cure), the interest rate will revert
to the annual rate of interest determined in accordance with Section II(2) above
(unless another Event of Default exists). The language in this paragraph
discussing what happens to the interest rate if a default is cured, shall in no
way limit our right to demand payment or otherwise exercise rights described in
Section V of this Agreement. A cure will not effect those rights.
(4) PAYMENT OF EXPENSES. You agree to pay, on demand, all costs of
collection of this Note and Loan Agreement (which term shall include any renewal
or extension hereof) incurred by us, including reasonable attorneys' fees and
court costs.
(5) SET OFF. In addition to the rights you gave us in Subsection III (4),
you hereby give us a lien on, a security interest in, and after the occurrence
of an Event of Default an option to set off against, all deposits of yours at
any time in any checking, savings or other account with the Bank in any order,
to repay amounts outstanding hereunder, without prior demand or notice,
regardless of the adequacy of any guarantees and/or collateral securing all or
part of that indebtedness, and without resort to legal process or judicial
proceedings, or other authorization.
(6) NO WAIVER. Neither failure or delay on our part to exercise any right,
power or privilege under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power, or privilege under
this Agreement preclude any other or further exercise thereof or the exercise of
any other right, power or privilege.
VI. GENERAL.
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(1) FINANCIAL INFORMATION. You understand and agree that your financial
condition (and the financial condition of any Guarantor) is of material and
continuing importance to us. Accordingly, you hereby agree to promptly provide
us with such financial information as we may request from time to time
(including, if requested, information pertaining to any Guarantor). All such
information shall be in form, scope and detail acceptable to us, and, if we so
request, will be reviewed, compiled or audited by persons or firms reasonably
acceptable to us (all at your expense).
(2) GIVING OF NOTICES. Unless the law requires a different method, any
notice that must be given to you under this Agreement will be given by hand
delivery, or by mailing it by first class mail, to the address, as applicable,
stated below. It shall be mailed or delivered to you at a different address if
you give us a notice of that different address.
Unless the law or this Agreement provides otherwise, all notices that must
be given to the Bank under this Agreement will be given by mailing it by first
class mail to the Bank at the address stated above in Section I (directed to the
attention of the Commercial Loan Administration Department) or to a different
address if Bank gives you notice of that different address.
(3) OBLIGATIONS OF BORROWERS UNDER THIS AGREEMENT: You agree that if more
than one Borrower signs this Agreement, each Borrower is fully and individually
obligated to keep all of the promises made in this Agreement, including the
promise to pay the full amount owed. We may enforce our rights under this
Agreement against each Borrower individually or against some or all of the
Borrowers together. This means that any one of the Borrowers may be required to
pay all of the amounts owed under this Agreement. We do not have to notify any
Borrower that the amounts due under this Agreement have not been paid by another
Borrower. The Bank can repeatedly agree to extend this Agreement or release any
collateral or any Guarantor without releasing any Borrower from responsibility
under this Note. The Bank and any one or more Borrowers can agree to the release
of one or more Borrowers without releasing any other Borrower from
responsibility under this Agreement. The obligation of each Borrower is absolute
and unconditional, and it is joint and several.
(4) CONNECTICUT LAW. This Agreement is being made and funded in the State
of Connecticut and will be governed by the laws of the State of Connecticut.
(5) SEVERABILITY. If any part of this Agreement is found to be invalid,
illegal or unenforceable by a court, the other parts of this Agreement will stay
valid and enforceable and will be read as if the invalid or unenforceable part
had not been included.
(6) CAPTIONS. The headings of the various sections, subsections and
paragraphs of this Agreement are included for convenient reference only, and
shall not be included in the interpretation of this Agreement.
(7) BINDING EFFECT. This Agreement shall be binding upon you and your
successors and assigns (or, if applicable, executors and heirs). This Subsection
VI(7) shall not, however, be construed as permitting you to assign your rights
and/or responsibilities under this Agreement. You understand and agree that such
an assignment is prohibited. We are permitted to assign our rights and benefits
under this Agreement with or without advance notice to you.
(8) MODIFICATIONS. Except as otherwise provided herein, this Agreement may
be amended only by a written agreement signed by you and the Bank.
(9) REPRESENTATIONS AND WARRANTIES. By signing below, you represent and
warrant that as of the Date of this Agreement: (a) all financial information
given to us in connection with this Agreement is accurate; (b) you have filed
all state and federal tax returns required to be filed and paid all taxes
related thereto; (c) you are in material compliance with all applicable laws
(including environmental laws) governing your financial affairs and operations;
(d) except as otherwise disclosed to the Bank in writing, there are no pending
or threatened lawsuits or claims which could have a material adverse impact upon
your financial affairs and/or operations; (e) Borrower
agrees to comply with all of the terms and conditions of a commitment letter to
Borrower dated August 4, 2004 , the terms of which are incorporated herein and
made a part hereof.
(10) WAIVER OF NOTICE, HEARING AND BOND FOR PREJUDGMENT REMEDY You hereby
acknowledge that the transaction of which this agreement is a part if a
commercial transaction and, to the extent allowed under Chapter 903a of the
Connecticut General Statutes or by other applicable law, hereby waive (a) all
rights to notice and prior court hearing or court order in connection with any
and all prejudgment remedies to which any holder of this agreement may become
entitle by virtue of any default under a provision of this agreement or under
any security agreement, and (b) all rights to request that the holder of this
agreement post a bond, with or without surety, to protect borrower or any other
person or entity liable under this agreement against damages that may be caused
by any prejudgment remedy sought or obtained by the holder of this agreement by
virtue of any default under the provisions of this agreement or under any
security agreement, and borrower hereby consents to the issuance of any such
prejudgment remedy without such a bond.
(11) WAIVER OF JURY TRIAL. You hereby knowingly, voluntarily,
intentionally and irrevocably waive any and all right to a trial by jury in any
action or proceeding to enforce or defend or clarify any right, power, remedy or
defense arising out of or related to this agreement, or the transactions
contemplated herein, whether sounding in tort or contract or otherwise, or with
respect to any course or conduct, course of dealing, statement (whether verbal
or written) or actions of any party; and you further agree that any such action
or proceeding shall be tried before a judge and not before a jury. Your further
waive any right to seek to consolidate any such litigation in which a jury trial
has been waived with any other litigation in which a jury trial cannot or has
not been waived. Further, you hereby certify that no representative or agent of
the bank, nor the bank's counsel, has represented, expressly or otherwise, that
the bank would not, in the event of such litigation, seek to enforce this waiver
provision. You acknowledge that the provisions of this paragraph are a material
inducement to the bank's decision to enter into this agreement.
(12) SERVICE OF PROCESS. You hereby consent to the jurisdiction of any
state or federal court located within the state of Connecticut and waive
personal service of any and all process upon you, and conent that all such
service or process be made by registered mail directed to the applicable address
stated below and service so made shall be deemed to be completed upon actual
receipt thereof.
SIGNATURE OF BORROWER. By signing below, you agree, as a borrower, to the terms
and conditions of this agreement as of the date of this agreement shown above.
BORROWER: CAS MEDICAL SYSTEMS, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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BY: ▇▇▇▇▇ ▇▇▇▇▇▇
ITS: President and CEO
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