EXHIBIT 4.9
REVOLVING TERM NOTE
APRIL 24, 1998
$10,000,000.00 Boston, Massachusetts
For value received, the undersigned (the "Borrower"), promises to pay to
Brown Brothers Xxxxxxxx & Co. ("Lender"), or order, the principal amount of Ten
Million Dollars and Zero Cents ($10,000,000.00) or such lesser amount as may be
outstanding under that certain Revolving Loan and Security Agreement, dated of
even date herewith (the "Loan Agreement"), among the Borrower and each
subsidiary of the Borrower and Lender, on or before April 24, 2000, with
interest from the date hereof on the said principal balance from time to time
outstanding. The aggregate principal balance outstanding shall bear interest
thereon at a per annum rate equal to three-quarters of one percent (0.75%)
above the Wall Street Journal Prime Rate (as hereinafter defined), payable
quarterly in arrears on the 1st business day of each calendar quarter,
commencing July 1, 1998.
Wall Street Journal Prime Rate means the highest rate published from
time to time by the Wall Street Journal as the Prime Rate, or, in the event
the Wall Street Journal ceases to publish the Prime Rate, the base, reference
or other rate then designated by Bank for general commercial loan reference
purposes, it being understood that such rate is a reference rate, not
necessarily the lowest, established from time to time, which serves as the
basis upon which effective interest rates are calculated for loans making
reference thereto. The effective interest rate applicable to undersigned's
loans shall change on the date of each change in the Wall Street Journal
Prime Rate.
Principal and interest shall be payable at the Lender's main office in
lawful money of the United States of America without set-off, deduction or
counterclaim. Interest shall be calculated on the basis of actual number of
days elapsed and a 360-day year.
This Note is a revolving note and subject to the foregoing the Borrower
may, at its option, at any time prior to demand borrow, pay, prepay and
reborrow hereunder, all in accordance with the provisions hereof and of any
and all other agreements between the Borrower and the Lender related hereto;
provided, however, that the principal balance outstanding shall at no time
exceed the face amount of the Note.
At the option of the holder, this Note shall become immediately due and
payable without notice or demand upon the occurrence of an Event of Default
under that certain Revolving Loan and Security Agreement, dated of even date
herewith, among Lender, the undersigned; Avre, Inc., Binary Associates, Inc.,
SeraCare Acquisitions, Inc., BHM Labs, Inc., Sera Care Technology, Inc. and
Western States Group, Inc.
Any payments received by the Lender on account of this Note shall be
applied first, to any costs, expenses or charges then owed to the Lender by
the Borrower; second, to accrued and unpaid interest; and third, to the
unpaid principal balance hereof. The Borrower hereby authorizes the Lender
to charge any deposit account which the Borrower may maintain with the Lender
for any payment required hereunder.
The Borrower represents to the Lender that the proceeds of this Note
will not be used for personal, family or household purposes.
Any and all deposits or other sums at any time credited by or due to
the undersigned or any endorser or guarantor hereof from the Lender or any of
its banking or lending affiliates, or any Lender acting as a participant
under any loan arrangement between the Lender and the Borrower, any endorser
or guarantor hereof, and any cash, securities, instruments or other property
of the undersigned in the
possession of the Lender or any of its banking or lending affiliates, or any
Lender acting as a participant under any loan arrangement between the Lender
and the Borrower, any endorser or guarantor hereof, whether for safekeeping
or otherwise, or in transit to or from the Lender or any of its banking or
lending affiliates or any such participant, or in the possession of any third
party acting on the Lender's behalf (regardless of the reason the Lender had
received same or whether the Lender has conditionally released the same)
shall at all times constitute security for all of the liabilities and
obligations of the undersigned and any endorser and guarantor hereof to the
Lender and may be applied or set off against such liabilities and obligations
of the undersigned or any endorser or guarantor hereof to the Lender at any
time, whether or not such are then due, whether or not demand has been made
and whether or not other collateral is then available to the Lender.
No delay or omission on the part of the holder in exercising any right
hereunder shall operate as a waiver of such right or of any other right of
such holder, nor shall any delay, omission or waiver on any one occasion be
deemed a bar to or waiver of the same or any other right on any future
occasion. The Borrower and every other maker and every endorser or guarantor
of this Note, regardless of the time, order or place of signing, waives
presentment, demand, protest and notices of every kind and assents to any
extension or postponement of the time of payment or any other indulgence, to
any substitution, exchange or release of collateral, and to the addition or
release of any other party or person primarily or secondarily liable. The
Borrower and each endorser and guarantor of this Note waive any rights to any
homestead exemptions on record as of the date of this Note respecting any
premises under the provisions of Chapter 188, Section 1, of the General Laws
of Massachusetts.
The Borrower and each endorser and guarantor of this Note shall
indemnify, defend and hold the Lender and its directors, officers, employees,
agents and attorneys harmless against any claim brought or threatened against
the Lender by the Borrower, by any endorser or guarantor, or by any other
person (as well as from attorneys' reasonable fees and expenses in connection
therewith) on account of the Lender's relationship with the Borrower or any
endorser or guarantor hereof (each of which may be defended, compromised,
settled or pursued by the Lender with counsel of the Lender's selection, but
at the expense of the Borrower and any endorser and/or guarantor), except for
any claim arising out of the gross negligence or willful misconduct of the
Lender.
The Borrower and each endorser and guarantor of this Note agree to pay,
upon demand, costs of collection of the principal of and interest on this
Note, including without limitation reasonable attorneys' fees. After demand,
interest shall accrue at a rate per annum equal to the aggregate of Four (4%)
percent plus the rate provided for herein. If any payment due under this
Note is unpaid for 10 days or more, the Borrower shall pay, in addition to
any other sums due under this Note (and without limiting the holder's other
remedies on account thereof), a late charge equal to 5.0% of such unpaid
amount.
This Note shall be binding upon the Borrower and each endorser and
guarantor hereof and upon their respective heirs, successors, assigns and
legal representatives, and shall inure to the benefit of the Lender and its
successors, endorsees and assigns.
The liabilities of the Borrower and any endorser or guarantor of this
Note are joint and several; provided, however, the release by the Lender of
the Borrower or any one or more endorser or guarantor shall not release any
other person obligated on account of this Note. Any and all present and
future debts of the Borrower to any endorser or guarantor of this Note are
subordinated to the full payment and performance of all present and future
debts and obligations of the Borrower to the Lender. Each reference in this
Note to the Borrower, any endorser, and any guarantor, is to such person
individually and also to all such persons jointly. No person obligated on
account of this Note may seek contribution from any other person also
obligated, unless and until all liabilities, obligations and indebtedness to
the Lender of the person from whom contribution is sought have been satisfied
in full. The release or compromise by the Lender of any collateral shall not
release any person obligated on account of this Note.
A photographic or other reproduction of this Note may be made by the
Lender if marked "copy" or
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"duplicate" or with any similar designation, and any such reproduction shall
be admissible in evidence with the same effect of the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence.
This Note is delivered to the Lender at one of its offices in
Massachusetts, shall be governed by the laws of the Commonwealth of
Massachusetts, and shall take effect as a sealed instrument.
The Borrower and each endorser and guarantor of this Note each
irrevocably submits to the nonexclusive jurisdiction of any federal or state
court sitting in Massachusetts, over any suit, action or proceeding arising
out of or relating to this Note. Each Borrower, endorser or guarantor
irrevocably waives, to the fullest extent it may effectively do so under
applicable law, any objection it may now or hereafter have to the laying of
the venue of any such suit, action or proceeding brought in any such court
and any claim that the same has been brought in an inconvenient forum. Each
Borrower, endorser or guarantor irrevocably appoints the Secretary of State
of the Commonwealth of Massachusetts as its authorized agent to accept and
acknowledge on its behalf any and all process which may be served in any such
suit, action or proceeding, consents to such process being served (i) by
mailing a copy thereof by registered or certified mail, postage prepaid,
return receipt requested, to such Borrower's, endorser's or guarantor's
address shown below or as notified to the Lender and (ii) by serving the same
upon such agent, and agrees that such service shall in every respect be
deemed effective service upon such Borrower, endorser or guarantor.
EACH BORROWER, ENDORSER AND GUARANTOR AND XXXXXX EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL
COUNSEL, WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING IN CONNECTION WITH THIS NOTE, ALL OF THE OBLIGATIONS OF EACH
BORROWER TO THE LENDER, AND ALL MATTERS CONTEMPLATED HEREBY AND DOCUMENTS
EXECUTED IN CONNECTION HEREWITH. EACH BORROWER, ENDORSER AND GUARANTOR
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 PROCEEDING SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
TRIAL BY JURY.
[INTENTIONALLY LEFT BLANK]
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Executed as an instrument under seal as of April 24, 1998.
Witness Borrower:
SeraCare, Inc.
------------------------------ By: /s/ Xxxxx X. Xxxxx
----------------------------------
Xxxxx X. Xxxxx, Chairman and CEO
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx
00000
STATE OF CALIFORNIA
-------------------, ss. April 24, 1998
Then personally appeared the above-named Xxxxx X. Xxxxx, Chairman and CEO
of SeraCare, Inc., and acknowledged the foregoing instrument to be the free act
and deed of SeraCare, Inc., before me,
/s/ , Notary Public
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My Commission expires: -----------------------------
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