CREDIT AGREEMENT
Exhibit 10.1
This Credit Agreement (the "Agreement") is entered into effective as of the 23rd day of June, 2017, by and between BIOANALYTICAL SYSTEMS, INC., an Indiana corporation ("Borrower"), and FIRST INTERNET BANK OF INDIANA, an Indiana state bank ("Bank").
Section 1. | Definitions. |
Certain capitalized terms have the meanings set forth on Exhibit 1 hereto or in the Security Agreement. All financial terms used in this Agreement but not defined on Exhibit 1 or in the Security Agreement have the meanings given to them by generally accepted accounting principles. All other undefined terms have the meanings given to them in the Indiana Uniform Commercial Code.
Section 2. | Loans. |
(b) Borrower may request a Revolving Loan by written or telephone notice to Bank. Bank will make Revolving Loans by crediting the amount thereof to Borrower's account at Bank, if any, or as otherwise directed by Borrower and approved by Bank. Loan proceeds will be used for general business purposes.
(c) On the date hereof, Borrower shall issue and deliver to Bank a Promissory Note in the form of Exhibit 2.1 (the "Revolving Note"), in the principal amount of Two Million and No/100 Dollars ($2,000,000.00), bearing interest and repayable as specified in the Revolving Note.
(d) The term of the Facility will expire on June 23, 2019, and the Revolving Note will become payable in full on that date.
(e) On the date hereof, Borrower shall pay to Bank, for Bank's sole account in immediately available funds, a non-refundable loan fee associated with the Facility in the amount of Two Thousand and No/100 Dollars ($2,000.00).
(b) The proceeds of the Term Loan will be used to refinance existing debt with The Huntington Bank and for general business purposes.
(c) Borrower shall have the right to prepay the principal of the Term Loan in accordance with the provisions and prepayment penalties set forth in the Term Note. Early principal payments will not, unless agreed to by Bank in writing, relieve Borrower of Borrower's obligation to continue to make regular monthly payments required by the Term Note. Rather, early payments will reduce the principal balance due and may result in Borrower's making fewer payments. Borrower agrees not to send Bank payments marked "paid in full", "without recourse" or similar language. If Borrower sends such a payment, Bank may accept it without losing any of Bank's rights under the Term Note, and Borrower will remain obligated to pay any further amount owed to Bank.
(d) On the date hereof, Borrower shall pay to Bank, for Bank's sole account in immediately available funds, a loan fee associated with the Term Loan in the amount of Five Thousand and No/100 Dollars ($5,000.00).
Section 3. | Representations And Warranties. |
Borrower, to its knowledge, hereby warrants and represents to Bank the following:
3.1. Organization and Qualification. Borrower is a duly organized and validly existing corporation in good standing under the laws of the State of Indiana, has the necessary corporate power and authority to carry on its business and to enter into and perform this Agreement, the Notes and the other Loan Documents, is qualified and licensed to do business in each jurisdiction in which the failure to have such qualification would have a materially adverse effect on the Borrower. All information provided to Bank with respect to Borrower and its operations is true and correct in all material respects.
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(a) None of Borrower's executive officers is aware of, and Borrower has not received written notice of, any past, present or future events, conditions, circumstances, activities, practices, incidents, actions or plans which may reasonably be expected to interfere with or prevent compliance or continued compliance, in any material respect, with Environmental Laws, or may reasonably be expected to give rise to any material common law or legal liability, or otherwise form the basis of any material claim, action, demand, suit, proceeding, hearing, study or investigation, based on or related to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling or the emission, discharge, release or threatened release into the environment, of any pollutant, contaminant, chemical, or industrial, toxic or hazardous substance or waste.
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(b) There is no civil, criminal or administrative action suit, demand, claim, hearing, notice or demand letter, notice of violation, investigation or proceeding pending or overtly threatened in writing against Borrower, relating in any way to Environmental Laws.
Section 4. | Affirmative Covenants. |
(a) As soon as publically available in regulatory filings with the Securities and Exchange Commission, the Form 10-K consolidated financial statements of Borrower and its subsidiaries as of the last day of and for the fiscal year then ended.
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(b) Not later than December 31st of each year, commencing December 31, 2017, an audited balance sheet, operating statement, and cash flow statement for Borrower. Such financial statements shall be prepared in accordance with GAAP consistently applied unless otherwise specifically noted therein.
(c) Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, commencing with the quarter ending June 30, 2017, Borrower shall provide interim internally-prepared consolidated financial statements of Borrower and its subsidiaries, including but not limited to, the financial statements required to be filed with the SEC as part of Borrower's Form 10-Q report, an AR aging report, an AP aging report and a backlog report;
(d) Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, and within one hundred twenty (120) days of the end of each fiscal year, commencing with the fiscal year ending September 30, 2017, Borrower will provide a compliance certificate in form satisfactory to Bank;
(e) Such other financial information reasonably requested by the Bank from time to time.
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4.11. Depository. Borrower shall maintain its primary deposit accounts with the Bank.
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Section 5. | Negative Covenants. |
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(a) Borrower shall not permit the Minimum Debt Service Coverage Ratio, tested quarterly and measured on a trailing twelve (12) month basis, to be less than the applicable ratio set forth below:
(i) 1.20 to 1.0, for the quarters ending September 30, 2017 and December 31, 2017; and
(ii) 1.25 to 1.0, for the quarter ending March 31, 2018 and each quarter thereafter.
The Minimum Debt Service Coverage Ratio means, for any computation period, the ratio of: (a) the sum of Borrower's (i) consolidated pre-tax net income for such period plus (ii) consolidated interest expense for such period, plus (iii) consolidated amortization expense during such period, plus (iv) consolidated depreciation expense during such period, plus (v) consolidated stock compensation expense during such period, plus (vi) forbearance fees and unscheduled principal reductions applied to the Borrower's refinanced debt with The Huntington National Bank paid or applied during such period, less (vii) distributions/dividends paid by Borrower in cash during such period, less (viii) consolidated unfunded capital expenditure expenses during such period, divided by (b) the sum of Borrower's (i) scheduled or required principal and interest payments during such period, plus (ii) consolidated cash interest payments during such period.
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(b) Beginning with the fiscal quarter ending September 30, 2017, the Debt to Equity Ratio shall not exceed 2.50 to 1.00, tested at the end of each fiscal quarter.
The Debt to Equity Ratio means, for any computation period, the ratio of: (a) Borrower's total liabilities, divided by (b) Borrower's total equity.
Section 6. | Events of Default and Remedies. |
(a) any representation or warranty made by Borrower herein or in any of the Loan Documents is materially incorrect when made or reaffirmed; provided, however, upon notice from Bank to Borrower of such materially incorrect representation or warranty, Borrower shall have a thirty (30) day grace period to cause such representation to be true and accurate; or
(b) Borrower fails to pay within 5 days of when due any principal or interest on any Obligation; or
(c) Borrower fails to observe or perform any covenant, condition or agreement herein (other than as provided in Subsection 6.1(b)) above) or in any other Loan Document and fails to cure such default within thirty (30) days of the occurrence thereof. Notwithstanding the foregoing, no such cure period shall apply to any failure to maintain insurance, or any breach in any negative covenant set forth in Section 5 hereof; or
(d) a court enters a decree or order for relief with respect to Borrower in an involuntary case under any applicable bankruptcy, insolvency or other similar law then in effect, or appoints a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of Borrower or for any substantial part of its respective property, or orders the wind-up or liquidation of its affairs; or a petition initiating an involuntary case under any such bankruptcy, insolvency or similar law is filed and is pending for sixty (60) days without dismissal; or
(e) Borrower commences a voluntary case under any applicable bankruptcy, insolvency or other similar law in effect, or makes any general assignment for the benefit of creditors, or fails generally to pay its debts as such debts become due, or takes company action in furtherance of any of the foregoing; or
(f) Borrower defaults under the terms of any Indebtedness or lease involving total payment obligations of Borrower in excess of $100,000, and such default gives any creditor or lessor the right to accelerate the maturity of any such indebtedness or lease payments which right is not contested by Borrower or is determined by any court of competent jurisdiction to be valid; or
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(g) final non-appealable and uninsured judgment of the payment of money in excess of $100,000 is rendered against Borrower and remains undischarged for sixty (60) days during which execution is not effectively stayed; or
(h) an Event of Default occurs under any Loan Document; or
(i) the dissolution or liquidation of Borrower or any Entity Guarantor; or
(j) the commencement of any foreclosure proceedings, proceedings in aid of execution, attachment actions, levies against, or the filing by any taxing authority of a lien against any of the Collateral or any property securing the repayment of any of the Obligations, which, in each case, remains undismissed for thirty (30) days; or
(k) the loss, theft or substantial damage to a material portion of the Collateral or any property securing the repayment of the Obligations if the result of such occurrence will likely result in, in Bank's reasonable judgment, the failure or inability of Borrower to continue substantially normal operation of its business within thirty (30) days of the date of such occurrence; or
(l) (i) the validity or effectiveness of any of the Loan Documents or its transfer, grant, pledge, mortgage or assignment by the party executing such Loan Document is impaired by the Borrower or any Guarantor; (ii) any Borrower or Guarantor executing any of the Loan Documents asserts that any of such Loan Documents is not a legal, valid and binding obligation of the party thereto enforceable in accordance with its terms; or (iii) the security interest or Lien purporting to be created by any of the Loan Documents, due to any act of the Borrower or any Guarantor, ceases to be a valid, perfected lien subject to no other liens other than Permitted Liens; or
(m) (i) a Reportable Event (as defined in ERISA) occurs with respect to any employee benefit plan maintained by Borrower for its employees and such Reportable Event (as defined in ERISA) is likely to have a material adverse effect on Borrower; provided that no Event of Default shall occur if the Reportable Event is caused solely by a decrease in employment; or (ii) a trustee is appointed by a United States District Court to administer any employee benefit plan; or (iii) the Pension Benefit Guaranty Corporation institutes proceedings to terminate any of Borrower's employee benefit plans; or
(n) other than Permitted Liens, the filing of any lien or charge against any of the Collateral for any amount in excess of $100,000, which is not removed to the satisfaction of Bank within a period of sixty (60) days thereafter; or
(o) the abandonment by Borrower of all or any material part of the Collateral.
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Section 7. | Conditions Precedent. |
(a) Executed version of the Term Note, together with a completed and executed Disbursement Directions Letter regarding the initial disbursement under the Term Loan.
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(b) Executed version of the Revolving Note.
(c) Executed version of this Agreement.
(d) A Certificate of Borrower, together with all attachments thereto.
(e) A Certificate of Entity Guarantor, together with all attachments thereto.
(f) An executed version of the Security Agreement for Borrower, together with a Grant of Security Interest in Trademarks and Grant of Security Interest in Copyrights.
(g) An executed version of the Security Agreement for Entity Guarantor.
(h) An executed version of the Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture, executed by Borrower, creating a first lien on Premises #1, securing the Term Loan.
(i) An executed version of the Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture, executed by Entity Guarantor, creating a first lien on Premises #2, securing the Term Loan.
(j) An executed version of the Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture, executed by Borrower, creating a second lien on Premises #1, securing the Facility.
(k) An executed version of the Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture, executed by Entity Guarantor, creating a second lien on Premises #2, securing the Facility.
(l) Mortgagor's Affidavit executed by Borrower related to Premises #1.
(m) [intentionally omitted].
(n) Environmental Indemnity Agreement executed by Borrower and Guarantor related to Premises #1 and Premises #2.
(o) All appropriate financing statements (Form UCC-l).
(p) UCC searches, insurance certificates, notices or other documents -which Bank may require to reflect, perfect or protect Bank's first and/or second priority lien, as applicable, in the Collateral and all other property pledged to secure the Obligations and to fully consummate this transaction.
(q) All requisite releases of liens, termination statements and satisfactions necessary to release all liens and encumbrances against the Collateral and any other property pledged to secure the Loans and all requisite waivers and subordination agreements, in a form satisfactory to Bank, to be executed and delivered by Borrower's landlords, lenders, and mortgagees which are necessary to grant Bank a first lien in the Collateral, including but not limited to all business assets of Borrower and each Entity Guarantor.
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(r) A Guaranty Agreement executed by Entity Guarantor.
(s) Proof of insurance with respect to the Borrower, its assets and the Real Estate and in a form reasonably satisfactory to Bank:
(i) Commercial general public liability insurance in such an amount and with such deductibles as are customary for similar borrowers;
(ii) Flood Insurance if the Real Estate is located in an area designated as a special flood hazard area by any governmental authority having jurisdiction over the Real Estate; and
(iii) Such other insurance coverages as ordinarily insured against by other borrowers with such liabilities or such properties in similar businesses.
All policies of insurance required to be maintained by Borrower shall be issued by companies reasonably satisfactory to Bank and shall have coverages and endorsements and be written for such amounts in accordance with the above. All policies of insurance shall (x) name Bank as mortgagee, lender loss payable or additional insured, as the case may require, and (y) provide that the policies may not be canceled or modified without thirty days (or, in the case of non-payment of premiums, 10 days) prior written notice to Bank.
(t) Completed documentation in compliance with the Patriot Act by Borrower and Entity Guarantor.
(u) Two (2) copies of a survey (the "Survey") for Premises #1, prepared and certified by a registered surveyor licensed in Indiana in 2014 in compliance with the minimum detail requirements in existence at the time of certification for an ALTA/ACSM Survey, including, without limitation: the boundaries and legal descriptions of the Real Estate; the location of all existing improvements on the Land; the area of the Real Estate in acres (to the nearest one one-hundredth of an acre); the location of all set-back lines, rights-of-way, easements and public utilities; the location of all abutting roadways, streets, and alleys; the location of utility services and storm drain and sewer facilities; and showing any encroachments by improvements on the Land over easements or adjoining property and showing any encroachments from adjoining property onto the Real Estate. All matters shown on the Survey must be reasonably acceptable to Bank.
(v) An ALTA Loan Policy of Title Insurance issued by the Title Company insuring that the Mortgage of Premises #1 will be a prior first lien upon the fee simple title to the Real Estate, subject to no liens, claims, exceptions or encumbrances except the Permitted Encumbrances (as defined in the Mortgage) and containing the following endorsements:
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(i) Comprehensive Endorsement Form 9;
(ii) Access Endorsement;
(iii) Environmental Lien Endorsement;
(iv) Tax Parcel Endorsement; and
(v) Such additional endorsements as may be reasonably required by Bank based upon its review of the Title Policy and Survey.
(w) A title search prepared by the Title Company related to Premises #2;
(x) Opinion letter from counsel for Borrower and Entity Guarantor in a form reasonably satisfactory to Bank covering customary matters;
(y) Appraisals prepared by an appraiser or appraisers satisfactory to Bank and indicating that the fair market value of the Real Estate, collectively, is not less than Ten Million and No/100 Dollars ($10,000,000.00).
(z) Such other assignments, certificates, opinions and other documents, instruments and information affecting or relating to Bank's interest in the Collateral securing the Loan as Lender may reasonably require.
Section 8. | Miscellaneous Provisions. |
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To Borrower: | Bioanalytical Systems, Inc. |
0000 Xxxx Xxxxxx | |
Xxxx Xxxxxxxxx, Xxxxxxx 00000 | |
Attention: Chief Financial Officer | |
With a copy to (which shall not constitute notice): | |
Ice Xxxxxx LLP | |
Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx | |
Xxxxxxxxxxxx, Xxxxxxx 00000 | |
Attention: Xxxxxxx X. Xxxxxxx, Esq. | |
To Bank: | First Internet Bank of Xxxxxxx |
00000 XXX Xxxxxxx | |
Xxxxxxx, Xxxxxxx 00000 | |
Attention: Xxxxx XxXxxxxxxx |
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With a copy to (which shall not constitute notice): | |
Xxxxx XxXxxxx LLP | |
00000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000 | |
Xxxxxx, Xxxxxxx 00000 | |
Attention: Xxxxxx Xxxxxxx, Esq. |
Either party may change such address by sending written notice of the change to the other party.
8.12. Governing Law; Jurisdiction. This Agreement, the Notes and the other Loan Documents will be governed by the domestic laws of the State of Indiana. Borrower agrees that the state and federal courts in Xxxxxx County, Indiana, or any other court in which Bank initiates proceedings have exclusive jurisdiction over all matters arising out of this Agreement, and that service of process in any such proceeding will be effective if mailed to Borrower at its address described in the Notices section of this Agreement. BANK AND BORROWER HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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(a) Bank shall keep confidential, in accordance with its customary procedures for handling confidential information and safe and sound lending practices and consistent with its practices with respect to its own confidential information, any non-public written information supplied to it by Borrower pursuant to this Agreement; provided, that, nothing contained herein shall limit the disclosure of any such information: (i) to the extent required by statute, rule, regulation, subpoena or court order, (ii) to bank examiners and other regulators, auditors and/or accountants, in connection with any litigation to which Bank is a party, or (iii) to counsel for Bank.
(b) In the event that Bank receives a request or demand to disclose any confidential information pursuant to any subpoena or court order, Bank agrees (i) to the extent permitted by applicable law, Bank will promptly notify Borrower of such request so that Borrower may seek a protective order or other appropriate relief or remedy and (ii) if disclosure of such information is required, disclose such information and, subject to reimbursement by Borrower of Bank's expenses, cooperate with Borrower in the reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the disclosed information which Borrower so designates.
(c) In no event shall this Section 8.13 or any other provision of this Agreement be deemed: (i) to apply to or restrict disclosure of information that has been or is made public by Borrower or any third party or otherwise becomes generally available to the public other than as a result of a disclosure in violation hereof, (ii) to apply to or restrict disclosure of information that was or becomes available to Bank on a non-confidential basis from a person other than Borrower or a person Bank has actual knowledge has provided such information to Bank in violation of a binding agreement regarding the confidentiality of such information with Borrower or its subsidiaries, and (iii) to require Bank to return any materials furnished by Borrower to Bank. The obligations of Bank under this Section 8.13 shall supersede and replace the obligations of Bank under any confidentiality letter signed prior to the date hereof.
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[SIGNATURE PAGE β CREDIT AGREEMENT]
BIOANALYTICAL SYSTEMS, INC. | ||
By: | /s/ Xxxx X. Xxxxxxxx | |
Xxxx X. Xxxxxxxx, Chief Financial Officer, VP Finance | ||
FIRST INTERNET BANK OF INDIANA | ||
By: | /s/ Xxxxxxx XxXxxxxxxx | |
Xxxxxxx XxXxxxxxxx, Vice President |
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EXHIBITS
TO
CREDIT AGREEMENT
BETWEEN
BIOANALYTICAL SYSTEMS, INC.
AND
FIRST INTERNET BANK OF INDIANA
Exhibit 1 | - | Definitions |
Exhibit 2.1 | - | Revolving Note |
Exhibit 2.2 | - | Term Note |
Exhibit 3.3 | - | Litigation Disclosure |
Exhibit 3.6 | - | Laws and Taxes Disclosure |
Exhibit 3.8 | - | Permitted Liens |
Exhibit 3.10 | - | Environmental Disclosure |
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EXHIBIT 1
Β· | "Account Debtor" means the party which is obligated on or under any Account. |
Β· | "Affiliates" shall mean any entity which is 10% owned by Borrower, or Entity Guarantor. |
Β· | "Collateral" shall mean the "collateral" as defined in the Security Agreement, together with the Real Estate. |
Β· | "Default" or "default" means a default (without regard to grace or cure periods) under any contract or agreement that with the passage of time could mature into an Event of Default. |
Β· | "Default Rate" means four percent (4%) in excess of the interest rate otherwise in effect under amounts outstanding under the Notes. In no event will the interest rate accruing under such Notes be increased to be in excess of the maximum interest rate permitted by applicable state or federal usury laws then in effect. |
Β· | "Entity Guarantor" means BAS Evansville, Inc. |
Β· | "Environmental Laws" means all federal, state, local and foreign laws relating to pollution or protection of the environment, including laws relating to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals, or industrial toxic or hazardous substances or wastes into the environment (including without limitation ambient air, surface water, ground water or land), or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or wastes, and any and all regulations, codes, plans, orders, decrees, judgments, injunctions, notices or demand letters issued, entered promulgated or approved thereunder. |
Β· | "Environmental Reports" has the meaning set forth on Exhibit 3.10. |
Β· | "ERISA" means the Federal Employee Retirement Income Security Act of 1974. |
Β· | "Event(s) of Default" will have the meaning set forth in Section 6.1 of the Agreement. |
Β· | "Facility" will have the meaning set forth in Section 2.1 of the Agreement. |
Β· | "GAAP" means generally accepted accounting principles as in effect from time to time. |
Β· | "Guarantors" means the Entity Guarantor and any additional guarantor added from time to time, collectively. |
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Β· | "Indebtedness" means (a) all items (except items of capital surplus, of general contingency reserves or of retained earnings, deferred income taxes, and amount attributable to minority interests, if any) which in accordance with GAAP would be included in determining total liabilities on a consolidated basis as shown on the liability side of a balance sheet as at the date as of which Indebtedness is to be determined, (b) all indebtedness secured by any mortgage, pledge, lien or conditional sale or other title retention agreement to which any property or asset owned or held is subject, whether or not the indebtedness secured thereby will have been assumed (excluding non-capitalized leases which may amount to title retention agreements but including capitalized leases), and (c) all indebtedness of others which Borrower or any Subsidiary or any Affiliate has directly or indirectly guaranteed, endorsed (otherwise than for collection or deposit in the ordinary course of business), discounted or sold with recourse or agreed (contingently or otherwise) to purchase or repurchase or otherwise acquire, or in respect of which Borrower or any Subsidiary has agreed to apply or advance funds (whether by way of loan, stock purchase, capital contribution or otherwise) or otherwise to become directly or indirectly liable. |
Β· | "knowledge" means to the actual knowledge of any of the executive officers of Borrower or Entity Guarantor, as the context requires. |
Β· | "Lien" means any security interest, mortgage, pledge, assignment, lien or other encumbrance of any kind, including interests of vendors or lessors under conditional sale contracts and capitalized leases. |
Β· | "Loan Documents" means this Agreement, the Notes, the Security Agreement, the Mortgage, and every other document or agreement executed by any party evidencing, guarantying or securing any of the Obligations; and "Loan Document" means any one of the Loan Documents. |
Β· | "Loans" means the Term Loan and the Revolving Loans. |
Β· | "Mortgage(s)" means individually or collectively as the context requires, (i) the Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture Filing, executed by Borrower, creating a first lien on Premises #1, securing the Term Loan, (ii) the Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture Filing, executed by Entity Guarantor, creating a first lien on Premises #2, securing the Term Loan, (iii) the Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture Filing, executed by Borrower, creating a second lien on Premises #1, securing the Facility, and (iv) the Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture Filing, executed by Entity Guarantor, creating a second lien on Premises #2, securing the Facility. |
Β· | "Notes" means the Term Note and Revolving Note, together with any renewals, amendments and extensions thereof. |
Β· | "Obligation(s)" means all loans, advances, indebtedness, liabilities and obligations of Borrower owed to Bank and/or the affiliates of Bank of every kind and description whether now existing or hereafter arising, and whether direct or indirect, primary or as guarantor or surety, absolute or contingent, liquidated or unliquidated, matured or unmatured, whether or not secured by additional collateral, in each case arising under this Agreement, the Notes and the other Loan Documents, including without limitation all obligations to perform or forbear from performing acts and all reasonable expenses and reasonable attorneys' fees incurred by Bank and any affiliate of Bank under this Agreement or any other document or instrument related to any of the foregoing. |
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Β· | "Permitted Liens" has the meaning assigned thereto as set forth in Section 3.8 of the Agreement. |
Β· | "Person" means any individual, corporation, firm, enterprise, partnership, trust, incorporated or unincorporated association, joint venture, joint stock company, limited liability company or other entity of any kind, or any government or political subdivision or any agency, department or instrumentality thereof. |
Β· | "Premises #1" means the real estate and improvements located at 0000 Xxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxx, owned by Borrower, and more particularly described in the Mortgage executed by Borrower in favor of Bank. |
Β· | "Premises #2" means the real estate and improvements located at 00000 Xxxxxx Xxxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx, owned by Entity Guarantor, and more particularly described in the Mortgage executed by Entity Guarantor in favor of Bank. |
Β· | "Real Estate" means individually or collectively as the context requires, Premises #1 and Premises- #2. |
Β· | "Revolving Loans" has the meaning assigned to that term in Section 2.1 of the Agreement. |
Β· | "Revolving Note" has the meaning assigned to that term in Section 2.1 of the Agreement. |
Β· | "Security Agreement" means, individually or collectively as the context requires, (i) the Security Agreement and Perfection Certificate of even date herewith between Borrower and Bank, securing the Obligations, (ii) the Security Agreement and Perfection Certificate of even date herewith between Bank and Entity Guarantor, securing Entity Guarantor's Guaranty of the Obligations, (iii) the Grant of Security Interest in Trademarks of even date herewith executed by Borrower, securing the Obligations, and (iv) the Grant of Security Interest in Copyrights of even date herewith executed by Borrower, securing the Obligations. |
Β· | "Subsidiary" means any corporation of which Borrower directly or indirectly owns or controls at the time outstanding stock having under ordinary circumstances (not depending on the happening of a contingency) voting power to elect a majority of the board of directors of said corporation. |
Β· | "Term Loan" has the meaning assigned to that term in section 2.2 of the Agreement. |
Β· | "Term Note" has the meaning assigned to that term in Section 2.2 of the Agreement. |
Β· | "Title Company" means First American Title Insurance Company. |
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EXHIBIT 2.1
FORM OF
REVOLVING NOTE
$2,000,000.00 | Date: June 23, 2017 |
Due: June 23, 2019 |
FOR VALUE RECEIVED, BIOANALYTICAL SYSTEMS, INC., an Indiana corporation (hereinafter referred to as "Maker"), hereby promises to pay to the order of FIRST INTERNET BANK OF INDIANA, an Indiana state bank, having its principal offices at 00000 XXX Xxxxxxx, Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Bank"), in lawful money of the United States of America on the due date specified above, at Bank's principal offices or at such other place or to such other party as the holder hereof may from time to time designate by written notice, the principal sum of Two Million and No/100 Dollars ($2,000,000.00) or as much thereof as may then be outstanding and to pay interest as hereinafter provided as follows:
(a) | Prior to maturity or the occurrence of an Event of Default, Maker shall pay interest on the principal balance of this Note outstanding from time to time at a floating per annum rate equal to the sum of the Prime Rate less Twenty-five Basis Points (0.25%), which rate shall change concurrently with the Prime Rate (the "Interest Rate"). Maker shall pay accrued but unpaid interest on this Note commencing on July 23, 2017, and on the 23'd day of each monthly period thereafter until maturity of this Note, whether by acceleration, demand or otherwise, at which time the unpaid balance of principal of this Note, together with all accrued but unpaid interest, costs and expenses, shall be due and payable in full. |
(b) | After maturity and the expiration of applicable grace periods provided for in the Credit Agreement (as defined herein) or while there exists any uncured Event of Default, or in the event of acceleration hereunder or the exercise by the Bank of any remedies following any Event of Default under the Loan Documents, the rate of interest shall be increased to a per annum rate equal to the Interest Rate plus Four and No/100 Percent (4.0%) compounded monthly until paid or until the Event of Default shall have been cured. |
(c) | If Maker fails to pay any amount due hereunder, or any fee in connection herewith, in full within ten (10) days after its due date, Maker, in each case, will incur and shall pay a late charge equal to Five Percent (5%) of the unpaid amount, with a minimum late charge in each instance of Twenty-Five and No/100 Dollars ($25.00). After acceleration of repayment of this Note by Bank, the payment of a late charge will not cure or constitute a waiver of any Event of Default under this Note. |
All amounts payable by Maker to the Bank under this Note shall be without relief from valuation and appraisement laws and with attorneys' fees and costs of collection as provided in the Credit Agreement. Interest shall be calculated on the basis of a Three Hundred Sixty (360) day year and charged for the actual number of days elapsed during the period for which interest is being charged. If any payment of principal of or interest on this Note falls due on a day which is not a Banking Day, the due date shall be extended to the next succeeding Banking Day and interest shall be payable at the applicable rate for the period of such extension.
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All amounts which shall be paid with respect to this Note shall be applied first to costs of collection and expenses reimbursable by Maker to Bank, secondly to the payment of interest due monthly on the outstanding balance of the principal sum or so much thereof as shall from time to time remain unpaid, and the balance of each monthly payment shall be applied on account of principal. Maker shall be permitted to prepay the outstanding principal balance of this Note on any scheduled payment date without prepayment premium or payment.
This Note evidences indebtedness incurred under a revolving line of credit extended to Maker by Bank pursuant to that certain Credit Agreement dated as of the date hereof between the Bank and the Maker, as the same may be amended from time to time (collectively, the "Credit Agreement"), to which reference is made for definitions of capitalized terms used but not otherwise defined herein, for the terms and conditions upon which payment of this Note may be accelerated and all amounts outstanding hereunder declared immediately due and payable and for the security provided for the payment of this Note.
Upon the occurrence of an Event of Default under any of the Loan Documents which secure this Note, the holder may, without demand or notice, declare all of the indebtedness evidenced by this Note and remaining unpaid balances of interest and expenses immediately due and payable by written notice to Maker, notwithstanding any term or condition in any of the Loan Documents to the contrary. This Note may also be declared due at the option of the holder hereof prior to its expressed maturity at the time, upon the terms and in the manner provided in the Loan Documents. Failure to exercise any such option shall not constitute a waiver of the right to exercise any such option if Maker is in default hereunder.
Maker and all endorsers, sureties and guarantors hereof severally waive demand, presentment for payment, notice of dishonor, protest and notice of protest, and expressly agree that this Note and any payment coming due under it may be extended from time to time without in any way affecting their liability hereunder. This Note shall be the joint and several obligation of all makers, sureties, guarantors, and endorsers, and shall be binding upon them and their heirs, personal representatives, successors, and assigns.
The rights or remedies of the holder hereof as provided in this Note and the Loan Documents shall be cumulative and concurrent, and may be pursued singly, successively, or together.
Notwithstanding anything herein or in the Loan Documents to the contrary, no provision contained herein and no provision contained in any of the Loan Documents which purports to obligate Maker to pay any amount of interest or any fees, costs or expenses which are in excess of the maximum permitted by applicable law, shall be effective to the extent that it requires the payment of any interest or other sums in excess of such maximum. In the event Maker shall at any time following the date hereof pay any amount of interest or any fees, costs or expenses which are in excess of the maximum permitted by applicable law, such overpayments shall be deemed to be loans from Maker to the holder hereof, which loans shall be due and payable by the holder upon demand by Maker together with interest from the date or dates of such overpayments calculated at the same rate as Maker is required to pay under this Note, and the repayment of such loans by the holder hereof shall be the sole remedy at law or in equity of Maker for such overpayments.
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The person executing this Note for and on behalf of Maker hereby certifies that he is duly empowered by Maker and has been duly authorized by all necessary action on the part of Maker to execute and deliver this Note for and on behalf of Maker.
This Note shall be construed according to and governed by the laws of the State of Indiana. Maker agrees that the state and federal courts in Xxxxxx County, Indiana, or any other court in which
Bank initiates proceedings have exclusive jurisdiction over all matters arising out of this Note. BANK AND MAKER HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS NOTE.
For purposes of this Note:
"Basis Point" means one one-hundredth of one percent (.01%).
"Banking Day" means a day which is not (a) a Saturday, Sunday or legal holiday on which banking institutions in the State of Indiana or the city in which the office of the Bank is located is authorized to remain closed, or (b) a day on which the New York Stock Exchange is closed. For the Bank, a "Banking Day" ends at 12:45 P.M. Eastern Standard Time, and all business transacted after such time on any particular day shall be deemed to have been transacted as of the next Banking Day.
"Prime Rate" means an independent index which is the highest rate identified as the "Prime Rate" in The Wall Street Journal "Money Rates" column on the date the interest rate is to be determined, or if that date is not a publication date, on the publication date immediately preceding. The Prime Rate is not necessarily the lowest rate charged by Bank on its loans. If the Prime Rate becomes unavailable, Bank may designate a substitute index after notifying Maker. Bank will inform Maker of the current Index upon Maker's request. Any changes or adjustments to the interest rate will not occur more often than each day. Maker understands that Bank may make loans based on rates other than the Prime Rate.
Maker authorizes Bank and its affiliates without notice, to apply any balances, credits, deposits or moneys of Maker in Bank's possession to payment of any of the foregoing. Time is of the essence of this Note and all other obligations of Maker to Bank or any of its affiliates.
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IN WITNESS WHEREOF, Maker has executed this Note as of the day and year first above written.
BIOANALYTICAL SYSTEMS, INC. | ||
By: | EXHIBIT β DO NOT EXECUTE | |
Xxxx X. Xxxxxxxx, Chief Financial Officer, VP Finance |
Witness: | |
Xxxxxxx XxXxxxxxxx |
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EXHIBIT 2.2
FORM OF
TERM LOAN NOTE
$4,500,000.00 | Date: June 23, 2017 |
Due: June 23, 2022 |
FOR VALUE RECEIVED, BIOANALYTICAL SYSTEMS, INC., an Indiana corporation (hereinafter referred to as "Maker"), hereby promises to pay to the order of FIRST INTERNET BANK OF INDIANA, an Indiana state bank, having its principal offices at 00000 XXX Xxxxxxx, Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Bank"), in lawful money of the United States of America, at the Bank's principal offices or at such other place or to such other party as the holder hereof may from time to time designate by written notice, the principal sum of Four Million Five Hundred Thousand and 00/100 Dollars ($4,500,000.00) or as much thereof as may be then outstanding and to pay interest as hereinafter provided as follows:
(a) | Prior to maturity, Maker shall pay interest on the principal balance of this Note outstanding from time to time at a fixed per annum rate ("Interest Rate") equal to Three and 99/100 Percent (3.99%). |
(b) | Commencing July 23, 2017, and on the 23'd day of each monthly period thereafter until and including June 23, 2022 (the "Maturity Date"), Maker shall make payments of principal and interest in monthly installments equal to Thirty-Three Thousand Two Hundred Sixty-Nine and 91/100 ($33,269.91). The final installment of unpaid principal, together with accrued but unpaid interest, costs and expenses shall be due and payable on the Maturity Date. |
(c) | After maturity and the expiration of applicable grace periods provided for in the Credit Agreement (as defined herein) or while there exists any uncured Event of Default, or in the event of acceleration hereunder or the exercise by the Bank of any remedies following any Event of Default under the Loan Documents, the rate of interest shall be increased to a per annum rate equal to the Interest Rate plus Four and No/100 Percent (4.0%) compounded monthly until paid or until the Event of Default shall have been cured. |
(d) | If Maker fails to pay any amount due hereunder, or any fee in connection herewith, in full within ten (10) days after its due date, Maker, in each case, will incur and shall pay a late charge equal to Five Percent (5%) of the unpaid amount, with a minimum late charge in each instance of Twenty-Five and No/100 Dollars ($25.00). After acceleration of repayment of this Note by the Bank, the payment of a late charge will not cure or constitute a waiver of any Event of Default under this Note. |
All amounts payable by Maker to the Bank under this Note shall be without relief from valuation and appraisement laws and with attorneys' fees and costs of collection as provided in the Credit Agreement. Interest shall be calculated on the basis of a Three Hundred Sixty (360) day year and charged for the actual number of days elapsed during the period for which interest is being charged. If any payment of principal of or interest on this Note falls due on a day which is not a Banking Day, the due date shall be extended to the next succeeding Banking Day and interest shall be payable at the applicable rate for the period of such extension.
This Note may be prepaid, in whole or in part, upon any scheduled payment date, provided such prepayment is accompanied by a premium equal to (i) Two Percent (2.0%) multiplied by the principal amount prepaid, for any amounts prepaid between June 23, 2017 and June 22, 2020, or (ii) One Percent (1.0%) multiplied by the principal amount prepaid, for any amounts prepaid from June 23, 2020 through the Maturity Date.
All amounts which shall be paid with respect to this Note shall be applied first to costs of collection and expenses reimbursable by the Maker to the Bank, secondly to the payment of interest due monthly on the balance of the principal sum or so much thereof as shall from time to time remain unpaid, and the balance of each monthly payment shall be applied on account of principal. All prepaid principal shall be applied to payments due under this Note in the inverse order of maturity.
This Note evidences indebtedness incurred under a term loan ("Term Loan") extended to the Maker by the Bank pursuant to that certain Credit Agreement dated as of the date hereof between the Bank and the Maker, as the same may be amended from time to time ("Credit Agreement"), to which reference is made for definitions of capitalized terms used but not otherwise defined herein, for the terms and conditions upon which payment of this Note may be accelerated and all amounts outstanding hereunder declared immediately due and payable and for the security provided for the payment of this Note.
Upon the occurrence of an Event of Default under any of any Loan Documents (as defined in the Credit Agreement) which secure this Note, the holder may, without demand or notice, declare all of the indebtedness evidenced by this Note and remaining unpaid balances of interest and expenses immediately due and payable by written notice to Maker, notwithstanding any term or condition in any of the Loan Documents to the contrary. This Note may also be declared due at the option of the holder hereof prior to its expressed maturity at the time, upon the terms and in the manner provided in the Loan Documents. Failure to exercise any such option shall not constitute a waiver of the right to exercise any such option if the Maker is in default hereunder.
Maker and all endorsers, sureties and guarantors hereof severally waive demand, presentment for payment, notice of dishonor, protest and notice of protest, and expressly agree that this Note and any payment coming due under it may be extended from time to time without in any way affecting their liability hereunder. This Note shall be the joint and several obligation of all makers, sureties, guarantors, and endorsers, and shall be binding upon them and their heirs, personal representatives, successors, and assigns.
The rights or remedies of the holder hereof as provided in this Note and the Loan Documents shall be cumulative and concurrent, and may be pursued singly, successively, or together.
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Notwithstanding anything herein or in the Loan Documents to the contrary, no provision contained herein and no provision contained in any of the Loan Documents which purports to obligate Maker to pay any amount of interest or any fees, costs or expenses which are in excess of the maximum permitted by applicable law, shall be effective to the extent that it requires the payment of any interest or other sums in excess of such maximum. In the event Maker shall at any time following the date hereof pay any amount of interest or any fees, costs or expenses which are in excess of the maximum permitted by applicable law, such overpayments shall be deemed to be loans from Maker to the holder hereof, which loans shall be due and payable by the holder upon demand by Maker together with interest from the date or dates of such overpayments calculated at the same rate as Maker is required to pay under this Note, and the repayment of such loans by the holder hereof shall be the sole remedy at law or in equity of Maker for such overpayments.
The person executing this Note for and on behalf of Maker hereby certifies that he is duly empowered by the Maker and has been duly authorized by all necessary action on the part of Maker to execute and deliver this Note for and on behalf of the Maker.
This Note shall be construed according to and governed by the laws of the State of Indiana. Maker agrees that the state and federal courts in Xxxxxx County, Indiana, or any other court in which Bank initiates proceedings have exclusive jurisdiction over all matters arising out of this Note. BANK AND MAKER HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS NOTE.
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[SIGNATURE PAGE β TERM LOAN NOTE]
IN WITNESS WHEREOF, Maker has executed this Note as of the day and year first above written.
BIOANALYTICAL SYSTEMS, INC. | ||
By: | EXHIBIT β DO NOT EXECUTE | |
Xxxx X. Xxxxxxxx, Chief Financial Officer, VP Finance |
Witness: | |
Xxxxxxx XxXxxxxxxx |
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EXHIBIT 3.3
Litigation Disclosure
None
32 |
EXHIBIT 3.6
Laws and Taxes Disclosure
None
33 |
EXHIBIT 3.8
Permitted Liens
None
34 |
EXHIBIT 3.10
Environmental Disclosure
Any disclosure or recognized environmental condition set forth in:
Phase I Environmental Site Assessment of Bioanalytical Systems, Inc. dated March 6, 2015;
Limited Microbial Evaluation Report for Bioanalytical Systems, Inc., dated March 5, 2015;
Asbestos Pre-Renovation Report for Bioanalytical Systems, Inc., dated March 3, 2015;
Report 2041 Prepared for Site Location Bioanalytical Systems, Inc., 0000 Xxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxx, by PHASE I Environmental Engineering, dated October 11, 2002; and
Report 2032 Prepared for Site Location Bioanalytical Systems, Inc., 0000 Xxxxxx Xxxxx Xxxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxx, by PHASE I Environmental Engineering, dated October 11, 2002;
(collectively, the "Environmental Reports").
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