TERM NOTE First Niagara Bank
First
Niagara Bank
| Albany, New York |
January
22,
2007
|
1.
DEFINITIONS. For
purposes of this Note:
a.
Borrower. The
“Borrower” means
American Bio Medica Corporation, a New York Corporation
having
its chief executive office at 000 Xxxxx Xxxx, Xxxxxxxxxx, XX 00000.
b.
Collateral. “Collateral”
means any collateral, subordination, guaranty, endorsement or other security
or
assurance of payment, whether now existing or hereafter arising or accruing,
that now or hereafter secures the payment of or is otherwise applicable to
any
of the Outstanding Principal Amount or any interest or other amount payable
pursuant to this Note and remaining unpaid.
c.
Event of Default. An
“Event
of Default” occurs or exists if (i) the Borrower defaults in the payment when
due of any of the Original Principal Amount or any interest or other amount
payable pursuant to this Note, (ii) the Borrower or any Other Obligor defaults
in the performance when due, whether by acceleration or otherwise, of any
obligation (including, but not limited to, any obligation to pay any money,
whether for any principal, interest, fee, charge, cost or expense or otherwise),
whether now existing or hereafter arising or accruing, to the Holder or any
other Person, the maturity of any such obligation is accelerated or there occurs
or exists any event or condition that, whether immediately or after notice,
lapse of time or both notice and lapse of time and whether or not waived, would
constitute a default with respect to or permit the acceleration of the maturity
of any such obligation, (iii) the Borrower or any Other Obligor is dissolved,
ceases to exist, participates or agrees to participate in any merger,
consolidation or other absorption, assigns or otherwise transfers or disposes
of
all or substantially all of his, her or its assets, makes or permits what might
be a fraudulent transfer or fraudulent conveyance of any of his, her or its
assets, makes any bulk sale, sends any notice of any intended bulk sale, dies,
becomes incompetent or insolvent (however such insolvency is evidenced),
generally fails to pay his, her or its debts as they become due, fails to pay,
withhold or collect any tax as required by applicable law, suspends or ceases
his, her or its business or has served, filed or recorded against him, her
or it
or any of his, her or its assets any judgment, order or award of any court,
other governmental authority or arbitrator or any lien, (iv) the Borrower or
any
Other Obligor has any receiver, trustee, custodian or similar Person for him,
her or it or any of his, her or its assets appointed (whether with or without
his, her or its consent), makes any assignment for the benefit of creditors
or
commences or has commenced against him, her or it any bankruptcy or insolvency
proceeding or any formal or informal proceeding for the dissolution, liquidation
or winding up of the affairs of or the settlement of claims against him, her
or
it, (v) any representation or warranty heretofore made to the Lender or
hereafter made to the Holder, or any financial statement heretofore provided
to
the Lender or hereafter provided to the Holder, by or on behalf of the Borrower
or any Other Obligor proves, as of the date thereof, to have been incorrect
or
misleading in any material respect or before the execution and delivery to
the
Lender by the Borrower of this Note there occurred and was not disclosed to
the
Lender any material adverse change in any information disclosed in any such
representation or warranty heretofore so made or any financial statement
heretofore so provided, (vi) there occurs any change in the management of,
or
the beneficial ownership of any stock of or other ownership interest in, the
Borrower that is, in the opinion of the Holder, materially adverse to its
interest and is not corrected to its full satisfaction within 30 days after
it
gives to the Borrower a notice that it considers such change materially adverse
to its interest or (vii) the Holder deems itself insecure with respect to the
Outstanding Principal Amount or any interest or other amount payable pursuant
to
this Note or is of the opinion that any Collateral is not sufficient or has
declined or may decline in value, whether or not the Holder
has sought any additional Collateral from the Borrower or any Other
Obligor.
x.
Xxxxxx.
The
“Holder” means the Lender or any transferee of this Note.
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e.
Lender.
The
“Lender” means First Niagara Bank, a federally chartered financial institution
having its chief executive office at P.O. Box 514, 0000 Xxxxx Xxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000-0514.
f.
Original Principal Amount. The
“Original Principal Amount” means $538,900.00
g.
Other Obligor.“Other
Obligor” means, other than the Borrower, any Person (i) who or that is now or
hereafter liable, whether directly or indirectly or absolutely or contingently,
for the payment of any of the Outstanding Principal Amount or any interest
or
other amount payable pursuant to this Note or (ii) any asset of whom or which
now or hereafter directly or indirectly secures the payment of any of the
Outstanding Principal Amount or any such interest or other amount.
h.
Outstanding Principal Amount.
The
“Outstanding Principal Amount” means the outstanding principal amount of this
Note.
i.
Person.“Person”
means (i) any individual, corporation, partnership, limited liability company,
joint venture, trust or unincorporated association, (ii) any court or other
governmental authority or (iii) any other entity, body, organization or
group.
j.
Prime Rate.
The
“Prime Rate” means, for any day, the rate identified by the Holder as its prime
rate for such day.
k.
Rate Adjustment Date. The
“Rate
Adjustment Date” means ----------------------,
-------.
l.
Treasury Bill Rate.
The
“Treasury Bill Rate” means (i) the most recent rate of the yield on United
States Treasury obligations adjusted to a constant maturity rate of --------
years
reported by The Wall Street Journal in its table entitled “Key Interest Rates”
(or otherwise if it stops publishing that table) two business days of the Holder
prior to the Rate Adjustment Date or, if it does not so report such rate two
business days of the Holder prior to the Rate Adjustment Date, the most recent
day prior thereto that it so reported such rate or (ii) if The Wall Street
Journal does not so report such rate, such rate as determined by the Holder
in
the sole discretion of the Holder.
2.
PROMISE TO PAY.
For
value received, the Borrower promises to pay to the order of the Lender in
lawful money of the United States and immediately available funds at any of
the
banking offices of First Niagara Bank:
a.
The
Original Principal Amount and interest as described in Section 3 of this Note
by
paying the installments described in Section 4 of this Note;
b.
If any
of the Original Principal Amount or any interest or other amount payable
pursuant to this Note is not paid by the date it becomes due, whether by
acceleration or otherwise, on demand by the Holder, a late charge of 5.00%
and
c.
On demand by the Holder, each cost and expense (including, but not limited
to,
the reasonable fees and disbursements of counsel, whether retained for advice,
litigation or any other purpose) incurred by the Holder in endeavoring to (i)
collect any of the Outstanding Principal Amount or any interest or other amount
payable pursuant to this Note, (ii) preserve or exercise any right or remedy
of
the Holder pursuant to this Note or (iii) preserve or exercise any right or
remedy of the Holder relating to, enforce or realize upon any Collateral.
3.
INTEREST.
The
Borrower shall pay interest, calculated on the basis of a 360-day year for
the
actual number of days of each year (365 or 366, as applicable), on the
Outstanding Principal Amount from and including the date of this Note to but
not
including the date the Outstanding Principal Amount is paid in full at a rate
that shall (a) on each day prior to the maturity, whether by acceleration or
otherwise, of the Outstanding Principal Amount be 7.17%FIXED and (b) on each
day
on or after the last day described in clause (a) of this sentence be the total
of (i) 6% and (ii) the rate in effect such day as the Prime Rate (provided,
however, that (I) in no event shall such interest be payable at a rate in excess
of the maximum rate permitted by applicable law and (II) solely to the extent
necessary to result in such interest not being payable at a rate in excess
of
such maximum rate, any amount that would be treated as part of such interest
under a final judicial interpretation of applicable law shall be deemed to
have
been a mistake and automatically canceled, and, if received by the Holder,
shall
be refunded to the Borrower, it being the intention of the Lender and the
Borrower that such interest not be payable at a rate in excess of such maximum
rate).
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4.
PAYMENTS.
The
Borrower shall pay the Original Principal Amount and interest described in
Section 3 of this Note as follows:
The
Borrower shall pay the Original Principal Amount and such interest in
60
installments of $10,714.14 each,
with the first of such installments to become due on February
1, 2007,
and one
of such installments shall become due on the same day of each succeeding
calendar month through January
1, 2012,
when
the Borrower shall pay to the Holder the Outstanding Principal Amount and all
interest and other amounts payable pursuant to this Note and remaining
unpaid.
5.
PREPAYMENT.
The
Borrower shall have the option of prepaying the Original Principal Amount to
the
Holder in full or part at any time and from time to time without
penalty.
6.
AMOUNTS IMMEDIATELY DUE.
Upon or
at any time or from time to time after the occurrence or existence of any Event
of Default other than, with respect to the Borrower, an Event of Default
described in clause (iv) of the definition of Event of Default set forth in
Section 1c of this Note, the Outstanding Principal Amount and all interest
and
other amounts payable pursuant to this Note and remaining unpaid shall, at
the
sole option of the Holder and without any notice, demand, presentment or protest
of any kind (each of which is knowingly, voluntarily, intentionally and
irrevocably waived by the Borrower), become immediately due. Upon the occurrence
or existence of, with respect to the Borrower, any Event of Default described
in
such clause (iv), the Outstanding Principal Amount and all such interest and
other amounts shall, without any notice, demand, presentment or protest of
any
kind (each of which is knowingly, voluntarily, intentionally and irrevocably
waived by the Borrower), automatically become immediately due.
7.
CROSS-DEFAULT.
The
Borrower and Guarantor hereby covenant and agree that any event constituting
a
default in the terms, covenants and conditions of any Notes, Mortgages,
agreements or other obligations given to the Lender, or a default in the terms,
covenants and conditions of any Notes, Mortgages, agreements or other
obligations given to another Lender and secured by Collateral pledged to the
Lender herein (including both real and personal property) shall be considered
a
default of the terms, covenants and conditions of this Note, and the Lender
may
take whatever action it deems necessary pursuant to said default. Furthermore,
a
default in the terms, covenants and/or conditions of this Note shall constitute
a default in the terms, covenants and conditions of any other Notes, Mortgages,
agreements or other obligations given by the Borrower or Guarantor to the
Lender.
8.
RIGHT OF SETOFF.
The
Lender, in addition to any right available to it under applicable law, shall
have the right, immediately and without notice or further action by it, to
setoff against this Note and/or other liabilities of the Borrower hereof, all
money owed by the Lender to the Borrower in any capacity, whether by savings
account, checking account, Certificate of Deposit or otherwise; and the Lender
shall be deemed to have exercised such right of setoff and to have made charge
against any such money immediately upon the occurrence of default, even though
such charge is made or entered on the books of the Lender subsequent
thereto.
9.
GOVERNING LAW.
This
Note shall be governed by and construed, interpreted and enforced in accordance
with the law of the State of New York and the federal law of the United States
without regard to the law of any other jurisdiction.
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10.
WAIVER OF TRIAL BY JURY AND CLAIMS TO CERTAIN DAMAGES. THE BORROWER KNOWINGLY,
VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES EACH RIGHT THE BORROWER MAY
HAVE TO A TRIAL BY JURY WITH RESPECT TO, AND EACH RIGHT TO ASSERT ANY CLAIM
FOR
DAMAGES (INCLUDING, BUT NOT LIMITED TO, PUNITIVE DAMAGES) IN ADDITION TO ACTUAL
DAMAGES IN, ANY ACTION OR OTHER LEGAL PROCEEDING, WHETHER BASED ON ANY CONTRACT
OR NEGLIGENT, INTENTIONAL OR OTHER TORT OR OTHERWISE, ARISING OUT OF OR
OTHERWISE RELATING TO (a) THE LOAN IN CONNECTION WITH WHICH THIS NOTE IS BEING
EXECUTED AND DELIVERED, ANY COLLATERAL, THIS NOTE OR ANY OTHER WRITING
HERETOFORE OR HEREAFTER EXECUTED IN CONNECTION WITH SUCH LOAN OR ANY COLLATERAL,
(b) ANY TRANSACTION ARISING OUT OF OR OTHERWISE RELATING TO SUCH LOAN, ANY
COLLATERAL, THIS NOTE OR ANY SUCH OTHER WRITING OR (c) ANY NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT OF SUCH LOAN, ANY COLLATERAL, THIS
NOTE OR ANY SUCH OTHER WRITING.
American
Bio Medica Corporation
By:
/s/
Xxxx Xxxxxxxxx
Printed
Name: Xxxx Xxxxxxxxx
Title:
Chief Executive Officer
By:
/s/
Xxxxx Xxxxxx
Printed
Name: Xxxxx Xxxxxx
Title:
Chief Financial Officer
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