LOAN MODIFICATION AGREEMENT
EXHIBIT
99.3
Loan
No. SYNT03
THIS LOAN
MODIFICATION AGREEMENT (this “Agreement”)
dated November 1, 2008, is entered into by ACCESS BUSINESS FINANCE, L.L.C., a
Washington limited liability company (“Lender”),
and SYNTHETECH, INC., an Oregon corporation (“Borrower”).
Recitals
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A.
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Borrower
in indebted to Lender for a loan (“First Term
Loan”) which is evidenced by Borrower’s $550,000 Promissory Note
(“First Term
Note”) dated May 1, 2008, subject to an Amended and Restated
Loan and Security Agreement executed by Borrower and Lender, dated the
same as this Agreement (the “Loan
Agreement”, Loan No. SYNT01). The First Term Note is
secured by the Deed of Trust, Assignment of Rents and Leases and Security
Agreement dated June 15, 2006, and recorded June 30, 2006, under
Linn County, Oregon, recording number 2006-16030, as amended by the
Modification of Deed of Trust, Assignment of Rents and Leases and Security
Agreement dated May 1, 2008, and recorded May 20, 2008, under
Linn County, Oregon, recording number 2008-10238, and the Second
Modification of Deed of Trust, Assignment of Rents and Leases and Security
Agreement dated the same as this Agreement (together, the “Deed of
Trust”). The Deed of Trust and UCC financing statements
encumber real and personal property (“Property”)
located in Linn County, Oregon, and legally described in the Deed of
Trust.
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B.
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Borrower
has asked Lender to make an additional term loan (the “Second
Term Loan”, Loan No. SYNT04) in the amount of FIVE HUNDRED THOUSAND
and no/100 DOLLARS ($500,000.00). The Loan is to be evidenced
by Borrower’s Promissory Note in the Second Term Loan amount and dated the
same as this Agreement and secured by the Deed of
Trust.
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C.
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The
First Term Note, the note evidencing the Second Term Loan, the Loan
Agreement, the Deed of Trust, and all other documents and instruments
relating to the Loan Agreement, the First Term Loan, or the Second Term
Loan are collectively referred to as the “Loan
Documents”.
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D.
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Lender
is willing to make the Second Term Loan subject to the terms and
conditions of this Agreement.
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Agreement
NOW
THEREFORE, the parties agree as follows:
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1.
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Interest. Effective
as of November 1, 2008, Section 1 of the First Term Loan is amended
and restated in its entirety as
follows:
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1. Interest. The
principal balance of this Note shall bear interest at a per annum equal to the
greater of (a) a variable rate of FOUR PERCENT (4.0%) plus the Prime Rate,
and (b) EIGHT PERCENT (8.0%). As used herein, “Prime
Rate” means the “Prime Rate” as published in The Wall Street
Journal. If the Prime Rate is no longer published or
available, it shall be replaced by a comparable interest rate index selected by
Lender in its sole discretion. The interest rate shall be adjusted
simultaneously with each adjustment in the Prime Rate. Borrower
acknowledges that the Prime Rate may not be the lowest rate of interest charged
by Lender. Interest shall be calculated based on the actual number of
days elapsed of a 360 day year.
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2.
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Representations. Borrower
represents to Lender as follows.
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(a)
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Borrower
has no claim, defense counterclaim or right of offset against Lender or
its agents arising out of or in any way connected with the First Term Loan
or the Loan Agreement.
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(b)
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Borrower
has full right, power and authority to enter into this Agreement and
perform its obligations hereunder, and no information or material
submitted to Lender in connection with this Agreement contains any
material misstatement or misrepresentation nor omits to state any material
fact or circumstance.
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(c)
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There
is no uncured Event of Default by Borrower under any of the Loan
Documents, nor, to Borrower’s knowledge, any event, circumstance or
condition which with notice or the passage of time or both would be an
Event of Default.
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(d)
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Except
as disclosed to Lender in writing, all representations made by Borrower to
Lender in the Loan Documents are true and
correct.
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3.
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Ratification. Each
and every representation and warranty made by Borrower in the Loan
Documents is hereby renewed and each and every provision of the Loan
Documents, as amended by this Agreement, is hereby affirmed and
ratified. This Agreement is not intended and shall not be
construed to impair the validity, priority or enforceability of the Deed
of Trust or the other Loan Documents. As further consideration
for Lender’s execution of this Agreement, Borrower hereby releases and
discharges Lender from any and all claims, defenses, actions,
counterclaims or rights of offset in connection with the Loan and arising
out of any act or circumstance prior to the date
hereof.
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4.
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General
Terms.
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(a)
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This
Agreement and the documents and instruments to be executed hereunder
constitute the entire agreement among the parties with respect to the
subject matter hereof and shall not be amended, modified or terminated
except by a writing signed by the party to be charged
therewith.
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(b)
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Borrower
agrees to execute such other instruments and documents and provide Lender
with such further assurances as Lender may reasonably request to more
fully carry out the intent of this
Agreement.
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(c)
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This
Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, and all of which shall be taken to be one and
the same instrument, for the same effect as if all parties hereto had
signed the same signature page.
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(d)
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No
provision of this Agreement is intended or shall be construed to be for
the benefit of any third party.
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The
rest of this page is left blank intentionally.
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ORAL
AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR FORBEAR
FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON
LAW.
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IN
WITNESS WHEREOF, the parties execute this Agreement as of the day and year first
above written.
| “Lender” | |||
| ACCESS BUSINESS FINANCE, L.L.C., a Washington limited liability company | |||
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By:
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| its | |||
| “Borrower” | |||
| SYNTHETECH, INC., an Oregon corporation | |||
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By:
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| name: | |||
| title: | |||
