FOURTH AMENDMENT OF LOAN AND SECURITY AGREEMENT
Exhibit
99.1
FOURTH AMENDMENT OF LOAN AND
SECURITY AGREEMENT
THIS
FOURTH AMENDMENT OF LOAN AND SECURITY AGREEMENT (this “Agreement”)
dated May 1, 2008, is entered into by ACCESS BUSINESS FINANCE, L.L.C., a
Washington limited liability company, (“Lender”)
SYNTHETECH, INC., an Oregon corporation (“Borrower”).
Recitals
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A.
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Line
of Credit. Borrower is indebted to Lender for a line of
credit loan (“Line of
Credit”) evidenced by the Loan and Security Agreement between
Borrower and Lender dated June 15, 2006, as amended by the First
Amendment of Loan and Security Agreement dated January 23, 2007, the
Second Amendment of Loan and Security Agreement dated June 15, 2007,
and the Third Amendment of Loan and Security Agreement dated
March 19, 2008 (together with this Agreement, the “Loan
Agreement”). The Line of Credit is secured by the Deed
of Trust, Assignment of Rents and Leases and Security Agreement (“Deed of
Trust”) dated June 15, 2006, and recorded June 30, 2006,
under Linn County, Oregon, Recording
number 2006-16030. The Deed of Trust encumbers real and
personal property (“Property”)
legally described in the Deed of Trust and consisting of two parcels of
commercial property commonly known as 0000 Xxxxxxxxxx Xxx, Xxxxxx, Xxxxxx
00000, Linn County, Oregon.
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B.
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Loan. Borrower
has asked Lender to make a loan (the “Loan”)
in the amount of FIVE HUNDRED FIFTY THOUSAND and no/100 DOLLARS
($550,000.00). The Loan is be evidenced by Borrower’s $550,000
Promissory Note (“Note”)
dated the same as this Agreement and secured by the Deed of
Trust. Lender’s willingness to make the Loan is subject to the
terms and subject to the 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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Definitions. Capitalized
terms used but not defined in this Agreement are defined in the Loan
Agreement. The term “Loan
Documents” as used in the Loan Agreement and the other Loan
Documents is modified to include this Agreement, the Note, the DOT
Modification referred to below, and all other documents and instruments
executed or delivered in connection with this Agreement and the
Loan.
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2.
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Modifications. Borrower
agrees that an Event of Default under the Note is an Event of Default
under the Loan Agreement, and that the Deed of Trust and all other
collateral for the Line of Credit also secures the Note and all Loan
Documents, as defined in Section 1
above
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3.
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Line
of Credit. All terms and conditions of the Line of
Credit under the Loan Agreement shall remain unmodified and in full force
and effect, and the Line of Credit shall continue to accrue interest and
Borrower shall continue to make installment payments as set forth in the
Loan Agreement. Such obligations and payments are in addition
to those under the Note.
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4.
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Conditions. This
Agreement shall be effective only upon satisfaction of the conditions set
forth below.
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(a)
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Deed of Trust
Modification. Borrower shall have executed and delivered
to Lender a modification of the Deed of Trust (the “DOT
Modification”) in form and substance satisfactory to Lender, which
shall incorporate by reference the modifications made under this
Agreement, and the Deed of Trust Modification shall be duly
recorded. Lender shall also receive, at Borrower’s cost, an
endorsement to the policy of title insurance issued to Lender with respect
to the Deed of Trust, insuring that the Deed of Trust has been validly
modified by the DOT Modification, increasing the coverage of the title
insurance policy to cover the Loan evidenced by the Note, and insuring
that the lien of the Deed of Trust, as modified, is prior to any and all
liens and encumbrances affecting the Property, except those liens and
encumbrances shown on Lender’s original title policy and any other liens
and encumbrances acceptable to Lender in its sole
discretion.
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(b)
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Execution of other
Loan Documents. Borrower shall have executed and
delivered this Agreement, the Note and all other Loan Documents as Lender
may request.
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(c)
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Fees and
Expenses. Borrower shall have paid to Lender the annual
Loan fee due under the Note. In addition, Borrower shall pay to
Lender, on demand, all costs, fees and expenses relating to the execution
and performance of this Agreement, including all legal fees, title
insurance premiums, and other out-of-pocket expenses of
Lender.
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(d)
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Resolutions. Lender
has received certified copies of such duly adopted resolutions as Lender
may require, authorizing Borrower’s execution of this
Agreement and naming the persons authorized to execute this Agreement on
their behalf.
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5.
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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 Loan (or, if
any such claims, defenses, counterclaims or rights exist, they are hereby
waived and release in consideration for this
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, and each and every
representation, warranty and provision of the Loan Documents is hereby
renewed, affirmed and ratified.
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6.
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General
Provisions.
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(a)
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This
Agreement and the other Loan Documents to be executed hereunder constitute
the entire agreement among the parties with respect to the Loan 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 and Lender waive all
right to a trial by jury in any action or proceeding to enforce or defend
any rights under this Agreement and the other Loan Documents or relating
thereto or arising from the lending relationship which is the subject of
the Note, the Loan Agreement, or both, and Borrower and Lender agree that
any such action or proceeding shall be tried before a court and not before
a jury. Borrower and Lender also hereby waive any right to
consolidate any such action in which a jury trial has been waived with any
other action in which a jury trial cannot be or has not been
waived. Either Borrower or Lender may file an original
counterpart or a copy of this section with any court as written evidence
of Borrower’s and Lender’s waiver of its right to trial by
jury.
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(c)
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This
Agreement, the Loan Agreement, and all other Loan Documents shall be
construed, enforced and otherwise governed exclusively by the laws of the
State of Washington without regard to its conflicts of laws rules, except
that matters relating to the validity and enforcement of the Deed of Trust
(which encumbers Property located in the State of Oregon), shall be
subject to and governed by the laws of the State of
Oregon. Borrower agrees that to the fullest extent permitted by
law, Washington law shall apply to all actions, defenses and remedies,
including without limitation, the existence and calculation of any
deficiency judgment upon foreclosure of the Deed of Trust, and Borrower
agrees that the courts of the States of Washington and Oregon at Lender’s
sole and exclusive election, shall have exclusive jurisdiction of all
actions, proceedings, defenses or remedies arising out of the execution or
enforcement of this Agreement or any of the other Loan
Documents. Borrower consents to personal jurisdiction in the
courts of Washington and Oregon, as provided herein, and specifically
waives any objection to such jurisdiction based upon a forum non
conveniens.
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(d)
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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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(e)
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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.
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(f)
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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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(g)
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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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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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| Name: | |||
| Title: | |||
| “Borrower” | |||
| SYNTHETECH, INC., an Oregon corporation | |||
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By:
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| Name: | |||
| Title: | |||
