[LETTERHEAD CCB&T APPEARS HERE]
LINE OF CREDIT
LOAN AGREEMENT
To: Benthos, Inc.
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Xxxxxxxx Drive
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N. Xxxxxxxx, XX 00000
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CAPE COD BANK and TRUST Co. (THE "BANK") is pleased to confirm that we may, in
our sole discretion, make loans to BENTHOS, INC.
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(The "Borrower" from time to time, on the following terms and conditions.
In consideration of the mutual covenants contained in this Loan Agreement dated
this 24th day of September , 1990, and other good and valuable
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consideration, receipt of which is hereby acknowledged, the parties represent,
warrant. covenant and agree as follows:
1. LINE OF CREDIT: You may borrow, repay and reborrow from us such amounts
(Individually, a "Loan" and collectively, the "Loans") as you may from time
to time request, but not exceeding the Line of Credit (the "Line")
established in the amount of ($1,500,000.00) One Million Five Hundred
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Thousand Dollars.
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The Loans shall be evidenced by a single demand note (the "Note") in the
principal amount of the Line of Credit. The unpaid principal of the Note
shall bear interest (computed on the basis of the actual number of days
elapsed over a 360 day year) prior to demand for the payment thereof at *
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx After demand, the unpaid principal
of the Note shall bear Interest until paid at a rate which at all times is
three (3%) percentage points above the rate of interest otherwise payable
hereunder.
*First National Bank of Boston Prime Rate
You will be required to pay an annual Line of Credit fee of Line fee is
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waived of our loan commitment or $100.00, whichever is greater. This fee must
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be paid at time of execution of this Line of Credit Loan Agreement and
annually thereafter.
2. INSTRUCTIONS TO MAKE ADVANCES: You hereby authorize us to make Loan advances
to you by crediting your account (the "Account") number 311 134 2 01
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maintained with the Cape Cod Bank and Trust Company upon receipt of
information as to the amount of the loan request communicated to us by draft
or by telephone or by other oral request from any one of the individuals
listed in Exhibit A attached hereto ("Authorized Persons"). Each such request
shall be confirmed in writing by you, over the signature(s) of the necessary
Authorized Persons and shall indicate the date and the amount of the Loan
advanced and the revised principal balance of the Note. Your written and
acknowledged confirmation must be returned to us not later than three (3)
business days after the date of the request.
3. MAKING OF PAYMENTS: You authorize us to charge your Account for monthly
interest payments due under the Note and this Loan Agreement, such charges to
be made as payments become due,
Any Loan advances may be repaid in whole or in part at any lime and from time
to time prior to demand, upon advice to us by telephone or other oral request
from any one of the Authorized Persons. Upon receipt of such advice,
repayment will be effected by charging your Account for the principal amount
of such payment. You agree to confirm such telephone or other oral
instructions by delivering to us no later than three (3) business days after
said advice a confirmation setting forth the amount of such payment, the date
of the transaction and the revised principal balance of the Note and signed
by an Authorized Person.
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LINE OF CREDIT
LOAN AGREEMENT
4. AMOUNT OF ADVANCES/PAYMENTS: All borrowing under the "Line will be in the
amount of $5,000 (Five Thousand Dollars) or more.
5. ELECTION TO MAKE ADVANCES: You agree that your compliance with your
performance of the provisions of this Agreement shall not obligate us to
make any Loan advances and that we shall make the Loan advances in our sole
and absolute discretion. You agree further that the records of advances
against and payments to the Note maintained by Cape Cod Bank and Trust
Company shall be conclusive evidence of all such payments and Loan advances.
6. PAYMENT OF EXPENSES: You will be responsible for all expenses in connection
with the negotiation, preparation, execution, administration, amendment or
enforcement of this Loan Agreement and the making, collection and issue of
all Loans, including, without limitation, the reasonable fees and
disbursements of our legal counsel.
7. FINANCIAL STATEMENTS: You agree to deliver or cause to be delivered to us
not more than one hundred twenty (120) days after the close of each fiscal
year, a complete set of financial statements for your business to include
such detail, reports and supporting schedules as are satisfactory to us in
our sole and absolute discretion.
The individuals and/or officers agrees to provide the "Bank" with their
personal financial statements on an annual basis to coincide with the
anniversary date of the "Line."
Such financial statements may include, but are not limited to the following:
Balance sheets, statements of income, surplus accounts, statements of
changes in financial position, a certificate signed by the chief executive
officer and chief financial officer of the Company indicating whether the
Company has observed, performed and fulfilled all of these obligations under
this agreement, copies of all reports to or from any government or agency,
written notice of any litigation, arbitrations, or any proceedings before
governmental agency which would materially affect the company or any
subsidiary, any information respecting the business, operation and financial
condition of the company or any subsidiary, and all tax information,
assessments, and governmental charges upon or against the company or its
subsidiaries.
8. RIGHT TO PAYMENT ON DEMAND: The "Bank" shall have. the right to have this
Line of Credit payable on demand for any reason it deems necessary.
9. SECURITY INTEREST: The "Bank" may require security for this Line of Credit
Loan at any time.
10. RIGHT TO PAYMENT FOR (30) CONSECUTIVE DAYS: The "Bank" shall have the right
to payment of the Line of Credit in full for at least (30) consecutive days
during any one year period.
II. LIEN: SET OFF BY BANK: The Company hereby grants to the Bank a continuing
lien for all Indebtedness of the Company to the Bank for all monies,
securities, and any other property of the Company and the proceeds thereof,
now or hereinafter held or received by the Bank from or for the Company.
Upon the occurrence of any Default, the Bank is hereby authorized at any
time and from time to time, without notice to the Company, to set off,
appropriate, and apply any or all Items hereinabove referred to against all
indebtedness of the Company to the Bank, whether under this Agreement, the
Note, or otherwise, and whether now existing or hereinafter arising.
12. DEFAULT: If any one or more of the following events shall occur for any
reason, that is:
A. if you or your Company or any Subsidiary shall fail to make a payment
when due of the principal or Interest of the Note:
B. If default shall be made in the performance or observance of, or shall
occur under, any covenant, agreement, or other provision of this agreement
or In any instrument or document delivered to the "Bank" in connection with
or pursuant to this Agreement, or if any such Instrument or document shall
terminate or become void or unenforceable without the written consent of the
"Bank";
C. If default shall occur in any payment with respect to any Indebtedness
for borrowed money of the Company or any Subsidiary or under any agreement
or Instrument under or pursuant to which any Indebtedness may have been
Issued, created, assumed, or guaranteed by the company or any subsidiary,
and If any such Indebtedness snail be declared due and payable prior to the
stated maturity thereon;
**Unless otherwise consented to in writing by the Bank, the borrower hereby
covenants as follows:
I. At the end of any fiscal year of the borrower, the borrower will not
commit the ratio of consolidated current assets to consolidated current
liabilities to be less than one to one.
II. The borrower will not at any time permit the ratio of consolidated
indebtedness to consolidated tangible net worth to be more than 1.5 to
1.
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LINE OF CREDIT
LOAN AGREEMENT
D. If default shall occur in the payment of the principal, interest, or
premium with respect to any Indebtedness for borrowed money with this
"Bank" or any Subsidiary of this "Bank";
E. if any representation or any other statement of facts herein or in any
writing furnished to the "Bank" pursuant to or in connection with this
Agreement1 shall be false or misleading in any material respect;
F. If the Company or any Subsidiary admits in writing or otherwise the
inability to pay its debts;
G. If the Company or any Subsidiary shall become insolvent, subject to
bankruptcy proceedings, or the court enters an order appointing a
receiver, trustee, liquidator, or conservator of the Company, or any
Subsidiary;
H. If any judgment against the Company or any Subsidiary or any attachment
or execution against any of its property for any amount remains unpaid,
unstayed, or undismissed;
I. In the event that the "Bank" has taken security, if the ownership of
such security becomes Encumbered in any way;
J. If the Company or any Subsidiary exceeds its credit line;
K. If at any time the "Bank" shall discover a material change in the
financial condition or business prospects of the Company or any
Subsidiary;
L. If at any time the "Bank" shall consider the Indebtedness of the Company
to the "Bank" insecure and the Company shall not on demand furnish other
security or make payment on account, satisfactory to the "Bank";
Then and In the event of any of the above listed defaults, the "Bank" may, at
its option, declare the Note to be due and payable, without presentment,
demand, protest, or notice of any kind, all of which are hereby expressly
waived.
13. CERTAIN DOCUMENTS AND OTHER ITEMS: Prior to requesting the Initial Loan
advance, you shall furnish us with each of the following, each duly
executed and dated the date of your acceptance of this Loan Agreement.
A. RESOLUTIONS: A copy, duly certified by your Clerk/Secretary, of:
(1) the resolutions of your Board of Directors authorizing the
borrowings hereunder and the execution and delivery of this Loan
Agreement and the Note, as In Exhibit B (2) all documents
evidencing other necessary corporate action and other approvals or
consents, if any, with respect hereto.
B. NOTE: Your Note payable to our order.
C. AGREEMENTS: If the "Borrower" is a Trust or Partnership, a copy of
the recorded Declaration of Trust Agreement and Schedule of Trust
Beneficiaries. A copy of the Partnership Agreement and all
documents pertaining to said Partnership Agreement.
D. INCUMBENCY: A certificate of your Secretary/Clerk certifying the
names of the officers authorized to sign this Loan Agreement, the
Note and any other documents and certificates to be delivered by
you hereunder, together with the true signatures of such officers.
E. OPINION: We may, at our sole and absolute discretion, require legal
counsel opinions addressed to us, to the effect that; (1) you are a
corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Massachusetts; (2) you have
full power to borrow monies hereunder, to execute and deliver this
Loan Agreement and the Note and that all such actions have been
duly authorized by all necessary corporate action, and are not in
conflict with any provision of law or of your charter or bylaws;
(3) this Loan Agreement and the Note are your legal and binding
obligations, enforceable in accordance with their terms.
14. GENERAL
A. AMENDMENTS: TERMINATION: This Loan Agreement may be amended only by
a written statement signed by both parties hereto. This Loan
Agreement may be terminated at any time by either of us by written
notice to the other, but no such termination shall all affect or
impair the obligations theretofore incurred by you hereunder.
B. EXPIRATION/RENEWAL: The "Line" will be subject to an ANNUAL REVIEW
upon receipt of the required annual financial statements. All
borrowings under the "Line" must be paid out in full for a minimum
of 30 days during each twelve month period. The "Bank" reserves the
right to REVOKE a Line of Credit at its sole discretion in any
event of default or upon 30 days from a written notice to the
"Borrower" as defined in the promissory note or loan agreement.
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LINE OF CREDIT
LOAN AGREEMENT
C. DEPOSITORY ACCOUNT: The "Borrower" will be required to maintain
their principal deposit accounts with the "Bank."
15 GOVERNING LAW: This Loan Agreement, the Note and all documents and
Instruments in connection herewith shall be governed by and interpreted
in accordance with the laws of The Commonwealth of Massachusetts.
If the foregoing is acceptable, please indicate your agreement therewith by
signing the copy hereof where indicated below.
Very truly yours
CAPE COD BANK and TRUST COMPANY
By: /s/Xxxxx X. XxXxxx
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Xxxxx X. XxXxxx
Title: Senior Vice President
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The foregoing is agreed to this 24th day of September , 1990 .
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/s/ X. X. Xxxx /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxx, President Xxxxxxx X. Xxxxxx, Treasurer
_____________________________ ______________________________________
_____________________________ ______________________________________
_____________________________ ______________________________________
[LETTERHEAD OF CCB&T APPEARS HERE]
April 4, 1996
J. Xxxx Xxxxxxx, C.F.O.
Benthos, Inc.
00 Xxxxxxxx Xxxx
Xxxxx Xxxxxxxx, XX 00000-0000
Dear Luke:
I am pleased to inform you that Cape Cod Bank and Trust has renewed your
$1,500,000 Line of Credit with the following terms and conditions:
I. TERMS OF LINE OF CREDIT
Borrower: Benthos, Inc.
Amount: $1,500,000.00.
Rate: National Prime.
Expiration Date/Renewal: January 31, 1997. Your Line of Credit may be
renewed on an annual basis. The renewal will be subject to a satisfactory
review of the company's year end audit, interim financial statements and
projected cash flow.
Repayment: Interest only.
Security: Unsecured.
II. ADDITIONAL COVENANTS AND CONDITIONS
Minimum current ratio of 1.1 to 1.
Maximum debt to worth ratio of 1.5 to 1.
Debt service coverage no less than 1.3X.
Representation: All representations made by the borrower to the bank in
conjunction with this loan are deemed to be material and have been relied
upon by the bank issuing this commitment.
Line Clearance: The secured Line of Credit will clear for a minimum of
thirty (30) consecutive days in the course of one year from the date of
its
Financial Reporting: Receipt of C.P.A. audit within 120 days from the
company's fiscal year-end. Monthly, management prepared, interim
financials and cash flow projected budget.
This commitment is conditional upon the acceptance of these terms and conditions
by signing and returning the enclosed copy of this leffer by April 24, 1996.
Sincerely,
CAPE COD BANK & TRUST COMPANY
Xxxxxxx X. Xxxxxxxx
Vice President
/s/X.X. Xxxxxxxx
Benthos, Inc. accepts the terms and conditions of this letter.
Benthos, Inc.
Date 4/12/96 By /s/J. Xxxx Xxxxxxx
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J. Xxxx Xxxxxxx, C.F.O.
