Peoples Heritage Bank
Member FDIC
COMMERCIAL NOTE
$ 200,000.00 Portland , Maine
September 13, 1996
FOR VALUE RECEIVED, the undersigned (hereinafter called the
"Borrower"), jointly and severally if more than one, promise(s) to pay to the
order of PEOPLES HERITAGE SAVINGS BANK (hereinafter called the "Lender"), at
any of its banking offices or at such other place as may be designated in
writing by the Lender, the principal sum of *Two Hundred Thousand and
NO/100** Dollars ($*200,000.00*), together with interest on the principal sum
from time to time advanced at (Check one):
INTEREST RATE:
X the fixed rate of *ten* Percent (*10.00* %) per annum
/ / a variable annual rate which shall at all times be equal to
Percent ( %) per annum above the "Base Rate" which
shall mean (i) the base lending rate as determined from time to
time by The First National Bank of Boston or the successor
thereto, or (ii) if said bank shall cease to determine such
base lending rate, then the highest prime rate as published in
the Wall Street Journal, or (iii) if not so published, then the
prime rate as published in a generally recognized source
determined by Lender. Lender shall not be required to notify
Borrower of adjustments in said variable interest rate, and such
adjustments shall become effective immediately upon any change
in such Base Rate.
/ / other:
until paid in full in accordance with the following payment schedule, which the
Borrower agrees to follow (Check one).
PAYMENT SCHEDULE:
X in monthly installments of *Five Thousand Seventy Two and
52/100*Dollars $ *5,072.52**) each, including
principal and interest (which payments are based upon an
amortization schedule of Four (4) years), commencing on
October 13, 1996, and monthly thereafter until September 13,
2000 when all principal and interest remaining unpaid shall be
due and payable in a single balloon payment, notwithstanding the
foregoing amortization schedule. The Lender shall, on or
about each anniversary of the date of this Note, adjust the
amount of such installments to an amount which, based on changes
in the interest rate then applicable to this Note, will maintain
the original amortization schedule. Payment of all accrued
interest hereunder shall be due monthly even though such
interest payment may exceed the installment amount as so
determined.
/ / in one principal payment, due on , 19 with interest
only payable monthly, commencing on , 19 and monthly
thereafter until said principal balance with accrued
interest is paid in full.
/ / in one payment of principal and accrued interest due on , 19 .
/ / other:
All payments shall be applied first to unpaid interest and then
to outstanding principal, until paid in full. All interest hereunder shall be
computed on the basis of the actual number of days elapsed over a 360 day year.
If any payment is not received within fifteen (15) days of when due, then
Borrower shall pay to Lender a late payment fee of six percent (6.0%) of
the amount of such delinquent payment.
DEFAULT INTEREST RATE: Lender shall have the right to charge
interest on the unpaid principal balance hereof at an interest rate of
three percent (3.0%) per annum in excess of the rate of interest otherwise
payable as provided herein, for any period after an event of default (as
defined below) shall have occurred and until the same shall have been cured or
expressly waived by Lender in writing.
PREPAYMENT: This Note may be prepaid in full or in part (check one):
/ / without prepayment charge or premium
/ / with a prepayment charge of % of the amount prepaid
X with a prepayment charge to be calculated pursuant to the
formula set forth in Lender's Commitment Letter to Borrower
dated August 29,1996
Unless Lender expressly agrees otherwise partial prepayments will not affect
the payment schedule required above.
SECURITY:
1. This Note is secured and/or guaranteed pursuant to the terms and
conditions of the following documents which, unless otherwise
noted below, are dated on or about the date of this Note (check
as many as apply):
// a mortgage and security agreement on property located at
/ / a collateral assignment of leases and rentals relating to the
property described in said mortgage and security agreement
X a security agreement respecting personal property, namely (but
without limitation): accounts receivable, inventory, fixed
assets, and equipment .
/ / a guaranty or guaranties executed by
X other: This Loan and the collateral for the Loan will be cross-
collateralized with all other Loans of Borrower with Bank.
This Note may also be secured by documents executed in the
future by Borrower or by any Guarantor. If checked here this Note is
secured as a future advance pursuant to the terms of an existing Mortgage and
Security Agreement from Borrower to Lender dated and recorded in the
County Registry of Deeds in Book , Page . This Note may also
be secured by existing security agreements, guaranties or other documents if
the provisions of such existing documents state that they shall secure all
future obligations or liabilities of Borrower to Lender. All documents which
secure or guaranty this Note, whether executed prior hereto, on even date
herewith or in the future, are hereinafter called "Security Documents."
DEFAULT:
2. The entire principal balance hereof, together with all interest
and other charges, as applicable, shall become due and payable at the option of
the Lender, upon the occurrence of any one or more of the following events,
each of which shall constitute an event of default hereunder: (a) the
insolvency of the Borrower or any Guarantor; or (b) the making of any
assignment for the benefit of creditors of the Borrower or any Guarantor, or
(c) the issuance of filing of any attachment, levy, or other judicial process
on or against any of the Borrower's or any Guarantor's assets; or (d) the
appointment of a receiver, trustee or custodian for all or any portion of the
property of the Borrower or any Guarantor; or (e) the commencement of any
proceedings under any state or federal bankruptcy or insolvency law or under
laws for relief of debtors, by or against the Borrower or any Guarantor; or
(f) the occurrence of such a change in the condition or affairs (financial or
otherwise) of the Borrower or any Guarantor as, in the opinion of the Lender,
materially impairs the Collateral (if any) or the prospect of repayment of
any amounts outstanding hereunder; or (g) the death, incompetency, dissolution,
business failure (which term includes, without limitation, the cessation of
normal business operations) or termination of existence of the Borrower or any
Guarantor; (h) the failure of the Borrower or any Guarantor to pay their
respective debts as they mature; (i) any representation or statement
made or furnished to Lender by or on behalf of any Borrower or Guarantor is
false or misleading in any material respect; (j) any default in the payment of
any sums due under this Note when due, or default by the Borrower or any
Guarantor in performance of any other obligation under this Note; (k) the
failure of Borrower or any Guarantor to timely provide to Lender the financial
statements, tax returns or other information required pursuant to the terms of
any loan commitment letter from Lender relating to the loan evidenced by this
Note or the failure of Borrower to perform any other obligations or agreements
set forth in any such commitment letter; or (1) default beyond any applicable
cure period in the payment, satisfaction or performance by the Borrower or any
Guarantor of any condition or obligation under any of the Security Documents or
under any documents executed in connection with any other Liabilities of
the Borrower or any Guarantor to the Lender.
REMEDIES:
3. Upon the occurrence of any event of default under this Note the
Lender may declare due and payable at once all amounts outstanding hereunder.
The Lender shall not be required to pursue or to exhaust its remedies against
the Borrower, or its successors, or against any other party liable for payment
hereof, whether maker, Guarantor, or otherwise, or against any property or
assets mortgaged or pledged as security herefor, but upon nonpayment or
nonperformance hereof may immediately demand and enforce payment and
performance from any one or more of Borrower(s) or Guarantor(s), or may seek to
realize upon the value of any collateral, without the necessity of joining any
other Borrower(s) or Guarantor(s), and in each case without any requirement of
first seeking to collect the debt evidenced by the Note from any other source.
Each Borrower hereby irrevocably agrees that any legal action or proceeding
arising out of or relating to this Note may be brought in any state or federal
court in the State of Maine, at the election of Lender. By the execution and
delivery hereof, each Borrower hereby irrevocably submits to the nonexclusive
jurisdiction of any such court in any such action or proceeding. Borrower
irrevocably agrees that in addition to any methods of service provided for
under applicable law, all service of process in any such legal action or
proceeding may be made by certified mail, return receipt requested to the
Borrower's address pursuant to paragraph 7 below. Each Borrower and each
Guarantor shall be liable for, and hereby agrees to pay, upon demand, any and
all costs or expenses of any nature whatsoever incurred by the Lender in
endeavoring to collect or enforce this Note against any party including,
without limiting the generality of the foregoing, reasonable attorneys' fees
and expenses. The Lender shall not be deemed to have waived any of its rights
or remedies under this Note or under any of the Security Documents by any act,
delay, omission or failure or refusal to exercise any of such rights or
remedies. No waiver by Lender of any kind shall be valid unless it is in
writing and signed by an officer of the Lender, and then only to the extent
specifically stated. All of the rights and remedies of the Lender shall be
cumulative and not exclusive, and may be exercised on any one or more occasions
either singularly or concurrently.
4. Borrower hereby grants to Lender, as security for the payment
and performance of this Note, a continuing lien on and security interest in any
and all deposit accounts and funds on deposit therein (general or specific,
time or demand, regardless of maturity or the Bank branch where the deposit
accounts are held) now or hereafter held by Lender and other sums credited by
or due from Lender to Borrower or subject to withdrawal by Borrower, whether or
not any other person or persons could also withdraw money therefrom
(collectively hereinafter called the "Deposits"). After any event of default
Lender may "freeze" or place a "hold" on any Deposits by suspending Borrower's
right to withdraw the Deposits and may set off any Deposits (including those
previously frozen or placed on hold) against any amounts payable by Borrower
under this Note or any other Liabilities. Failure of the Lender to take
necessary steps to preserve rights against any parties with respect to any
property in its possession shall not be deemed a failure to exercise due care.
WAIVERS:
5. The Borrower and each Guarantor hereby (1) waive presentment,
notice of dishonor, protest, notice of protest, and any and all other notices
of any nature whatsoever in connection with the delivery, acceptance,
performance, default or enforcement of this Note and (2) consent and agree
that the Lender may at any time and from time to time without affecting the
liability of Borrower or of any Guarantor or of any other person (excepting any
person expressly released in writing) for payment of the debt evidenced by this
Note or for performance of any obligation contained herein, and without
affecting Lender's rights with respect to any security not expressly released
in writing: (a) release any person liable for all or any part of the
indebtedness or for performance of any obligation; (b) extend the time for
payment of any amounts due under this Note; (c) grant any releases, compromises
or indulgences with respect to this Note or any extensions, renewals, or
acceleration hereof or substitutions herefor or with respect to any Collateral
securing the payment of sums outstanding under this Note to any party primarily
or secondarily liable hereunder, or (d) modify the provisions of this Note all
without notice to or consent of any Borrower or any Guarantor; (3) waive all
recourse to suretyship and guarantorship defenses generally; and (4) waive
the right to direct the application of any payment hereunder. BORROWER HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS, WHETHER ARISING
UNDER THE CONSTITUTIONS OF THE UNITED STATES OR OF ANY STATE, ANY RULES OF
CIVIL PROCEDURE, COMMON OR STATUTORY LAW, OR OTHERWISE, TO DEMAND A TRIAL BY
JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM INVOLVING LENDER ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THIS NOTE OR ANY OF THE SECURITY DOCUMENTS.
MISCELLANEOUS:
6. If, for any reason, any payment to Lender applied to amounts
outstanding hereunder is required to be refunded by Lender to Borrower or to
any Guarantor or turned over by Lender to any other person or entity, Borrower
and each Guarantor agree to pay to Lender on demand an amount equal to the
payment so refunded or turned over by Lender and the liability of Borrower
and each Guarantor shall not be treated as having been discharged by the
original payment to Lender giving rise to such refunded or turned over payment.
7. All notices, demands or requests provided for or permitted to be
given pursuant to this Note must be in writing and shall be given by personal
delivery or by depositing the same in the United Sates mail, post paid and
certified, return receipt requested at the addresses set forth below,
as such addresses may be changed by notice given to the other party.
Lender's Address: Borrower's Address:
Peoples Heritage Savings Bank
One Portland Square 56 Evergreen Drive
P.O. Box 9540 Portland, Maine 04103
Portland, Maine 04112-9540
Attn: Commercial Loan Dept.
8. Each borrower and each Guarantor shall be jointly and severely
liable to the Lender under this Note and each Borrower has subscribed
his/her/its name hereto without condition that any other person or entity shall
sign or become bound hereunder and without any other conditions whatever. Any
Borrower that is a corporation hereby warrants that it is validly formed, in
existence and in good standing at the present time, with all necessary
authority to enter into, execute and deliver this Note. No invalidity or
unenforceability of any portion or obligation of this Note shall affect the
validity or enforceability of the remaining portions or obligations hereof.
This Note and all actions taken pursuant hereto shall be governed by, and
interpreted and construed in accordance with, the laws of the State of Maine.
This Note evidences a loan for business and commercial purposes and not for
personal, household, or family purposes. The use of captions in this Note is
for purposes of convenience only, and no caption shall affect the meaning of
this Note. As used herein, the word: (1) Liabilities means any and all
liabilities, indebtedness, and obligations of each Borrower and Guarantor to
Lender of any nature whatsoever, now existing or hereafter arising, due
or to become due, absolute or contingent, direct or indirect and whether joint,
several, or joint and
several; (2) Guarantor shall mean and include each endorser, surety, guarantor
or other party primarily or secondarily liable to the Lender with respect to
this Note other than the Borrower; (3) Borrower shall mean each undersigned
party; and (4) Lender shall mean Peoples Heritage SavingsBank and each future
holder of this Note. This Note and the provisions hereof shall be binding upon
the heirs, executors, administrations, successors, legal representatives and
assigns of the Borrower and each Guarantor and shall inure to the benefit of
the Lender, its successors, legal representatives and assigns. This Note is
intended to take effect as a sealed instrument.
WITNESS ImmuCell Corporation, a Delaware Corporation
By: /S/: Dan Thorton By: /S/: Michael F.
Brigham
Its: Chief Financial Officer and Treasurer
Each of the above Borrower(s) is jointly and severally liable under this
Commercial Note.
02-122 9/92
White - Note File Canary - Loan Servicing
Pink - Collateral File Goldenrod - Credit