1
EXHIBIT 10(rr)
LOAN AGREEMENT
Webster Bank
a Connecticut banking association
with a place of business at
80 Elm Street
New Haven, Connecticut 06510
(Hereinafter referred to as the "Bank")
Novametrix Medical Systems Inc.
a Delaware corporation
with a place of business at
5 Technology Drive, P.O. Box 690
Wallingford, Connecticut 06492
("Novametrix")
NTC Technology Inc.
a Delaware corporation
with a place of business at
5 Technology Drive, P.O. Box 690
Wallingford, Connecticut 06492
("NTC")
Children's Medical Ventures, Inc.
a Delaware corporation
with a place of business at
541 Main Street
South Weymouth, Massachusetts 02190
("CMV"; Novametrix, NTC and CMV being,
individually and collectively "Borrower")
This Loan Agreement ("Agreement") is entered into as of June 30, 1999, by and
between Bank and Borrower.
RECITALS
Borrower is acquiring all of the issued and outstanding stock in CMV for the sum
of $8,750,000. Borrower has requested that Bank and First Union National Bank, a
national banking association with a place of business at 300 Main Street,
Stamford, CT ("First Union") each lend the sum of $4,800,000.00 to fund such
purchase. Bank is
E-60
2
willing to lend such $4,800,000.00 as a term loan (the "Loan"), which Loan is to
be evidenced by a Term Promissory Note in the amount of $4,800,000.00 dated of
even date herewith, together with any note which from time to time extends,
amends, supplements, modifies, renews or substitutes for such note, the "Note").
In consideration of Bank's making of the Loan to Borrower and the agreements
contained herein, the parties agree as follows:
This Agreement applies to the Loan and all Loan Documents. The terms "Loan
Documents" and "Obligations" as used in this Agreement shall have the collective
meanings of such terms as defined in the Note.( The term "Borrower" shall
include each entity constituting the Borrower, and each of their respective
Subsidiaries and Affiliates, all individually and collectively, jointly and
severally. As used in this Agreement as to Borrower, "Subsidiary" shall mean any
corporation of which more than 50% of the issued and outstanding voting stock is
owned directly or indirectly by Borrower. As to Borrower, "Affiliate" shall have
the meaning as defined in 11 U.S.C. Section 101, except that the term "debtor"
therein shall be substituted by the term "Borrower" herein.
This Agreement and the Loans contemplated and covered herein are subject to that
certain Intercreditor Agreement by and between the Bank and First Union. The
parties acknowledge and agree that Borrower is entering into a Loan Agreement
and related loan documents ("First Union Loan Documents") and is executing and
delivering (or has executed and delivered) to First Union a certain Term
Promissory Note in the original principal amount of $4,800,000.00, dated as of
even date herewith (the "1999 First Union Term Promissory Note"), a certain 1998
Term Promissory Note executed and delivered by Novametrix and NTC dated as of
December 11, 1998 in the original principal amount of $3,000,000 as modified by
Allonge No. 1 to 1998 Term Promissory Note dated as of even date herewith ("1998
First Union Term Promissory Note") and a certain 1999 Substitute Promissory Note
dated as of even date herewith ("Line of Credit Note")(the 1999 First Union Term
Promissory Note, the 1998 First Union Term Promissory Note and the Line of
Credit Note are hereinafter collectively referred to as the "First Union
Notes").
E-61
3
Relying upon the covenants, agreements, representations and warranties contained
in this Agreement, Bank is willing to extend credit to Borrower upon the terms
and subject to the conditions set forth herein, and Bank and Borrower agree as
follows:
REPRESENTATIONS. Borrower represents that from the date of this Agreement and
until final payment in full of the Obligations: ACCURATE INFORMATION. All
information now and hereafter furnished to Bank is and will be true, correct and
complete. Any such information relating to Borrower's financial condition will
accurately reflect Borrower's financial condition as of the date(s) thereof
(including all contingent liabilities of every type), and Borrower further
represents that its financial condition has not changed materially or adversely
since the date(s) of such documents. AUTHORIZATION; NON-CONTRAVENTION. The
execution, delivery and performance by Borrower and any guarantor, as
applicable, of this Agreement and other Loan Documents to which it is a party
are within its power, have been duly authorized by all necessary action taken by
the duly authorized officers of Borrower and any guarantors and, if necessary,
by making appropriate filings with any governmental agency or unit and are the
legal, binding, valid and enforceable obligations of Borrower and any
guarantors; and do not (i) contravene, or constitute (with or without the giving
of notice or lapse of time or both) a violation of any provision of applicable
law, a violation of the organizational documents of Borrower or any guarantor,
or a default under any agreement, judgment, injunction, order, decree or other
instrument binding upon or affecting Borrower or any guarantor, (ii) result in
the creation or imposition of any lien (other than the lien(s) created by the
Loan Documents) on any of Borrower's or guarantor's assets, or (iii) give cause
for the acceleration of any obligations of Borrower or any guarantor to any
other creditor. ASSET OWNERSHIP. Borrower has good and marketable title to all
of the properties and assets reflected on the balance sheets and financial
statements supplied to Bank by Borrower, and all such properties and assets are
free and clear of mortgages, security deeds, pledges, liens, charges, and all
other encumbrances, except as otherwise disclosed to Bank by Borrower on
Schedule I attached hereto ("Permitted Liens"); To Borrower's knowledge, no
default has occurred
E-62
4
under any Permitted Liens and no claims or interests adverse to Borrower's
present rights in its properties and assets have arisen. DISCHARGE OF LIENS AND
TAXES. Borrower has duly filed, paid and/or discharged all taxes or other claims
which may become a lien on any of its property or assets, except to the extent
that such items are being appropriately contested in good faith and an adequate
reserve for the payment thereof is being maintained. SUFFICIENCY OF CAPITAL.
Borrower is not, and after consummation of this Agreement and after giving
effect to all indebtedness incurred and liens created by Borrower in connection
with the Loan, will not be, insolvent within the meaning of 11 U.S.C. Section
101(32). COMPLIANCE WITH LAWS. Borrower is in compliance in all respects with
all federal, state and local laws, rules and regulations applicable to its
properties, operations, business, and finances, including, without limitation,
any federal or state laws relating to liquor (including 18 U.S.C. Section 3617,
et seq.) or narcotics (including 21 U.S.C.Section 801, et seq.) and/or any
commercial crimes; all applicable federal, state and local laws and regulations
intended to protect the environment; and the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), if applicable. ORGANIZATION AND AUTHORITY.
Each Borrower is duly created, validly existing and in good standing under the
laws of the state of its organization, and has all powers, governmental
licenses, authorizations, consents and approvals required to operate its
business as now conducted. Each Borrower is duly qualified, licensed and in good
standing in each jurisdiction where qualification or licensing is required by
the nature of its business or the character and location of its property,
business or customers, and in which the failure to so qualify or be licensed, as
the case may be, in the aggregate, could have a material adverse effect on the
business, financial position, results of operations, properties or prospects of
Borrower or any such guarantor. NO LITIGATION. There are no pending or
threatened suits, claims or demands against Borrower or any guarantor that have
not been disclosed to Bank by Borrower on Schedule II attached hereto. There is
no litigation set forth on Schedule II, the outcome of which would materially
and adversely affect the Borrower. REGULATION U. None of the proceeds of the
Loan made pursuant to this Agreement shall be used directly or indirectly for
the purpose of purchasing or carrying any margin stock in violation of any of
the provisions of Regulation U of the Board of Governors
E-63
5
of the Federal Reserve System ("Regulation U"), or for the purpose of reducing
or retiring any indebtedness which was originally incurred to purchase or carry
margin stock or for any other purchase which might render the Loan a "Purpose
Credit" within the meaning of Regulation U. ERISA. Each employee pension benefit
plan, as defined in ERISA, maintained by Borrower meets, as of the date hereof,
the minimum funding standards of ERISA and all applicable regulations thereto
and requirements thereof, and of the Internal Revenue Code of 1986, as amended.
No "Prohibited Transaction" or "Reportable Event" (as both terms are defined by
ERISA) has occurred with respect to any such plan.
AFFIRMATIVE COVENANTS. Borrower agrees that from the date of this Agreement and
until final payment in full of the Obligations, unless Bank shall otherwise
consent in writing, Borrower will: BUSINESS CONTINUITY. Conduct its business in
substantially the same manner and locations as such business is now and has
previously been conducted. MAINTAIN PROPERTIES. Maintain, preserve and keep its
property in good repair, working order and condition, making all needed
replacements, additions and improvements thereto, to the extent allowed by this
Agreement. ACCESS TO BOOKS & RECORDS. Allow Bank, or its agents, during normal
business hours, access to the books, records and such other documents of
Borrower as Bank shall reasonably require, and allow Bank to make copies thereof
at Bank's expense. INSURANCE. Maintain adequate insurance coverage with respect
to its properties and business against loss or damage of the kinds and in the
amounts customarily insured against by companies of established reputation
engaged in the same or similar businesses including, without limitation,
commercial general liability insurance, workers compensation insurance, and
business interruption insurance; all acquired in such amounts and from such
companies as Bank may reasonably require. NOTICE OF DEFAULT AND OTHER NOTICES.
(a) Notice of Default. Furnish to Bank immediately upon becoming aware of the
existence of any condition or event which constitutes a Default (as defined in
the Loan Documents) or any event which, upon the giving of notice or lapse of
time or both, may become a Default, written notice specifying the nature and
period of existence thereof and the action which Borrower is taking or proposes
to take with respect thereto. (b) Other Notices. Promptly notify Bank in writing
of (i) any
E-64
6
material adverse change in its financial condition or its business; (ii) any
default under any material agreement, contract or other instrument to which it
is a party or by which any of its properties are bound, or any acceleration of
the maturity of any indebtedness owing by Borrower; (iii) any material adverse
claim against or affecting Borrower or any part of its properties; (iv) the
commencement of, and any material determination in, any litigation with any
third party or any proceeding before any governmental agency or unit affecting
Borrower; and (v) at least 30 days prior thereto, any change in Borrower's name
or address as shown above, and/or any change in Borrower's structure. COMPLIANCE
WITH OTHER AGREEMENTS. Comply with all terms and conditions contained in this
Agreement, and any other Loan Documents, and swap agreements, if applicable, as
defined in the Notes. PAYMENT OF DEBTS. Pay and discharge when due, and before
subject to penalty or further charge, and otherwise satisfy before maturity or
delinquency, all obligations, debts, taxes, and liabilities of whatever nature
or amount, except those which Borrower in good faith disputes. REPORTS AND
PROXIES. Deliver to Bank, promptly, a copy of all financial statements, reports,
notices, and proxy statements, sent by Borrower to stockholders, and all regular
or periodic reports required to be filed by Borrower with any governmental
agency or authority. OTHER FINANCIAL INFORMATION. Deliver promptly such other
information regarding the operation, business affairs, and financial condition
of Borrower which Bank may reasonably request. NON-DEFAULT ESTOPPEL CERTIFICATE.
Furnish, within 15 days after request by Bank, a written statement duly
acknowledged of the amount due under the Loan and whether offsets or defenses
exist against the Obligations.
NEGATIVE COVENANTS. Borrower agrees that from the date of this Agreement and
until final payment in full of the Obligations, unless Bank shall otherwise
consent in writing, Borrower will not: DEFAULT ON OTHER CONTRACTS OR
OBLIGATIONS. Default on any material contract with or obligation when due to a
third party or default in the performance of any obligation to a third party
incurred for money borrowed in an amount in excess of $25,000.00. JUDGMENT
ENTERED. Permit the entry of any monetary judgment or the assessment against,
the filing of any tax lien against, or the issuance of any writ of garnishment
or attachment against any property of or debts due Borrower in
E-65
7
an amount in excess of $25,000.00 and that is not discharged or execution is not
stayed within Thirty (30) days of entry. GOVERNMENT INTERVENTION. Permit the
assertion or making of any seizure, vesting or intervention by or under
authority of any government by which the management of Borrower or any guarantor
is displaced of its authority in the conduct of its respective business or such
business is materially curtailed or materially impaired. PREPAYMENT OF OTHER
DEBT. Retire any long-term debt entered into prior to the date of this Agreement
at a date in advance of its legal obligation to do so. RETIRE OR REPURCHASE
CAPITAL STOCK. Without prior written consent of the Bank, expend more than
$6,000,000 in the aggregate during the term of this Agreement to retire or
otherwise acquire any of its capital stock. CHANGE OF CONTROL. Borrower shall
not make a material change in executive management without prior written consent
of the Bank. Borrower shall not make a material change in ownership that
effectively changes control of Borrower without prior written consent of the
Bank. CHANGE IN FISCAL YEAR. Borrower or guarantor shall not change its fiscal
year without prior written consent of the Bank. GUARANTEES. Guarantee or
otherwise become responsible for obligations of any other person or entity other
than the endorsement of checks and drafts for collection in the ordinary course
of business. ENCUMBRANCES. Create, assume, or permit to exist any mortgage,
security deed, deed of trust, pledge, lien, charge or other encumbrance on any
of its assets, whether now owned or hereafter acquired, other than: (i) security
interests required by the Loan Documents;(ii) liens for taxes contested in good
faith; (iii) liens accruing by law for employee benefits; or (iv) Permitted
Liens.
FINANCIAL COVENANTS. All financial covenants shall be tested quarterly, unless
specifically otherwise noted. Borrower agrees to the following provisions, all
of which shall be on a consolidated basis, from the date hereof until final
payment in full of the Obligations, unless Bank shall otherwise consent in
writing: FUNDED DEBT TO EBITDA RATIO. Beginning April 30, 2000 and for the
following three fiscal quarters, Borrower shall maintain a ratio of Funded Debt
to EBITDA of not more than 1.60 to 1.00. Beginning April 30, 2001 and for the
following three fiscal quarters, Borrower shall maintain a ratio of Funded Debt
to EBITDA of not more than 1.25 to 1.0. At all times
E-66
8
thereafter, Borrower shall maintain said ratio of not more than 1.00 to 1.00.
This covenant shall be tested on a rolling four quarter basis. "Funded Debt"
shall mean, as applied to any person or entity, the sum of all indebtedness for
borrowed money including, without limitation, capital lease obligations,
subordinated debt (including debt subordinated to the Bank), and unreimbursed
drawings under letters of credit, or any other monetary obligation evidenced by
a note, bond, debenture or other agreement of that person or entity. "EBITDA"
shall mean earnings before interest, taxes, depreciation and amortization. FIXED
CHARGE COVERAGE RATIO. Beginning April 30, 2000 and for the following three
fiscal quarters, Borrower shall maintain a Fixed Charge Coverage Ratio of not
less than 1.50 to 1.00. Beginning April 30, 2001 and for all fiscal quarters
thereafter, Borrower shall maintain a Fixed Charge Coverage Ratio of not less
than 1.75 to 1.00. This covenant shall be tested on a rolling four quarter
basis. "Fixed Charge Coverage" shall mean the sum of net income plus taxes,
depreciation, amortization and interest expense less capital expenditures not
financed divided by the sum of interest expense and amounts repaid on long term
debt and capital lease obligations and unfunded capital expenditures during the
prior four fiscal quarters. WORKING CAPITAL. Borrower shall, from closing
through fiscal year ending April 30, 2000, maintain Working Capital of at least
$13,000,000. Borrower shall at all times thereafter, maintain Working Capital of
at least $14,000,000. "Working Capital" shall mean current assets minus current
liabilities including borrowings under the Line of Credit Note. TANGIBLE NET
WORTH. Borrower shall, from closing until the end of the third fiscal quarter,
January 31, 2000, maintain a Tangible Net Worth of at least $11,500,000.00; for
fiscal year-end April 30, 2000, maintain a Tangible Net Worth of at least
$16,000,000.00. For each fiscal year thereafter, Tangible Net Worth shall
increase by not less than fifty percent (50%) of net income plus one hundred
percent (100%) of additions to paid in capital realized in such fiscal year.
"Tangible Net Worth" shall mean the total assets minus total liabilities. For
purposes of this computation, the aggregate amount of any intangible assets of
Borrower including, without limitation, goodwill, franchises, licenses, patents,
trademarks, trade names, copyrights, service marks, and brand names, shall be
subtracted from total assets, and total liabilities shall include subordinated
debt. After
E-67
9
April 30, 2000, this covenant shall be tested annually. LIMITATION ON DEBT.
Borrower shall not create, assume or become liable, directly or indirectly, for
any debt, contingent or direct, if, giving effect to such additional debt on a
proforma basis, causes the aggregate amount of Borrower's debt, including
obligations to Bank and First Union, to exceed nineteen million dollars
($19,000,000.00). DIVIDENDS. Borrower shall not, during any fiscal year, declare
or pay dividends in any amount.
ANNUAL FINANCIAL STATEMENTS. Borrower shall deliver to Bank, within 90 days
after the close of each fiscal year, audited financial statements reflecting its
operations during such fiscal year, including, without limitation, a balance
sheet, profit and loss statement and statement of cash flows, with supporting
schedules; all on a consolidated basis and in reasonable detail, prepared in
conformity with generally accepted accounting principles, applied on a basis
consistent with that of the preceding year. All such statements shall be
examined by an independent certified public accountant reasonably acceptable to
Bank. The opinion of such independent certified public accountant shall not be
acceptable to Bank if qualified due to any limitations in scope imposed by
Borrower or its Subsidiaries, if any. Any other qualification of the opinion by
the accountant shall render the acceptability of the financial statements
subject to Bank's approval. Such statements shall be certified as to their
correctness by a principal financial officer of Borrower. CERTIFICATE OF FULL
COMPLIANCE FROM ACCOUNTANT. Borrower shall deliver to Bank, with the annual
financial statements required above, a certification by Borrower's independent
certified public accountant that Borrower is in full compliance with the Loan
Documents. NON-DEFAULT CERTIFICATE FROM BORROWER. Borrower shall deliver to
Bank, with the annual financial statements required above, a certificate
reasonably satisfactory to Bank in form and substance, signed by Borrower, by a
principal financial officer of Borrower, showing calculations of financial
covenant formulas and warranting that no "Default" as specified in the Loan
Documents, nor any event which, upon the giving of notice or the lapse of time
or both, would constitute such a Default, has occurred.
PERIODIC FINANCIAL STATEMENTS. Borrower shall deliver to Bank unaudited
management-prepared quarterly financial
E-68
10
statements, including, without limitation, a balance sheet, profit and loss
statement and statement of cash flows, with supporting schedules, as soon as
available and in any event within 45 days after the close of each such period;
all in reasonable detail and prepared in conformity with generally accepted
accounting principles, applied on a basis consistent with that of the preceding
period. Such statements shall be certified as to their correctness by a
principal financial officer of Borrower.
NON-DEFAULT CERTIFICATE FROM BORROWER. Borrower shall have delivered to Bank,
with the periodic financial statements required above, a certificate, reasonably
satisfactory to Bank in form and substance, signed by Borrower, by a principal
financial officer of Borrower, showing calculations of financial covenant
formulas and warranting that no "Default" as specified in the Loan Documents,
nor any event which, upon the giving of none or the lapse of time or both, would
constitute such a Default, has occurred.
FINANCIAL AND OTHER INFORMATION. Borrower shall deliver to Bank such information
as Bank may reasonably request from time to time, including without limitation,
financial statements and information pertaining to Borrower's financial
condition. Such information shall be true, complete, and accurate.
PREPAYMENT. Any and all proceeds from the exercise of Class B Warrants will be
required to be paid as additional principal reduction as follows: first, to the
First Union 1998 Term Note (as defined in a certain 1999 Amended and Restated
Loan Agreement between First Union and Borrower of even date herewith (the
"First Union Loan Agreement")), the First Union 1999 Term Note and the Note in
such proportions as determined by the Borrower; then, to any outstanding balance
on the First Union Line of Credit Note (as defined in the First Union Loan
Agreement). Monies received by Bank from any source for application toward
payment of the Obligations shall be applied first to unpaid fees and expenses,
then to accrued interest and then to principal.
In the event that the Class B Warrants are not exercised, or that the net
proceeds of any exercise of Class B Warrants are less than two million five
hundred thousand
E-69
11
($2,500,000.00), Borrower will be required to pay annually an additional
principal payment, to be applied as set forth above, equal to 35% of Excess Cash
Flow. Such payment shall be due within ninety (90) days of each fiscal year end
commencing with fiscal year end April 30, 2000. For purposes hereof "Excess Cash
Flow" means EBITDA minus any cash payments of taxes, minus principal and
interest paid, minus unfunded capital expenditures to a maximum annual amount of
$1,000,000.00.
YEAR 2000 COMPATIBILITY. Borrower shall take all action necessary to assure that
Borrower's computer based systems are able to operate and effectively process
data including dates on and after January 1, 2000. At the request of Bank,
Borrower shall provide Bank assurance reasonably acceptable to Bank of
Borrower's Year 2000 compatibility.
CONDITIONS PRECEDENT. The obligations of Bank to make the Loan are subject to
the following conditions precedent: ADDITIONAL DOCUMENTS. Receipt by Bank of
such additional supporting documents as Bank or its counsel may reasonably
request. PAYMENT OF COMMITMENT FEE. Borrower shall have paid to the Bank a one
time commitment fee of $12,500.00 for the Loan. OPERATING DOCUMENTS. Receipt by
Bank of a copy of Borrower's by-laws, partnership agreement, or operating
agreement, and of Borrower's authorizing resolutions in connection with the
Loan, certified as to completeness and accuracy by an appropriate officer of
borrower. ERISA. Each employee pension benefit plan, as defined in ERISA,
maintained by Borrower meets, as of the date of closing, the minimum funding
standards of ERISA and all applicable regulations thereto and requirements
thereof, and of the Internal Revenue Code of 1986, as amended. No "Prohibited
Transaction" or "Reportable Event" (as both terms are defined in ERISA) has
occurred with respect to any such plan. CERTIFICATE OF GOOD STANDING. On or
prior to the date hereof, Bank shall have received from Borrower a certificate
from the Secretary of State of the state of Borrower's incorporation or
organization, as applicable, as to the good standing of Borrower. CHARTER
DOCUMENTS. On or prior to the date hereof, Bank shall have received from
Borrower a copy of the Articles of Incorporation and all other charter documents
of Borrower, all certified by the Secretary of State of the state of Borrower's
incorporation or organization, as applicable. CERTIFICATE OF INCUMBENCY. On or
prior to the date hereof,
E-70
12
Bank shall have received from Borrower a certificate of an appropriate officer
of Borrower as to the incumbency and signatures of the officers of Borrower
executing the Loan Documents. CREDIT INSURANCE. Borrower shall, within ninety
(90) days following the closing, have obtained and shall provide Bank with
evidence, in form and substance reasonably satisfactory to Bank of, credit
insurance on all foreign accounts receivable. OPINION OF COUNSEL. On or prior to
the date hereof, Bank shall have received a written opinion of the counsel of
Borrower acceptable to Bank that includes confirmation of the following: (a) The
Borrower is duly organized and validly existing under the laws of the
jurisdictions where Borrower is organized and have full power and authority to
undertake the activities contemplated by the Loan. (b) The Loan Documents create
a perfected lien on and security interest in the Collateral (as defined in the
Loan Documents). (c) The accuracy of the representations set forth in this
Agreement in the Representations Subparagraphs entitled "Authorization;
Non-Contravention"; "Compliance with Laws" as to the transaction contemplated by
this Agreement and the documents pertaining thereto, and "Organization and
Authority". (d) This Agreement and other Loan Documents have been duly executed
and delivered by Borrower and constitute the legal, valid and binding
obligations of Borrower, enforceable in accordance with their terms. (e) No
registration with, consent of, approval of, or other action by, any federal,
state or other governmental authority or regulatory body to the execution and
delivery of this Agreement, the borrowing under this Agreement or other Loan
Documents, is required by law, or, if so required, such registration has been
made, and consent or approval given or such other appropriate action taken. (f)
The Loan and its terms do not violate any laws including, without limitation,
any usury laws of the jurisdictions where Borrower and any Collateral are
located; such other matters and opinions as the Bank reasonably requests.
Borrower agrees, upon request of the Bank from time to time, to provide Bank
with a then-current Certificate of Good Standing, Charter Documents or
Certificate of Incumbency.
JOINT AND SEVERAL OBLIGATIONS. The obligations of the Borrower hereunder and
under the Notes shall be joint and several.
E-71
13
MISCELLANEOUS. This Agreement shall be construed in accordance with and governed
by the laws of the State of Connecticut without reference to conflicts of laws
principles. This Agreement and the other Loan Documents constitute the sole
agreement of the parties with respect to the subject matter thereof and
supersede all oral negotiations and prior writings with respect to the subject
matter thereof. No amendment of this Agreement, and no waiver of any one or more
of the provisions hereof shall be effective unless set forth in writing and
signed by the parties hereto. The illegality, unenforceability or inconsistency
of any provision of this Agreement shall not in any way affect or impair the
legality, enforceability or consistency of the remaining provisions of this
Agreement or the other Loan Documents. This Agreement and the other Loan
Documents are intended to be consistent. However, in the event of any
inconsistencies among this Agreement and any of the Loan Documents, the terms of
the Notes, and then this Agreement, shall control. This Agreement may be
executed in any number of counterparts and by the different parties on separate
counterparts. Each such counterpart shall be deemed an original, but all such
counterparts shall together constitute one and the same agreement. Terms used in
this Agreement which are capitalized and not otherwise defined herein shall have
the meanings ascribed to such terms in the Loan Documents.
CONNECTICUT PREJUDGMENT REMEDY WAIVER. EACH BORROWER ACKNOWLEDGES THAT THE
TRANSACTIONS REPRESENTED BY THIS AGREEMENT ARE COMMERCIAL TRANSACTIONS AND
HEREBY VOLUNTARILY AND KNOWINGLY WAIVES ANY RIGHTS TO NOTICE OF AND HEARING ON
PREJUDGMENT REMEDIES UNDER CHAPTER 903A OF THE CONNECTICUT GENERAL STATUTES OR
OTHER STATUTES AFFECTING PREJUDGMENT REMEDIES, AND AUTHORIZES THE BANK'S
ATTORNEY TO ISSUE A WRIT FOR A PREJUDGMENT REMEDY WITHOUT COURT ORDER, PROVIDED
THE COMPLAINT SHALL SET FORTH A COPY OF THIS WAIVER.
WAIVER OF JURY TRIAL. WITH RESPECT TO ANY CONTROVERSY, ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THE TRANSACTIONS DESCRIBED
HEREIN OR CONTEMPLATED HEREBY, INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH
THE LOAN OR THE OBLIGATIONS, THE COLLATERAL AND/OR ANY OF THE LOAN DOCUMENTS,
BORROWER AND BANK EACH VOLUNTARILY AND KNOWINGLY WAIVES ANY RIGHT TO OR CLAIM
FOR A TRIAL BY JURY.
E-72
14
IN WITNESS WHEREOF, Borrower and Bank, on the day and year first written above,
have caused this Agreement to be executed under seal.
NOVAMETRIX MEDICAL SYSTEMS INC.
By:_____________________________
name:
title:
NTC TECHNOLOGY INC.
By:_____________________________
name:
title:
CHILDREN'S MEDICAL VENTURES, INC.
By:_____________________________
name:
title:
WEBSTER BANK
By:______________________________
name:
title:
E-73