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EXHIBIT 10.9
CREDIT AGREEMENT
BANK ONE, LAFAYETTE, NA, a national banking association (the "Bank") and
Bioanalytical Systems, an Indiana corporation (the "Company") hereby enter into
this Credit Agreement ("Agreement") as of this 24th day of, July , 1992.
I. CREDIT FACILITY.
A. THE TERM LOAN. The Bank agrees to make a term loan to the
Company in the principal amount of Three Hundred Thousand and no/l00 Dollars
($300,000.00) (the "Term Loan").
1. Interest Rate. The Term Loan shall bear interest until
maturity at a per annum rate equal to the Prime Rate plus One and
One-quarter percent (l 1/4%) or a fixed rate of Eight and 50/l00 percent
(8.50%) or a fixed rate of nine and 00/l00 (9%) percent calculated on the
basis of a 360 day year. "Prime Rate" is the rate of interest established
and quoted by Bank One, Indianapolis, NA from time to time as its Prime
Rate, such rate to change contemporaneously with each change in such
established and quoted rate; provided, that it is understood that the
Prime Rate shall not necessarily be representative of the rate of interest
actually charged by the Bank on any loan or class of loans. After
maturity, whether at scheduled maturity or at maturity resulting from
acceleration upon the occurrence of an Event of Default (as hereinafter
defined), and until paid in full, the Term Loan shall bear interest rate
per annum equal to the prime rate plus four (4%) percent.
2. Principal and Interest Payments.
The Company shall repay the principal amount of the Term Loan in
monthly installments beginning on August 24, 1992, and on the 24th day of
each successive month thereafter until July 24, 1997, on which date the
entire unpaid principal balance of the Term Loan and all accrued interest
thereon shall be due and payable. Monthly installments would be $4,565.00
based upon a variable rate at one and one-quarter percent above the Prime
Rate, or $4,751.00 based upon a fixed interest rate of 8 1/2% for a term
of three (3) years, or $4,827.00 based upon a fixed interest rate of 9%
for a term of five (5) years with monthly payments which include principal
and interest beginning thirty (30) days from the date of the note.
The Term Loan shall be repaid on the 24th day of each consecutive
month in the aggregate amount for principal and interest of Four Thousand
Eight Hundred and Twenty Seven Dollars ($4,827.00) each based on a seven
(7) year level payment amortization schedule. In the event the Prime Rate
changes such that the amount of such payment does not adequately cover
interest, the Bank reserves the right to adjust the amount of such monthly
payments.
"Banking Day" is a day on which the principal office of the Bank in
Lafayette, Indiana is open for the purpose of conducting substantially all
of its banking activities.
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3. Use of Proceeds of Term Loan. Proceeds of the Term Loan
shall be used to payoff first mortgage bonds on the 2701 Kent Avenue,
West Lafayette, Indiana commercial facility held by 1st National Bank
of Louisville.
II. REPRESENTATIONS AND WARRANTIES. The company hereby represents and
warrants to the Bank that:
A. Corporate Existence and Authority. The Company is a corporation
duly organized and validly existing under the laws of the State of Indiana.
B. Proper Authorization and No Conflict. The execution and
delivery of this Agreement and the promissory notes evidencing the Term Loan
and the collateral documents described herein (all such agreements and
documents called the "Loan Documents") and the performance by the Company of
its obligations thereunder, are within the Company's corporate powers, have
been duly authorized by all necessary corporate action, and do not and will not
contravene or conflict with any provision of law, the Articles of Incorporation
or By-Laws of the Company, or any agreement binding upon the Company or its
property.
C. Valid and Binding Nature of Loan Documents. The Loan Documents
are the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, except to the
extent that the enforcement thereof may be limited by bankruptcy or other laws
enacted for the relief of debtors generally.
D. Financial Statements. All financial statements and other
financial data which have been or will be furnished to the Bank by the Company
are and will be true and correct, reflect and will reflect fairly the financial
condition of the Company, and have been and will be prepared in accordance with
generally accepted accounting principals consistently applied.
E. Litigation and Contingent Liabilities. No litigation or other
legal or regulatory proceedings are pending or threatened against the Company
which, if adversely determined, would have a material adverse effect on the
financial condition of the Company or on the results of its operations.
F. Taxes. All required tax returns of the Company have been filed.
All taxes which are due and payable have been paid, together with interest and
penalties, if any.
G. Hazardous Substances. To the best knowledge of the Company
after due inquiry and investigation, there are no underground storage tanks of
any kind on any premises owned or occupied by or under lease to the Company,
and there are no tanks, drums or other containers of any kind on premises owned
or occupied by or under lease to the Company, the contents of which are unknown
to the Company, and no premises owned or occupied by or under lease to the
Company have ever been used, and as of the date of this Agreement, no such
premises are being used, for any activities involving the use, treatment,
transportation, generation, storage or disposal of any Hazardous
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Substances in hazardous quantities, and no Hazardous Substances in hazardous
quantities have been released on any such premises, nor is there any threat of
release of any Hazardous Substances in hazardous quantities on any such
premises. For purposes of this Agreement, "Hazardous Substances" means any
hazardous or toxic substance regulated by any federal, state or local statute.
III. COLLATERAL. The Term Loan will be secured by:
A. Mortgage. A real estate mortgage on the real property of the
company located at 2701 Kent Avenue, West Lafayette, Tippecanoe County, State
of Indiana, and more particularly described in the Real Estate Mortgage,
executed by the Company in favor of the Bank (the "Mortgage").
All of the documents described in this Section shall be in form and
substance acceptable to the Bank.
IV. AFFIRMATIVE COVENANTS. Until the Term Loan is paid in full, the
Company agrees that it will:
A. Financial Statements. Furnish the Bank within One Hundred and
Twenty (120) days after the close of each fiscal year audited financial
statements of the Company for such fiscal year prepared by independent
certified public accountants approved by the Bank, and within forty five (45)
days after the close of each month a balance sheet and statement of income for
the month and for the partial fiscal year ended as of the end of the month all
in reasonable detail and certified by the chief financial officer of the
Company as accurate and as having been prepared in accordance with generally
accepted accounting principals, to the extend applicable, consistently applied,
and with such other financial information as the Bank may request from time to
time.
B. Audit. At all reasonable times permit the Bank and its duly
authorized representatives to examine and audit the books, records and physical
properties of the Company.
C. Discharge Liabilities. Pay and discharge all current
obligations as they mature and all taxes, assessments, and other governmental
charges or levies before penalties attach, except such as are being
appropriately contested in good faith and for which adequate reserves are being
maintained.
D. Insurance. Maintain adequate insurance such as is customarily
maintained by similar businesses and as may be reasonably requested by the
Bank, with all policies naming the Bank as lender loss payee.
E. Notice. Inform the Bank immediately of any occurrence,
including litigation, which may have a material adverse effect on the financial
condition of the Company.
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F. Hazardous Substances. Immediately notify the Bank of the
commencement of any use, treatment, transportation, generation, storage or
disposal of any Hazardous Substance (defined above) in hazardous quantities in
its operations or the operations of any subsidiary, and cause any Hazardous
Substances which are now or may hereafter be used or generated in the
operations of the Company or any subsidiary in hazardous quantities to be
accounted for and disposed of in compliance with all applicable federal, state,
and local laws and regulations. Further, the Company shall also notify the
Bank immediately upon obtaining knowledge that: (a) any premises which have at
any time have been owned or occupied by or have been under lease to the Company
or any subsidiary are the subject of an environmental investigation by any
federal, state or local governmental agency having jurisdiction over the
regulation of any Hazardous Substances, the purpose of which investigation is
to quantify the levels of Hazardous Substances located on such premises, and
(b) the Company or any subsidiary has been named or is threatened to be named
as a party responsible for the possible contamination of any real property or
ground water with Hazardous Substances, including but not limited to, the
contamination of past and present waste disposal sites. The Company shall
establish reserves (determined in accordance with generally accepted accounting
principals) in the amount of such potential liability.
G. Maintain Existence. Maintain the corporate existence of the
Company.
H. Banking Accounts. Maintain the company's deposit account with
Bank One, Lafayette, NA until all indebtedness under this agreement has been
repaid.
V. NEGATIVE COVENANTS. Until the Term Loan is paid in full, the
company will not:
A. Merge. Merge or consolidate with or into any other entity or
acquire any equity interest in any other business entity, without prior written
Bank approval.
B. Hazardous Substances. Allow or permit to continue the release
or threatened release of any Hazardous Substances on any premises owned or
occupied by or under lease to the Company or any subsidiary.
C. Debt. Incur or permit to exist any indebtedness for borrowed
money except to the Bank (other than in the normal course of business), without
prior written Bank approval.
D. Guaranties and Loans. Assume, guarantee, or endorse any
obligation of any other person, firm or corporation, except negotiable
instruments for deposit in the ordinary course of business, or loan or make any
advances to any other person or entity except credit accommodations to
customers or vendors in the ordinary course of business and reasonable salary
advances to non-executive employees, without prior written Bank approval.
E. Liens. Create or permit any liens on the Company's property,
except liens in favor of the Bank and any other liens permitted to exist with
the Bank's prior written approval.
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VI. DEFAULT AND REMEDIES.
A. Events of Default. An Event of Default shall occur hereunder
if:
1. Non Payment the Company fails to pay within 30 days when
due any installment of principal or interest on the Term Loan; or
2. Negative and Financial Covenant Default the Company fails or
omits to perform, observe, or comply with any of the terms, agreements,
conditions or covenants contained in the Section of this Agreement regarding
Negative Covenants, or financial covenants in the Section of this Agreement
regarding Affirmative Covenants, or in any agreement executed in connection
herewith; or
3. Affirmative Covenant Default the Company fails or omits to
perform, observe, or comply with any of the terms, agreements, conditions or
covenants contained in the Section of this Agreement regarding Affirmative
Covenants other than financial covenants and the failure of the Company to cure
such failure of omission within 30 days after delivery of written notice of
such a failure or omission by the Bank to the Company.
4. Misrepresentation any warranty, representation, certificate
or statement of the Company made in or pursuant to this Agreement is
false or materially misleading in any material respect; or
5. Cross-Default the Company defaults under any other agreement,
indenture, instrument or note for borrowed money, the effect of which
accelerates or entitles the holder of any such indebtedness to accelerate the
maturity thereof; or
6. Transfer of Assets any assignment, transfer, or other
disposition of any interest in the Company occurs outside the ordinary course
of business without the express written consent of the Bank; or
7. Dissolution if the dissolution, termination of existence, or
business failure of the Company occurs; or
8. Receiver the Company consents to the appointment of a
receiver, liquidator, assignee, trustee or custodian for the Company, or a
receiver, liquidator, assignee, trustee or custodian takes possession of any
substantial part of the property of the Company, or if the Company makes any
assignment for the benefit of any creditors; or
9. Liens any property of the Company is subject to attachment,
garnishment, lien, or other legal process (except the lien in favor of the
Bank or any other liens permitted by the Bank in writing or pursuant to the
terms of this Agreement); or
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10. Bankruptcy any proceedings under any bankruptcy or
insolvency laws are commenced by or against the Company, in the event such
proceedings are commenced against the Company have not been dismissed within
sixty (60) days after their institution.
B. Remedies. Upon the occurrence of a Event of Default
described in the subsection above captioned "Bankruptcy," the outstanding
principal balance of the Term Loan together with accrued interest thereon shall
become immediately due and payable, all without notice of any kind. Upon the
occurrence of any other Event of Default described above, the Bank may, at its
option, declare immediately due and payable the outstanding principal balance
of the Term Loan, together with interest thereon, which shall be immediately
due and payable without demand or notice of any kind. Upon the occurrence of
an Event of Default, the Bank, in addition to any other rights or remedies it
may have, shall have and may exercise immediately and without demand any and
all rights and remedies granted to the Bank under the Loan Documents.
VII. CONDITIONS PRECEDENT. This Agreement shall become effective and
the Bank shall make the Term Loan only if no Event of Default has occurred and
is continuing and upon receipt of the following in form and substance
satisfactory to the Bank:
A. The Term Note evidencing the term loan and real estate mortgage.
B. A certificate of the Secretary of the Company certifying the name of
the officer or officers of the Company authorized to sign this Agreement and
the other Loan Documents to which the Company is a party, together with a
sample of the true signature of each such person.
C. A written appraisal acceptable to the Bank that meets all recent OCC
and FIRREA lending appraised guidelines, reflecting a minimum fair market value
of $875,000.00.
D. A Title Insurance commitment, which shows that the proposed mortgage
will be a valid first lien on the property (following the repayment of the
first mortgage bonds) against the company's fee simple title with deletion of
Title Insurance Company Endorsements of the standing exceptions as requested by
the Bank or the Bank's Legal Counsel.
E. An acceptable Phase I Environmental Audit that reveals no environmental
hazards or defects in the property to be mortgaged.
F. Such other documents reasonably requested by the Bank.
VIII. MISCELLANEOUS. The Company shall reimburse the Bank for all costs and
expenses incurred by the Bank in connection with the Term Loan, including but
not limited to attorneys' fees (in the case of enforcement), appraisal fees,
filing fees, lien searches and credit investigations. No delay or omission on
the part of the Bank to exercise any right or remedy hereunder or at law or in
equity shall impair such right or power or be construed as a waiver of any
Event of Default, or shall any single or partial exercise of any right or
remedy by the Bank preclude any other or further
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exercise thereof. No amendment, modification, waiver or consent of the Bank
with respect to any provisions of this Agreement or any other Loan Document
shall be effective unless in writing and signed by the Bank. This Agreement
shall be binding upon and shall inure to the benefit of the Company and the
Bank in their respective successors and assigns. This Agreement shall be
governed by the laws of the State of Indiana.
Bioanalytical Systems, Inc.
By: \S\PETER T. KISSINGER
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Peter T. Kissinger, Pres.
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[printed name and title]
BANK ONE, LAFAYETTE, [national association]
Attest:
\S\SUE E. HUMPHREY-OAKLEY By: \S\MURRAY N. MARSHALL, V.P.
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Sue E. Humphrey-Oakley, Comm. Ln. Proc. Murray N. Marshall, V.P.
[printed name and title] [printed name and title]
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