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Exhibit 10.15
LOAN AGREEMENT
THIS AGREEMENT
is made this 29th day of October, 2002 by and among UNION PLANTERS
BANK, N.A., a national banking association BIOANALYTICAL SYSTEMS,
INC., an Indiana corporation ("BAS"), and BAS EVANSVILLE, INC., an
Indiana corporation ("BAS Evansville").
RECITALS
A.
Borrowers have requested certain credit facilities for the purpose
of refinancing existing indebtedness and funding construction in
West Lafayette and Mount Vernon, Indiana.
B.
Lender has agreed to provide the credit facilities requested by
Borrowers, upon the terms and subject to the conditions set forth
in this Agreement.
TERMS
In
consideration of the premises and the mutual promises set forth in
this Agreement, and subject to the terms and conditions set forth
in this Agreement, the parties agree as follows:
1.
Definitions . As used herein:
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a. “ADA
Agreement” means the agreement concerning compliance with the
Americans with Disabilities Act more particularly described in
Section 5(a), including any amendment, modification or replacement
thereof.
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b.
“Advance” means a disbursement of the proceeds of a
Loan.
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c.
“Agreement” or “Loan Agreement” means this
Loan Agreement, as amended from time to time.
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d.
“Borrower” or “Borrowers” means,
individually and collectively as the context requires, BAS and BAS
Evansville.
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e. “Business
Day” means a day on which the principal domestic office of
the Bank is open for the purpose of conducting substantially all of
its business activities.
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f.
“Environmental Certificate” means the certificate
concerning environmental matters described in Section
5(a).
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g. “Financing
Statements” shall have the meaning ascribed to such term in
Section 5(a), including any amendment, modification or replacement
thereof.
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h.
“Fixtures” shall have the meaning ascribed to such term
in the Indiana Uniform Commercial Code, as in effect from time to
time.
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i.
“GAAP” means generally accepted accounting principles
in the United States of America from time to time as promulgated by
the Financial Accounting Standards Board and recognized and
interpreted by the American Institute of Certified Public
Accountants.
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j.
“Indebtedness” means the debt obligation evidenced by
the Promissory Notes.
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k.
“Instruments” means the Promissory Notes, the Mortgage
(West Lafayette), the Mortgage (Mount Vernon), the Rent Assignment
(West Lafayette), the Rent Assignment (Mount Vernon), the ADA
Agreement, the Environmental Certificate, the Financing Statements
and any and all other loan instruments, agreements and documents
evidencing, securing or related to the Loans.
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l.
“Lender” means Union Planters Bank, N.A., a national
banking association, its successors and assigns.
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m. “Loan
Closing” means the closing of the Loans as more particularly
described in Section 5.
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n. “Loan
(Mount Vernon)” means the secured construction/term loan more
particularly described in Section 4, including any extension or
renewal thereof.
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o. “Loan
(West Lafayette)” means the secured construction/term loan
more particularly described in Section 3, including any extension
or renewal thereof.
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p. “Loan
(Mount Vernon) Conversion Date” means April 18, 2003, the
date on which Borrowers may no longer receive advances on the Loan
(Mount Vernon) Promissory Note and by which the construction of the
Project (Mount Vernon) shall be substantially
complete.
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q. “Loan
(West Lafayette) Conversion Date” means April 18, 2004, the
date on which BAS may no longer receive advances on the Loan (West
Lafayette) Promissory Note and by which the construction of the
Project (West Lafayette) shall be substantially
complete.
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r. “Loan
(Mount Vernon) Maturity Date” means May 1, 2008, the date on
which the indebtedness evidenced by the Loan (Mount Vernon)
Promissory Note is due and payable in full.
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s. “Loan
(West Lafayette) Maturity Date” means November 1, 2012, the
date on which the indebtedness evidenced by the Loan (West
Lafayette) Promissory Note is due and payable in full.
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t. “Loan
(Mount Vernon) Promissory Note” means the promissory note
more particularly described in Section 5(a), including any
amendment, modification, renewal, extension or replacement
thereof.
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u. “Loan
(West Lafayette) Promissory Note” means the promissory note
more particularly described in Section 5(a), including any
amendment, modification, renewal, extension or replacement
thereof.
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v.
“Loans” means, collectively, the Loan (Mount Vernon),
the Loan (West Lafayette) and the Term Loan.
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w. “Material
Adverse Effect” means any event, circumstance or condition
that could reasonably be expected to have a material adverse effect
on (a) the business, operations, financial condition, properties or
prospects of Borrowers, (b) the ability of Borrowers to perform
their respective obligations under the Instruments, (c) the
validity or enforceability of any of the Instruments, or any
material provision thereof or any transaction contemplated thereby,
or (d) the rights and remedies of Lender under any of the
Instruments.
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x. “Mortgage
(Mount Vernon)” means the mortgage and security agreement
described in Section 5(a), including any amendment, modification or
replacement thereof.
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y. “Mortgage
(West Lafayette)” means the mortgage and security agreement
described in Section 5(a), including any amendment, modification or
replacement thereof.
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z. “Permitted
Exceptions” means (a) the lien of current real property taxes
not then due and payable, (b) leases to tenants, copies of which
have been provided to Lender, and (c) easements and restrictions
and other matters that are described in the title insurance
commitment for the Real Estate (Mount Vernon) or the Real Estate
(West Lafayette), as applicable, as exceptions which are acceptable
to Lender in its sole discretion.
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aa. “Project
(Mount Vernon)” means the construction of a new
office/laboratory facility located at 1024 Middle Mount Vernon
Road, Mount Vernon, Indiana.
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bb. “Project
(West Lafayette)” means the expansion of BAS'S existing
facility located at 2700, 2701 and 2801 Kent Avenue, West
Lafayette, Indiana.
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cc.
“Promissory Notes” means the Loan (Mount Vernon)
Promissory Note, the Loan (West Lafayette) Promissory Note and the
Term Loan Promissory Note.
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dd. “Real
Estate” means, collectively, the Real Estate (Mount Vernon)
and the Real Estate (West Lafayette).
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ee. “Real
Estate (Mount Vernon)” means the real estate commonly known
as 1024 Middle Mount Vernon Road, Mount Vernon, Indiana, and
described on the attached Schedule A-2.
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ff. “Real
Estate (West Lafayette)” means the real estate commonly known
as 2700, 2701 and 2801 Kent Avenue, West Lafayette, Indiana, and
described on the attached Schedule A-1.
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gg. “Rent
Assignment (Mount Vernon)” means the collateral assignment of
rents and leases described in Section 5(a), including any
amendment, modification or replacement thereof.
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hh. “Rent
Assignment (West Lafayette)” means the collateral assignment
of rents and leases described in Section 5(a), including any
amendment, modification or replacement thereof.
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ii.
“Subordinated Debt” means indebtedness of a Borrower
expressly subordinated to the Indebtedness, in form and substance
acceptable to Lender.
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jj. “Term
Loan” means the loan more particularly described in Section
2, including any renewal or extension thereof.
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kk. “Term
Loan Maturity Date” means November 1, 2012, when the
indebtedness evidenced by the Term Loan Promissory Note is due and
payable in full.
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ll. “Term
Loan Promissory Note” means the promissory note more
particularly described in Section 5(a), including any amendment,
modification, renewal, extension or replacement
thereof.
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2.
Term Loan . Lender will lend to BAS, for the purpose of
refinancing existing indebtedness up to Five Million Four Hundred
Ten Thousand Dollars and No Cents ($5,410,000.00), in the form of a
term loan, upon the terms set forth in the attached Schedule
C.
3.
(Loan West Lafayette) . Lender will lend to BAS, for the
purpose of funding the Project (West Lafayette), up to Two Million
Two Hundred Fifty Thousand Dollars and No Cents ($2,250,000.00), in
the form of a non-revolving construction line of credit/term loan,
upon the terms set forth in the attached Schedule E.
4.
Loan (Mount Vernon) . Lender will lend to Borrowers, for the
purpose of funding the Project (Mount Vernon), up to Two Million
Three Hundred Forty Thousand Dollars and No Cents ($2,340,000.00),
in the form of a non-revolving construction line of credit/term
loan, upon the terms set forth in the attached Schedule
K.
5.
Loan Closing; Disbursement .
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a. Loan
Closing . The Loan Closing will be concurrent with the
execution of this Agreement. At the Loan Closing, the applicable
Borrower will execute and deliver to Lender, or when applicable,
cause to be delivered to Lender:
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1.
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Term Loan Promissory Note : a promissory note from
BAS in form acceptable to Lender and substantially in the form of
the attached Schedule D, evidencing the Term Loan
Indebtedness;
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2.
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Loan (West Lafayette) Promissory Note : a
promissory note from BAS in form acceptable to Lender and
substantially in the form of the attached Schedule F, evidencing
the Loan (West Lafayette) Indebtedness;
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3.
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Loan (Mount Vernon) Promissory Note : a promissory
note from Borrowers in form acceptable to Lender and substantially
in the form of the attached Schedule L, evidencing the Loan (Mount
Vernon) Indebtedness;
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4.
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Mortgage (West Lafayette) : a mortgage from BAS in
form acceptable to Lender and substantially in the form of the
attached Schedule G, granting to Lender a first priority mortgage
and security interest upon the Real Estate (West Lafayette) and all
Fixtures thereon, as security for payment of the Indebtedness and
performance of Borrowers' obligations hereunder and under the
Instruments;
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5.
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Mortgage (Mount Vernon) : a mortgage from BAS
Evansville in form acceptable to Lender and substantially in the
form of the attached Schedule M, granting to Lender a first
priority mortgage and security interest upon the Real Estate (Mount
Vernon) and all Fixtures thereon, as security for payment of the
Indebtedness and performance of Borrowers' obligations hereunder
and under the Instruments;
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6.
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Assignment of Rents and Leases (West Lafayette) :
an assignment of rents and leases from BAS in form acceptable to
Lender and substantially in the form of the attached Schedule H,
granting to Lender a first priority security interest in the leases
of all or any portion of the Real Estate (West Lafayette) and in
the rents payable thereunder, as security for payment of the
Indebtedness and performance of Borrowers’ obligations
hereunder and under the Instruments;
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7.
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Assignment of Rents and Leases (Mount Vernon) : an
assignment of rents and leases from BAS Evansville in form
acceptable to Lender and substantially in the form of the attached
Schedule N, granting to Lender a first priority security interest
in the leases of all or any portion of the Real Estate (Mount
Vernon) and in the rents payable thereunder, as security for
payment of the Indebtedness and performance of Borrowers’
obligations hereunder and under the Instruments;
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8.
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ADA Agreement : an agreement concerning compliance
with the Americans with Disabilities Act from Borrowers, in form
acceptable to Lender and substantially in the form of the attached
Schedule I;
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9.
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Environmental Certificate : a certificate
concerning environmental matters from Borrowers, in form acceptable
to Lender and substantially in the form of the attached Schedule J;
and
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10.
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UCC-1 Financing Statements : a UCC-1 Financing
Statement from Borrowers in favor of Lender in form acceptable to
Lender, as security for payment of the Indebtedness in respect of
the Loan (Mount Vernon) and performance of Borrowers’
obligations hereunder and under the Instruments, and a UCC-1
Financing Statement from BAS in favor of Lender in form acceptable
to Lender, as security for payment of the Indebtedness in respect
of the Term Loan and the Loan (West Lafayette) and performance of
BAS’s obligations hereunder and under the Instruments
(collectively, the “Financing
Statements”).
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At or before
the Loan Closing, Borrowers also shall satisfy the applicable
requirements set forth in the attached Schedule B.
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1.
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Term Loan : Subject to satisfaction of the
applicable requirements set forth in the attached Schedule B and so
long as there exists no Event of Default or no Event of Default
would be occasioned by the making of the Term Loan, the proceeds of
the Term Loan shall be disbursed to BAS at the Loan Closing or at
such other time as shall be mutually agreed by BAS and
Lender.
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2.
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Loan (West Lafayette) . Upon BAS’s request at
or after the Loan Closing and upon satisfaction of the applicable
requirements of the attached Schedule B (but not more frequently
than monthly), Lender will make an Advance under the Loan (West
Lafayette) Promissory Note in an amount equal to the out-of-pocket
costs incurred by BAS through the request date in construction of
the Project (West Lafayette). Not less than three (3) Business Days
prior to each such Advance, BAS shall satisfy the applicable
requirements set forth in the attached Schedule B. However, (a)
Lender’s obligation to disburse any such requested Advance
will be subject to satisfactory inspection of the Real Estate (West
Lafayette) by Lender or its representative; and (b) if on the date
that any such Advance is to be disbursed, an Event of Default under
this Agreement has occurred and is continuing, or if Borrowers are
in default in the payment of any indebtedness owed by them to
Lender, Lender will be relieved of its obligation to disburse any
Advance and of all further obligations hereunder.
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3.
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Loan (Mount Vernon) . Upon Borrowers’ request
at or after the Loan Closing and upon satisfaction of the
applicable requirements of the attached Schedule B (but not more
frequently than monthly), Lender will make an Advance under the
Loan (Mount Vernon) Promissory Note in an amount equal to the
amounts to be refinanced and the out-of-pocket costs incurred by
Borrowers through the request date in construction of the Project
(Mount Vernon). Not less than three (3) Business Days prior to each
such Advance, Borrowers shall satisfy the applicable requirements
set forth in the attached Schedule B. However, (a) Lender’s
obligation to disburse any such requested Advance will be subject
to satisfactory inspection of the Real Estate (Mount Vernon) by
Lender or its representative; and (b) if on the date that any such
Advance is to be disbursed, an Event of Default under this
Agreement has occurred and is continuing, or if Borrowers are in
default in the payment of any indebtedness owed by them to Lender,
Lender will be relieved of its obligation to disburse any Advance
and of all further obligations hereunder.
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6.
Fees and Expenses . Borrowers agree, forthwith upon demand
of Lender, to reimburse Lender for all costs and expenses Lender
incurs in connection with the Loans, whether or not such Loans
shall close, including, without limitation, Lender’s
reasonable attorneys’ fees, appraisal fees, title insurance
premiums, environmental investigation and report fees, survey fees,
recording and filing fees incurred in documentation of the Loans
and in the perfection of Lender’s security interests granted
herein or in the Instruments, and fees in connection with the
administration and enforcement of the Loans. BAS also agrees to pay
to Lender at the Loan Closing a nonrefundable commitment fee of
Twelve Thousand Six Hundred Sixty-Two Dollars and Fifty Cents
($12,662.50) in respect of the Term Loan and Eleven Thousand Two
Hundred Fifty Dollars and No Cents ($11,250.00) in respect of the
Loan (West Lafayette). In addition, Borrowers agree to pay to
Lender at the Loan Closing a nonrefundable commitment fee of Eleven
Thousand Dollars and No Cents ($11,000.00). Lender acknowledges
receipt of Ten Thousand Dollars and No Cents ($10,000.00) from BAS,
which amount shall be applied first to unreimbursed expenses and
then to BAS’s obligations for payment of the commitment
fees.
7.
Borrowers’ Representations and Warranties . To induce
Lender to enter into this Agreement and disburse the proceeds of
the Loans to the applicable Borrower(s), each Borrower represents
and warrants to Lender that each of the following statements is
true and correct as of the date hereof and each of them will
continue to be true and correct as of the date of the Loan Closing,
and as of the date of each disbursement of proceeds of the
Loans:
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a.
Marketable title in fee simple to the Real Estate (Mount Vernon) is
vested in BAS Evansville, and marketable title to the other
collateral given to secure payment of the Indebtedness is vested in
BAS Evansville, free and clear of any and all conflicting claims of
ownership, and free from any and all mortgages, encumbrances,
liens, security interests, leases, licenses, easements,
restrictions, except for Permitted Exceptions, and Borrowers will
defend the Real Estate (Mount Vernon) and the other collateral
against any person claiming an interest in such Real Estate (Mount
Vernon) or collateral adverse to the interest of
Lender;
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b.
Neither Borrower has made or assumed an assignment of rents from or
leases of the Real Estate (Mount Vernon), except the Rent
Assignment (Mount Vernon);
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c.
None of the provisions of this Agreement contravenes or is in
conflict with or creates an event of default under any provision of
any existing material indenture or agreement to which either
Borrower is a party;
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d.
Each financial statement of Borrowers delivered to Lender was
prepared in accordance with GAAP consistent with prior years,
unless specifically otherwise noted thereon, and fairly and
completely present in all material respects the financial condition
of Borrowers as of the date thereof and the results of their
operations for the period then ended, and discloses all known or
anticipated material liabilities, direct or contingent, of
Borrowers. No Material Adverse Effect has occurred subsequent to
the date of the most recent financial statements of Borrowers
delivered to Lender.
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e.
There are no actions, suits, proceedings or investigations pending
or, to Borrowers’ knowledge, threatened against either
Borrower or any of their respective properties in any court or
administrative agency, and neither Borrower is in violation of any
outstanding decree or order of any court or administrative
agency;
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f.
This Agreement and the Instruments evidence a business loan exempt
from the Federal Truth-In-Lending Act (15 USC 1601, et seq.), the
Federal Reserve Bank's Regulation Z (12 CFR 226, et seq.), and the
Indiana Uniform Consumer Credit Code (IC 24-4.5-1-101, et
seq.).
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g.
Neither Borrower is an “investment company” within the
meaning of the Investment Company Act of 1940, as amended,
or
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