Attached files
| file | filename |
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| 8-K - FORM 8K DATED MARCH 11, 2010 - CAS MEDICAL SYSTEMS INC | form-8k_16763.htm |
| EX-10.4 - SECURITY AGREEMENT DATED AS OF MARCH 11, 2010 - CAS MEDICAL SYSTEMS INC | exh10-4_16763.htm |
| EX-10.2 - SECURITY AGREEMENT - CAS MEDICAL SYSTEMS INC | exh10-2_16763.htm |
| EX-10.1 - THIRD MODIFICATION AGREEMENT - CAS MEDICAL SYSTEMS INC | exh10-1_16763.htm |
| EX-10.3 - GUARANTY DATED AS OF MARCH 11, 2010 - CAS MEDICAL SYSTEMS INC | exh10-3_16763.htm |
EXHIBIT 10.5
Loan No.
17049
COMMERCIAL
LOAN AND SECURITY AGREEMENT
14476
Duval Place West, Suite 303, Jacksonville,
Florida 32218 (“Guarantor”)
WHEREAS,
Guarantor jointly, severally and unconditionally guaranteed the prompt payment
and performance of Borrower’s obligations to the Lender (as defined in the
Guaranty) by Guaranty dated May 16, 2005 (the “Guaranty”); and
WHEREAS,
Borrower’s and Guarantor’s respective obligations to the Lender are more fully
set forth in a Commercial Loan and Security Agreement dated May 16, 2005 (the
“Loan Agreement”), reference being hereby made to the Loan Agreement for the
definition of certain capitalized terms used herein and not otherwise defined;
and
WHEREAS,
Borrower’s obligations of payment and performance under the Note are secured by
(i) a Mortgage and a Collateral Assignment on the Borrower’s fee interest in the
real property known as 44 East Industrial Road, Branford, Connecticut, each
recorded on May 16, 2005 in the Branford land records and each subsequently
released by the Lender, and (ii) a pledge of Borrower’s stock in Guarantor
pursuant to Stock Pledge Agreement dated May 16, 2005 (“Stock Pledge”), and
Guarantor’s obligations of payment and performance under the Guaranty is
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secured
by a collateral assignment of their respective interest as tenant respecting
each Lease to which Guarantor is a party; and
WHEREAS,
as further security for the payment of the Loan and the Guaranty, and the
performance by Borrower and Guarantor of all of their respective obligations
under the Agreement and the other Loan Documents, Borrower and Guarantor have
also mortgaged, pledged and assigned to Lender, and given and granted to Lender,
a security interest in certain Collateral, all as set for the in the Loan
Agreement; and
WHEREAS,
in connection with the Note, Guaranty and Loan Agreement, Borrower
and Guarantor executed and delivered various other documents,
instruments, pledges and/or indemnities to Lender (including without limitation,
the Note, the Loan Agreement, and Guaranty hereinafter collectively, the “Loan
Documents”); and
WHEREAS,
Borrower and the Guarantor desire to modify
certain financial covenants contained in the Loan Agreement; and
WHERAS,
Lender has agreed to modify certain financial covenants upon the terms and
conditions hereinafter set forth, and upon the payment by Borrower of a
modification fee.
NOW,
THEREFORE in consideration of the mutual promises and covenants contained
herein, the parties hereto agree as follows:
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1.
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As
of the date hereof, the outstanding principal balance of the Loan is
$1,549,048.22.
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2.
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Section
2.7 of the Loan Agreement, Financial Covenants, is modified to read as
follows:
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“2.7 Financial
Covenants. Borrower and Guarantor, on a consolidated basis, shall
continuously maintain the following, calculated in accordance with GAAP, as
shown on the financial statements required to be provided pursuant to Section
2.6, and continuously in between such statements:
(B)
a minimum
debt service coverage ratio ( EBITDA divided by Debt Service)
of not less than 1.25 to 1.0, tested on a quarterly year-to-date basis from the
date hereof and at all times thereafter. EBITDA being “net income for
an accounting period, to which is added back: (i) interest expense; (ii) taxes;
and (iii) depreciation expense and amortization to the extent deducted from such
net income during such accounting period, all as determined by
GAAP”.
3. The
Lender shall, as provided in Section 2.4(J) of the Loan Agreement, perform a
field investigation, and Borrower shall pay the costs thereof. Said
investigation shall in no way limit or be deemed to satisfy Borrower’s and
Guarantor’s ongoing obligations under said Section 2.4(J).
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4. The
Loan Documents are hereby modified to incorporate the terms contained in this
Agreement. Any default in this Agreement shall be an Event of Default
as defined in the Note and Loan Agreement.
5. The
Borrower and Guarantor reaffirm all of the representations, warranties,
covenants (both affirmative and negative), waivers and indemnities contained in
the Loan Documents. All of the representations and
warranties set forth in the Loan Documents are true and correct as if made on
the date hereof except as waived in
conjunction herewith.
6. The
Guarantor hereby consents to the modifications contained herein and hereby
ratifies and confirms: (a) that it
jointly, severally and unconditionally guarantees to Lender the payment and performance
from and by Borrower of the Obligations of Borrower to Lender (as defined in the
Guaranty) and (b) such Obligations include, without limitation, the Loan
Agreement, as modified hereby. Guarantor acknowledges that its
reaffirmation and ratification of its
Guaranty is a material inducement for Lender to enter into this Agreement and
that Lender would not do so without said reaffirmation and
ratification. This Agreement and the Guaranty are the Guarantor’s
valid and binding obligation enforceable against them in accordance with their
terms.
7. The
Borrower and the Guarantor represent, acknowledge and affirm that neither
of them has any claim, defense, offset or counterclaim whatsoever
against Lender with respect to the Note, the Mortgage, Guaranty or any other
Loan Document, or the modifications made herein, and that Lender is relying on
this representation in agreeing to said modifications. The Borrower
and Guarantor further acknowledge that Lender would not agree to said
modifications unless the Borrower and the Guarantor made the representations
contained in this paragraph and elsewhere in this Agreement freely and
willingly, after due consultation with their attorneys. Borrower
further represents that this Agreement and all of the Loan Documents executed by
it are its valid and binding obligations and enforceable in accordance with
their terms and further represents that no Event of Default (as defined in the
Note or Loan Agreement) has occurred nor has there occurred any event or
condition which, with the giving of notice or the passage of time or both would
constitute an Event of Default except as
waived in connection herewith.
8. In
furtherance of the immediately preceding paragraph, Borrower and Guarantor
hereby release, and forever discharge the Lender, its officers, agents,
successors and assigns, from any and all claims, actions, causes of action,
obligations and liabilities of any kind known or unknown which the Borrower or
Guarantor have or may have as of the date hereof whether relating to the Note,
any Loan Document or any of the transactions contemplated hereby or consummated
in connection herewith, or any negotiations in connection with any of the
foregoing.
9. The
parties agree that nothing contained herein shall in any way impair the Note,
Guaranty, or any Loan Document, and the Collateral shall remain in all respects
subject to the lien, charge and encumbrance of the Loan
Agreement. The parties further agree that nothing contained herein or
modified pursuant to this Agreement shall affect or be construed to affect the
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lien,
charge or encumbrance of or warranty of title in or conveyance affected by or
the priority of the Loan Agreement, over other liens, charges and encumbrances,
or release or affect the liability of any other party or parties who may now or
hereafter be liable under, pursuant to, or on account of the Note and/or Loan
Agreement.
10. Capitalized
terms not otherwise defined herein shall have the same meaning as in the
document to which they refer. Except as modified by this Agreement,
the Note, and all other Loan Documents shall remain unchanged and in full force
and effect. Borrower and Guarantor shall keep and perform all of the
terms and agreements contained therein as may be applicable to
them.
11. This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their respective heirs, successors and assigns. This Agreement may
only be amended in
writing. Any
capitalized term not otherwise defined herein shall have the same meaning as
defined in the document to which it refers.
12. This
Agreement may be signed in one or more counterparts all of which shall
constitute one document and shall be construed under the laws of the State of
Connecticut.
13. THE
BORROWER AND GUARANTOR ACKNOWLEDGE THAT THE NOTE, THE GUARANTY, ALL LOAN
DOCUMENTS AND THIS MODIFICATION AGREEMENT RESULT FROM A COMMERCIAL TRANSACTION
AND THE BORROWER AND GUARANTOR HEREBY WAIVE ANY RIGHT TO NOTICE OR HEARING UNDER
THE CONSTITUTION OF THE UNITED STATES OR ANY STATE OR FEDERAL LAW, INCLUDING
CONNECTICUT GENERAL STATUTES SECTION 52-278a ET SEQ., AS NOW OR HEREAFTER
AMENDED, OR ANY SUCCESSOR ACT OR ACTS THERETO, AND WAIVE ANY REQUIREMENTS FOR
THE POSTING OF ANY BOND IN CONNECTION WITH ANY PREJUDGMENT REMEDY
SOUGHT. THE BORROWER AND GUARANTOR AUTHORIZE THE ATTORNEY FOR ANY
HOLDER OF THE NOTE TO ISSUE A WRIT FOR PREJUDGMENT REMEDY WITHOUT COURT
ORDER. BORROWER AND GUARANTOR ACKNOWLEDGE THAT THEY MAKE THIS WAIVER
KNOWINGLY AND VOLUNTARILY AFTER CONSULTATION WITH THEIR ATTORNEY.
14. THE
BORROWER AND GUARANTOR WAIVE TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION OR
PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH THE NOTE, GUARANTY, ANY LOAN
DOCUMENT, THIS AGREEMENT OR IN ANY WAY RELATED TO THE FINANCING TRANSACTIONS OF
WHICH THIS AGREEMENT IS A PART AND/OR THE DEFENSE OR ENFORCEMENT OF ANY OF
LENDER’S RIGHTS OR REMEDIES. BORROWER AND GUARANTOR ACKNOWLEDGE THAT
THEY MAKE THIS WAIVER KNOWINGLY AND VOLUNTARILY AFTER CONSULTATION WITH THEIR
ATTORNEY.
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15. Borrower
and Guarantor will, upon demand, furnish to the Lender such further information,
and will execute and deliver such instruments or documents, and will
do all such acts as the Lender may, at any time or from time to time, reasonably
request, or as may be necessary or appropriate to establish and maintain a valid
and enforceable first security interest of the Lender in the Collateral
described in the Loan Agreement. Borrower and Guarantor hereby authorize the
filing by Lender of any and all financing statements and any subsequent
amendments thereto with or without the Borrower’s or Guarantor’s
signature. Lender may, in its discretion, file all such financing
statements with an “all assets of Debtor” Collateral description.
Christian
M. McNamara (as to
all) Jeffery
A.Baird
Judy K.
Weinstein (as to
all) Jeffery Baird
Its Vice President
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