Exhibit 10AC
------------
LIMITED WAIVER UNDER NOTE PURCHASE AGREEMENTS
This Limited Waiver Under Note Purchase Agreements (the "Waiver") is
made as of this 30th day of April, 1998 by and among Allstate Life Insurance
Company, Employers Insurance of Wausau A Mutual Company, State Farm Life
Insurance Company and Nationwide Mutual Fire Insurance Company (herein
collectively the "Purchasers") and Haemonetics Corporation, a Massachusetts
corporation (the "Company"). Capitalized words used as defined terms herein
and not otherwise defined shall have the meaning ascribed thereto in the
Note Purchase Agreements (as defined below).
WITNESSETH
WHEREAS, the Purchasers and the Company have entered into separate and
several Note Purchase Agreements each dated as of October 15, 1997 (the
"Note Purchase Agreements") relating to the issuance by the Company of
$40,000,000 in aggregate principal amount of its 7.05% Senior Notes due
October 15, 2007;
WHEREAS, Section 10.1 of the Note Purchase Agreements provides that
the Company will at all times keep and maintain Consolidated Stockholders'
Equity at an amount not less than $200,000,000; and
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Purchasers and the Company
hereby agree as follows:
1. Limited Waiver. The Purchasers hereby waive the Company's non-
compliance with the provisions of Section 10.1 of the Note Purchase
Agreements during the period commencing on March 28, 1998 and ending on
April 3, 1999 (the "Waiver Period"), but no other Default or Event of
Default which may exist under the Note Purchase Agreements or the Notes,
provided that the Waiver provided in this Section 1 shall terminate (a) if
at any time during the Waiver Period Consolidated Stockholders' Equity shall
be less than $185,000,000 or (b) if any covenant or agreement of the Company
in Section 2 of this Waiver is violated or breached during the Waiver
Period. Upon expiration of the Waiver Period or other termination of this
Waiver all covenants of the Company under the Note Purchase Agreements as in
effect prior to this Waiver shall be reinstated.
2. Representations, Warranties and Covenants of the Company. To
induce the Purchasers to grant the waiver requested herein, the Company
hereby represents, warrants and covenants to the Purchasers as follows:
(a) The representations and warranties of the Company contained
in the Note Purchase Agreements were true and correct when
made and are true and correct at and as of the date hereof,
except that all representations and warranties that expressly
related to specific financial statements of the Company are
deemed to be made herein with respect to the financial
statements of the Company as of and for the period ended
December 31, 1997, copies of which have been delivered to the
Purchasers.
(b) There exists no Default or Event of Default, after giving
effect to the waiver contemplated hereby, under the Note
Purchase Agreements or the Notes.
(c) The Company has not, directly or indirectly, paid or caused
to be paid any remuneration, whether by way of supplemental
or additional interest, fee or otherwise, or granted any
security, to any holder of the Notes or any other creditor of
the Company as consideration for or as an inducement to the
entering into by any holder of the Notes or any other
creditor of this Waiver or the Bank Waiver referred to in
Section 3 hereof.
(d) Notwithstanding anything to the contrary contained in Section
10.5 of the Note Purchase Agreements, during the period
commencing on March 28, 1998 and ending on April 3, 1999, the
Company shall not declare or pay any Restricted Payments (it
being expressly agreed that dividends or other distributions
payable solely in shares of common stock of the Company or
rights to acquire common stock of the Company shall be
permitted).
(e) The ratio of the Consolidated EBIT to Consolidated Interest
Expense (as defined below) shall not be less than 2.0 to 1.0
for any four fiscal quarter period ending during the period
commencing on March 28, 1998 and ending on April 3, 1999.
"Consolidated EBIT" shall mean Consolidated Net Income plus
interest and tax expenses of the Company and its Subsidiaries
during the period of determination, determined on a
consolidated basis after eliminating earnings or losses
attributable to outstanding Minority Interests, but excluding
in any event: (i) any restructuring charge taken by the
Company in its fiscal quarter ended December 27, 1997 and
(ii) any charge taken by the Company in its fiscal quarter
ended March 28, 1998 relating to the Company's disposition of
Blood Bank Management Services. "Consolidated Interest
Expense" shall mean all interest expense of the Company and
its Subsidiaries during the period of determination,
determined on a consolidated basis after eliminating interest
expense, if any, attributable to outstanding Minority
Interests.
3. Condition to Effectiveness. The effectiveness of the waiver
requested herein shall be subject to (a) the Purchasers' receipt of pro
forma financial statements reflecting the Company's forecasted sources and
uses of income and cash flows for its fiscal years 1998 through 2008, after
giving effect to the divesture of the Company's blood collection centers,
which financial statements shall be acceptable in form and substance in all
respects to the Required Holders and demonstrate that the Company remains
able to service its obligations under the Notes and otherwise (receipt of
which, by their execution below, is hereby acknowledged), (b) the Company's
and the Purchasers' receipt of this Waiver duly executed by the Company and
the Required Holders, and (c) the Company's receipt of a waiver (the "Bank
Waiver") under that certain Revolving Credit Agreement dated as of June 25,
1997 among the Company, as Borrower, and Mellon Bank, N.A., BankBoston, N.A.
and the Sanwa Bank, Limited, as the Banks, as the same may be amended,
modified or supplemented through the date hereof, which waiver shall waive
the Company's non-compliance with certain provisions contained therein in
form and substance satisfactory to the Required Holders.
4. Effect of Waiver. The Waiver set forth herein shall be limited
precisely as written and shall not be deemed a waiver or modification of any
other term or condition of the Note Purchase Agreements or to be a consent
to any future waiver of any provision thereof.
5. Note Purchase Agreements and Notes Ratified. This Waiver shall be
construed in connection with each of the Note Purchase Agreements, and
except as expressly modified by this Waiver, all terms, conditions and
covenants contained in the Note Purchase Agreements and Notes are hereby
ratified and shall be and remain in full force and effect.
6. Counterparts. This Waiver may be executed in any number of
counterparts, each of which shall be an original but all of which together
shall constitute one instrument.
7. Governing Law. This Waiver shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the law
of the State of Illinois.
* * * * * * * * * * * *
The foregoing waiver is hereby accepted and agreed to as of the date
first written above.
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
EMPLOYERS INSURANCE OF WAUSAU
A MUTUAL COMPANY
By:_____________________________
STATE FARM LIFE INSURANCE COMPANY
By:_____________________________
By:_____________________________
NATIONWIDE MUTUAL
FIRE INSURANCE COMPANY
By:_____________________________
HAEMONETICS CORPORATION
By:_____________________________
The foregoing waiver is hereby accepted and agreed to as of the date
first written above.
ALLSTATE LIFE INSURANCE COMPANY
By:_____________________________
By:_____________________________
EMPLOYERS INSURANCE OF WAUSAU
A MUTUAL COMPANY
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Attorney-in-fact
STATE FARM LIFE INSURANCE COMPANY
By:_____________________________
By:_____________________________
NATIONWIDE MUTUAL
FIRE INSURANCE COMPANY
By:_____________________________
HAEMONETICS CORPORATION
By:_____________________________
The foregoing waiver is hereby accepted and agreed to as of the date
first written above.
ALLSTATE LIFE INSURANCE COMPANY
By:_____________________________
By:_____________________________
EMPLOYERS INSURANCE OF WAUSAU
A MUTUAL COMPANY
By:_____________________________
STATE FARM LIFE INSURANCE COMPANY
By:_____________________________
By:_____________________________
NATIONWIDE MUTUAL
FIRE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Vice President, Municipal Securities
HAEMONETICS CORPORATION
By:_____________________________
The foregoing waiver is hereby accepted and agreed to as of the date
first written above.
ALLSTATE LIFE INSURANCE COMPANY
By:_____________________________
By:_____________________________
EMPLOYERS INSURANCE OF WAUSAU
A MUTUAL COMPANY
By:_____________________________
STATE FARM LIFE INSURANCE COMPANY
By:_____________________________
By:_____________________________
NATIONWIDE MUTUAL
FIRE INSURANCE COMPANY
By:_____________________________
HAEMONETICS CORPORATION
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Senior Vice President of Finance
