EXHIBIT 4.12
A. BORROWING AND AGENCY AGREEMENT
April 24, 1998
Xxxxx Brothers Xxxxxxxx & Co.
00 Xxxxx Xxxxxx, Xxxxxx
Xxxxxxxxxxxxx 00000
Gentlemen:
The undersigned, SeraCare, Inc., a California Corporation, with an
address of 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000
("SeraCare"), Avre, Inc., a Nevada corporation, with an address of 0000 X.
XxXxxxxx, Xxxxxxx, Xxxxxxx 00000 ("Avre"); Binary Associates, Inc., a
Colorado corporation with an address of 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000,
Xxx Xxxxxxx, Xxxxxxxxxx 90067("Binary"); SeraCare Acquisitions, Inc., a
Nevada corporation, with an address of 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000,
Xxx Xxxxxxx, Xxxxxxxxxx 00000 ("Acquisitions"); BHM Labs, Inc., an Arkansas
corporation, with an address of 000 X. 00xx Xxxxxx, Xxxx Xxxxx, Xxxxxxx 00000
("BHM"); Sera Care Technology, Inc., a Nevada corporation, with an address of
0000 Xxxxxxxx, Xxxxxx, Xxxxx 00000 ("Technology"); Western States Group,
Inc., a California corporation, with an address of 000 X. Xxxxx Xxxxxx, Xxxxx
X, Xxxxxxxxx, Xxxxxxxxxx 00000 are referred to as the "PRINCIPAL OBLIGORS"
and SeraCare, is referred to in such additional capacity as the "AGENT
BORROWER", have requested that you establish certain loan arrangements with
them (hereinafter the "Loan Arrangements"), and are today executing a
Revolving Loan and Security Agreement, Revolving Term Note and other
documents with Xxxxx Brothers Xxxxxxxx & Co. (hereinafter the "Lender"),
pursuant to which the Lender will make revolving credit loans, or otherwise
extend credit accommodations to the Principal Obligors, subject to the terms
and conditions therein set forth.
The undersigned request that as a convenience to them, such loans as may
be
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made under the Loan Arrangement be directed to the Agent Borrower which will,
in turn, distribute the proceeds thereof to the Principal Obligors. As an
additional inducement for Lender to establish the Loan Arrangements and to
direct such loans as may be made thereunder to the Agent Borrower, as
described above, each of the undersigned covenants and agrees as follows:
1. Loans and advances under the Loan Arrangement shall be requested
solely by the Agent Borrower as agent for the Principal Obligors. In
connection therewith each Principal Obligor has authorized the Agent Borrower
to execute promissory notes to the Lender from time to time to evidence the
liabilities, obligations and indebtedness of the Principal Obligors to the
Lender. The authority of the Agent Borrower so to request loans on behalf
of, and to bind, the Principal Obligors, shall continue unless and until
Lender actually receives written notice of the termination of such authority,
which notice is signed by the respective Presidents or Treasurers of each of
the Principal Obligors.
2. Any advances which may be made by Lender under the Loan
Arrangements which are directed to the Agent Borrower shall be received by
the Agent Borrower in trust for the Principal Obligors. The Agent Borrower
shall distribute the proceeds of any such advances solely to the Principal
Obligors for such uses as are permitted under the Loan Arrangements. Each
Principal Obligor shall be directly indebted to Lender for each advance
distributed to it by the Agent Borrower as if that amount had been advanced
directly by Lender to the Principal Obligor which received such proceeds. In
addition, the other Principal Obligors shall also be obligated to Lender in
such amount.
3. All advances by Lender to and for each Principal Obligor made
directly to the Agent Borrower under the Loan Agreement shall be based on the
collective Borrowing Base of all Principal Obligors pursuant to the terms of
such Loan Arrangement.
4. All notices to be made by Lender to all Principal Obligors shall be
deemed duly given if they are in writing and addressed to the Agent Borrower
at its address as set forth in the Loan Arrangements, or at any other place
such party may designate by notice in writing in accordance therewith.
5. The Lender shall have no responsibility to inquire as to the
distribution of loans and advances made by Lender through the Agent Borrower
as described herein. The Agent Borrower and each of the Principal Obligors
agrees to indemnify, defend, and to hold Lender harmless of, to, and from any
liability, claim, demand, expense, or loss made against Lender on account of,
or arising out of, the Loan Arrangements, and the Lender's reliance upon loan
requests made by the Agent Borrower.
6. The Lender may issue one monthly statement to the Agent Borrower on
behalf of all of the Principal Obligors, which statement shall cover all of
the loans and advances made by Lender through the Agent Borrower as described
herein and shall be deemed correct and accepted by the Agent Borrower and
each of the Principal Obligors, unless Lender is
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provided within fifteen (15) days of the receipt of that statement by Agent
Borrower with written notice by the Agent Borrower of exceptions with respect
to that monthly statement. Such notice shall set forth, with reasonable
particularity, the reasons for such exceptions.
7. In consideration of the continuance of the mutually beneficial
business relationships of the Principal Obligors, and to induce the Lender to
enter into the Loan Arrangements, each of the Principal Obligors hereby
agrees to guarantee the payment when due of the other Principal Obligors'
indebtedness to the Lender from time to time outstanding in accordance with
the terms of that certain Cross-Guaranty Agreement, of even date herewith, by
the Principal Obligors in favor of the Lender.
8. If any term or provision of this Agreement, or the application
thereof to any person or circumstance, shall to any extent be invalid or
unenforceable, the remainder of this Agreement, or the application of such
terms or provisions to persons or circumstances other than those as to which
it is invalid or unenforceable, shall not be affected thereby, and each term
and provisions of this Agreement shall be valid and be enforced to the
fullest extent permitted by law.
[INTENTIONALLY LEFT BLANK]
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Very truly yours,
PRINCIPAL OBLIGORS:
SeraCare, Inc.
---------------------- By: /s/ Xxxxx X. Xxxxx
--------------------------------
Xxxxx X. Xxxxx, Chairman and CEO
Avre, Inc.
---------------------- By: /s/ Xxxxx X. Xxxxx
--------------------------------
Xxxxx X. Xxxxx, Chairman and CEO
Binary Associates, Inc.
---------------------- By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, Chairman and CEO
SeraCare Acquisitions, Inc.
---------------------- By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, Chairman and CEO
BHM Labs, Inc.
---------------------- By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, Chairman and CEO
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SeraCare Technology, Inc.
---------------------- By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, Chairman and CEO
Western States Group, Inc.
---------------------- By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, Chairman and CEO
AGENT BORROWER
SeraCare, Inc.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, Chairman and CEO
Accepted: Xxxxx Brothers Xxxxxxxx & Co.
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Xxxxxx X. Xxxx, Deputy Manager
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